The Coca-Cola Co.

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Coca-Cola Company Foods Division and Citrus, Cannery, Food Processing and Allied Workers, Drivers, Warehousemen and Helpers Local 444, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 12-RC-4215 April 5, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director for Region 12 on October 18, 1972, an election by secret ballot was conducted on Novem- ber 9, 1972, under the Regional Director's direction and supervision, among the employees of the stipulated appropriate unit. Upon conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 35 eligible voters, 34 cast valid ballots, of which 2 were for, and 32 against, Petitioner. There were challenged ballots. Thereafter, on November 16, 1972, the Petitioner filed timely objections to conduct affecting the results of the election.' A copy of the objections was duly served on the Employer. In accordance with Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on December 18, 1972, issued and served on the parties his Report on Objections, in which he recommended that the objections be dismissed. Thereafter, Petitioner filed exceptions and a supporting brief to the Regional Director's report, limited solely to his recommendation to overrule Petitioner's Objection 1.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- I Although the Employer claimed it had not received the objections the Regional Director found that the delay was not attributable to Petitioner and that the Employer had not been prejudiced because of the delay In the absence of any exceptions thereto, we shall adopt pro forma the finding of the Regional Director concerning the timeliness of the receipt by the Employer of Petitioner's objections Ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its Auburndale Freezer Corporation plant, Auburndale, Florida, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. The Board has reviewed the entire record in this case, including the Regional Director's Report on Objections and Recommendations, the exceptions, and the brief and hereby adopts the Regional Director's report only to the extent consistent herewith. The only issue before us is Petitioner's Objection 1 alleging that Petitioner was denied full opportunity to communicate with employees by not being furnished or given access to a list of voters and their addresses, as required by our Decision in Excelsior Underwear, Inc., 156 NLRB 1236, in time for utilization of such list inasmuch as such list was not furnished to Petitioner until November 6,3 and the election was conducted on November 9. The critical facts in this case are not in dispute. In compliance with the Board requirements, the Employer submit- ted the required list to the Regional Office where it was received on October 24, and mailed by certified mail on the same date. However, the Regional Office's letter was misaddressed to Local 333, although correctly addressed to Petitioner's post office box number at Auburndale, Florida. The postal service at Auburndale received the letter on October 25. It, however, refused to turn the letter over to Petitioner.' The Petitioner on November 3 informed the Regional Office that it had not received the required list and was then furnished a copy of the list by the Regional Office on November 6. The Petitioner argues that its failure to receive the misdirected letter and having received the list "only hours before the election" inhibited and restricted Petitioner in carrying its message and responses to the Employer's literature to the employees in a timely manner. We agree. As the Board said in Rockwell Manufacturing Company, 201 NLRB No. 57: 2 Since no exceptions were filed to the Regional Director's recommenda- tion to overrule the Petitioner's Objections 2 and 3 we shall adopt his recommendation pro foram d All dates hereinafter are 1972 , unless indicated otherwise ' The postal service returned, as undelivered, the certified letter addressed to Local 333 to the Regional Office on November 13 202 NLRB No. 123 COCA-COLA CO FOODS DIVISION 911 Were we to permit substantial deviation from our Excelsior doctrine, it soon would become a requirement more honored in the breach than in observance. We have in numerous cases held employers to strict compliance with the requirements of the rule in the absence of any extenuating circumstances of sub- stance. While in this case the failure of the Petitioner to receive the list was due to a misaddressed letter on our part, we can only conclude that the Petitioner was prejudiced thereby. We therefore find merit in Objection I, and we shall set the election aside. ORDER It is hereby ordered that the election conducted November 9, 1972, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.]