Hamlin-Overton Frame Co., Inc.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hamlin-Overton Frame Company, Inc. and United Furniture Workers of America, AFL-CIO, Peti- tioner. Case 7-RC-12835 July 29, 1975 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election approved on January 31, 1975, an election by secret ballot was conducted on February 13, 1975, under the direction and supervision of the Regional Director for Region 7 among the employ- ees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that, of approximately 48 eligi- ble voters, 43 cast ballots, of which 19 were for Peti- tioner, 22 for Intervenor,' 2 for neither union, and none were challenged. Thereafter, on February 19, 1975, the Petitioner filed timely objections to the election. In accordance with the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Direc- tor conducted an investigation and on April 10, 1975, issued and duly served on the parties his Report and Recommendations on Objections. The Regional Di- rector recommended that Petitioner's Objections I and 2 be overruled, that Objection 3 be sustained, and that the election be set aside and a new election held. Thereafter, the Employer and the Intervenor filed timely exceptions to the Regional Director's re- port, and the Employer filed a supporting brief. The Petitioner filed a brief in reply to the Employer's ex- ceptions and in support of the Regional Director's sustaining of Objection 3. 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. 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 pur- poses of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer 1 Woodworkers and Platers Union, Inc (IND.) was permitted to inter- vene in the hearing within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed by the employer at its 125 Elkenburg Street, South Ha- ven, Michigan, facility; but excluding all profes- sional employees, office clericals, guards and su- pervisors as defined in the Act. 5. The Board has considered the entire record in this proceeding, including the Regional Director's re- port and the exceptions and briefs, and finds as fol- lows:2 Petitioner argues in its Objection 3 that the elec- tion should be set aside under the Excelsior rule I because the Employer's lateness in filing the list led to Petitioner's having the list for only 6 days prior to the election. The election was set for the agreed-upon date of February 13, 1975, and it was accordingly necessary, under the Excelsior rule, for both unions to receive the Excelsior list by February 3, 1975. On January 20, 1975, the Region, pursuant to the agree- ment of all parties, mailed copies of the Stipulation for Certification Upon Consent Election to all the parties and requested that the copies be returned by January 27. The Employer and Petitioner returned their copies by January 27, but Intervenor's copy was not received by the Region until January 30. On Jan- uary 31, the Regional Director approved the stipulat- ed agreement and on that day sent the Employer a standard form requesting the Excelsior list and noted that the list was due in the Region by February 3. Apparently, there was a misunderstanding between the Region and the Employer as to whether an oral request for the list was made by the Region on or about January 28. Whatever the misunderstanding, the Employer did not receive the Region's written request for the Excelsior list until February 3. There- after, on February 3, the Employer mailed the Ex- celsior list to the Region, which in turn mailed copies of the list to both unions. The unions received the lists on February 7 and thus had them in their pos- session for only 6 days prior to the election. On or about February 3, the Region, having de- termined that the list would be submitted late, at- tempted to obtain agreement by all the parties to a week's postponement of the election. The Employer and Intervenor agreed to the postponement, but the 2 No exception having been taken thereto, we adopt the Regional Director's recommendation that Petitioner 's objections I and 2 be over- ruled 3 Excelsior Underwear Inc, 156 NLRB 1236 (1966). 219 NLRB No. 146 HAMLIN-OVERTON FRAME CO. 697 Petitioner objected on the ground that it had not been at fault for the delay. The Regional Director concluded that, regardless of whb was to blame for the late submission of the Excelsior list, Petitioner was prejudiced by its late receipt of the list. The Regional Director further found that Petitioner's refusal to agree to a postpone- ment of the election did not estop Petitioner from objecting to the election on the basis of not having received the Excelsior list 10 days before the election. We disagree with the Regional Director's latter conclusion, and we shall not set aside the election. In this case, a delay in the election of 1 week, as suggest- ed by the Region and agreed to by the Employer and the Intervenor, would have adequately cured the ef- fect of the late submission of the Excelsior list and permitted both unions access to the list for over 10 days. Petitioner argues for the right to proceed to an election on the agreed-upon date while also retaining the right to have the election automatically set aside, under the Excelsior rule, if it loses. However, it would be meaningless for the Board to conduct an election, where two unions are involved, and the losing union will have a built-in Excelsior objection. Where, as in this case, there was a reasonable way to cure the po- tential Excelsior objection prior to the election and all other parties agreed to it, we shall not allow the party that refused to agree to correct the Excelsior list problem to object later on the very basis it re- fused to correct. Under the circumstances of this case, we find that a week's delay in the election would have cured the effect of the late submission of the Excelsior list. As Petitioner, contrary to the Em- ployer and Intervenor, opposed the election delay that would have permitted both unions access to the Excelsior list for over 10 days, Petitioner is now es- topped from objecting to the election because of the late receipt of the Excelsior list. Accordingly, we shall overrule Petitioner's Objection 3. As we have overruled all the objections and as the tally shows that the Intervenor has received a majori- ty of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Woodworkers and Platers Union, Inc. (Ind), and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive represen- tative of all the employees in the unit found appro- priate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment. MEMBER KENNEDY, concurring: I concur in the result on the particular facts of this case. I think it significant that the Excelsior list was submitted immediately upon notification that the stipulation for certification had been approved by the Regional Director. However, I do not believe that any time an employer submits the Excelsior list late in an election involving two unions, the unions must agree to a postponement of the election or fore- go their right to object to the election because of the late submission of the Excelsior list. Such a general rule tends to encourage the late submission of the Excelsior list where postponement • of the election might be the result sought to be accomplished.