Chemical Technology, Inc.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chemical Technology, Inc. and Amalgamated Munici- pal Employees Local Union 1231 of L.I.U., AFL- CIO, Petitioner. Case 5-RC-8682 November 4, 1974 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 6, 1974, the Regional Director for Region 5 issued his Second Supplemental Decision and Cer- tification of Results of Election in the above-entitled proceeding, in which he adopted the Hearing Officer's findings and recommendations overruling Petitioner's Objections 2 and 3, overruled, contrary to the Hearing Officer's recommendation, Objection 1 relating to Excelsior requirements, and certified that neither union ' had been selected as the exclu- sive representative of the employees in the appropri- ate unit.2 Thereafter, the Petitioner filed a timely re- quest for review of the Regional Director's Second Supplemental Decision and Certification of Results of Election on the grounds, inter aka, that he depart- ed from officially reported Board precedent in over- ruling Objection 1. On August 5, 1974, the Board by telegraphic order granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Regional Director, in disagreement with the Hearing Officer, found that the 6-day delay in fur- nishing an initial Excelsior list was "cured" by the subsequent submission 6 days before the election of a second list which corrected the inaccuracies and omissions I of the first list. He found substantial compliance with the purposes of Excelsior because the Petitioner was afforded sufficient opportunity under the circumstances of this case to inform the employees of its position as it had the original list for 20 days and could thereby reach 92 percent of the eligibles during that time and could ascertain and inform the additional 10 employees during the 6 days after receiving the second list. The request for review asserts that the Regional Director has "invented a totally new version of sub- stantial compliance" which entirely disregards the 7- day limit specified in the direction of election and ignores the Employer's "complete lack of excuse" as though these standards had never appeared in Board cases.4 It contends that the Regional Director's find- ing substantial compliance with Excelsior herein con- stitutes an unwarranted departure from such prece- dent as Rockwell Manufacturing Company, 201 NLRB 358 (1973). We agree. In that case, the Board set aside an election where the list was filed 11 days late and there were no extenuating circumstances of substance, rejecting the employer's assertion that the union had been afforded ample opportunity to com- municate with the employees because it had had a complete and accurate eligibility list in its possession for 23 days prior to the election. We also agree with the Hearing Officer's finding that 6 days' access to the second and more complete list was insufficient time to cure the substantial omissions from the initial list or to rebut the Board's presumption of prejudice to the Union's opportunity of access to unit employ- ees. As we recently stated, "the Board has consistent- ly held employers to strict compliance with the re- quirements of the Excelsior rule in the absence of extenuating circumstances of substance."5 The Hear- ing Officer found, and we agree, that extenuating cir- cumstances are absent here. Accordingly, we conclude that the Employer has not complied with the Excelsior requirements. We therefore find merit in Petitioner's Objection 1 and shall set the election aside.' i Industrial, Technical and Professional Employees, Division of National Maritime Union of America, AFL-CIO, was the Intervenor herein 2 There were 120 names on the two Excelsior lists submitted by the Em- ployer The tally of ballots for the election conducted on December 10, 1973, showed that, of 55 voters, 53 cast valid votes 18 for Petitioner, 7 for Intervenor, and 28 against the participating labor organizations , and 2 bal- lots were challenged The Acting Regional Director on January 31, 1974, issued a Supplemental Decision and Notice of Hearing in which he over- ruled the Petitioner's Objection 4 and ordered a hearing on the remaining Objections 1, 2, and 3 The list contained numerous inaccuracies , erroneously included the names of ineligible shift leaders and others, and omitted at least 10 eligible voters in a unit of 120 The number of omissions was substantial 4 They are contained within the statement of the Excelsior rule as stated in each direction of election since Excelsior Underwear Inc, 156 NLRB 1236 (1966) "[A[n election eligibility list, containing the names and addresses of all eligible voters, must be filed by the Employer within 7 days No extension of time to file this list may be granted except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed " 5 See Ben Pearson Plant, Consumer Division, Brunswick Corporation, 206 NLRB 532 (1973), setting aside an election because the union had had access to the Excelsior list for only 6 days prior to the election without allocating to anyone blame for such delay a In view of this finding , we find it unnecessary to consider the other issues raised in the request for review and relating to Objections 2 and 3 214 NLRB No. 50 CHEMICAL TECHNOLOGY, INC. 591 ORDER [Direction of Second Election and Excelsior foot- It is hereby ordered that the election conducted note omitted from publication.] herein on December 10, 1973, be, and it hereby is, set aside.