Texas Christian University

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas Christian University and North Central Texas Laborers' District Council, Local Union #1324, AFL-CIO, Petitioner. Case 16-RC-6695 September 16, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a petition filed on July 26, 1974, and pur- suant to a Stipulation for Certification Upon Con- sent Election executed by the parties and approved by the Regional Director for Region 16 of the Na- tional Labor Relations Board, an election by secret ballot was conducted on September 27, 1974, among the employees in an appropriate unit noted below. At the conclusion of the election, the tally of bal- lots showed that of approximately 129 eligible voters 124 cast ballots, of which 46 were for Petitioner, 70 were against, and 8 ballots were challenged. The challenges were insufficient to affect the election's results. On October 3, 1974, Petitioner filed timely objec- tions to conduct affecting the election. Thereafter, the Regional Director investigated the objections and, on December 23, 1974, issued and served on the parties his Report on Objections and Notice of Hear- ing in which he granted Petitioner's request to with- draw Objections 3 and 11 and decided that the re- maining objections raised substantial issues of fact and law which could best be resolved by a hearing. Accordingly, a hearing was conducted on January 13, 1975, before Hearing Officer Charles H. Steere for the purpose of taking evidence on issues raised by the balance of Petitioner's objections. Thereafter on February 26, 1974,' Hearing Officer Steere issued his report and recommendations on ob- jections in which he recommended that Petitioner's Objections 2 and 5 be sustained; that Objections 4, 6, 7, and 9 be overruled;2 and that the election be set aside on the basis of those objections he sustained. Thereafter, the Employer and Petitioner filed excep- tions to certain segments of the Hearing Officer's re- port and accompanying briefs. 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- 1 As supplemented by an erratum dated March 5, 1974. 2 During the hearing, Petitioner requested permission to withdraw Objec- tions I, 8 , and 10. There was no opposition to that request , and the Hearing Officer recommended that Petitioner 's request to withdraw Objections I. 8, and 10 be granted. thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 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 within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties agree, and we find, that the follow- ing employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All maintenance employees, custodial employ- ees, and ground crew employees employed by the Employer at its Fort Worth, Texas facility, excluding all other persons including lead per- sons, office clerical employees, guards, watch- men and supervisors as defined in the Act, as amended. 5. The Board has considered the Hearing Officer's report and recommendations, the Employer's excep- tions and brief, the Petitioner's exceptions and brief, and the entire record in the case and hereby adopts the Hearing Officer's findings, conclusions, and rec- ommendations to the extent consistent herewith.3 In his report, the Hearing Officer recommended sustaining Petitioner's Objections 2 and 5. For the following reasons, we disagree with those recommen- dations. Objection 2. In this objection, Petitioner alleged that the Employer "threatened employees with loss of benefits if they voted for the Union." In support of this objection, employee Charles Kennedy testi- fied concerning certain statements allegedly made by Bob Haubold, the director of the physical plant at Texas Christian University, at a preelection meeting of the grounds and maintenance crew. Crediting Kennedy's account of the meeting rather than the accounts of Haubold and E. Q. Swenson, the Employer's personnel director, whotwas also present at the meeting, the Hearing Officer found that Kennedy's testimony warranted the sustention of Objection 2. 3 In the absence of exceptions , we adopt pro forma the Hearing Officer's recommendations that Petitioner be allowed to withdraw Objections I, 8, and 10. Further , for the reasons the Hearing Officer has set out in his report, we adopt his recommendations that Petitioner's Objections 4, 6, 7, and 9 be overruled in their entirety. 220 NLRB No. 72 TEXAS CHRISTIAN UNIVERSITY Kennedy's testimony indicates that, in the course of the meeting, Haubold informed the employees of certain benefits they presently had at the Employer. Haubold indicated that, if Petitioner were voted in, the Employer "would have to more or less go along" and whereas there had always been an open-door policy at TCU where "anybody could come in and discuss their problem with the upper echelon of man- agement," Haubold said such a policy could not con- tinue if a union was present. Haubold then said that, in the past, when it was rainy or foul weather, the Employer had always found work for the employees but, if Petitioner came in, then the employees might have to be sent home without pay on inclement weather days. Haubold indicated that "we may have to go along with the union rules" in that regard. Kennedy, however, then asked Haubold about the inclement weather clause of the then-existing em- ployee handbook under which, Kennedy indicated, the employees had always worked and/or been paid in inclement weather. Swenson answered for the Em- ployer and indicated that if the employees had some- one "smart enough" to put it in their contract they would have such a clause. The Hearing Officer concluded that Haubold's statements constituted a prediction that, if Petitioner won the election, the Employer would retaliate by taking away the inclement weather benefit. We do not think an analysis of Kennedy's testimony sup- ports that conclusion. While in another context we might view differently Haubold's statement that "union rules" might lead the employees to lose an already existing benefit,4 here we find no objectionable conduct in this inci- dent in view of Swenson's followup statement. For Swenson, when asked by Kennedy about the inclem- ent weather clause and the policy under which the Employer had operated in the past, indicated that if the employees wanted such a clause in a contract between the Employer and Petitioner they should se- lect somebody "smart enough" to put it in that con- tract. Clearly, in this statement, Swenson indicated the Employer would not be adverse to such a clause and the total circumstances do not indicate the Em- ployer would retaliate for the selection of Petitioner by the abolition of the inclement weather benefit. Further, we find no background of employer conduct that might give a threatening color to the remarks made by Haubold 5 and, in such circumstances, we Thus without proof that Petitioner 's rules would cause such a result, seemingly putting the onus for such a conclusion on Petitioner. While the Hearing Officer appears to have concluded that the state- ments he found objectionable were not isolated , there is no evidence in the record supporting this conclusion . Kennedy himself testified no other al- leged withdrawal of benefits was made in his presence and there is no other 397 find the conduct complained of in Objection 2 does not warrant the setting aside of the election. Objection 5. In this objection, Petitioner contends that the Employer did not comply with the Board's requirements regarding the Excelsior list. The list supplied to Petitioner contained certain incorrect ad- dresses and omitted the names of certain employees, as explained below. The Hearing Officer recom- mended that the errors and omissions were sufficient to warrant the sustention of this objection, but we disagree with his recommendation. The Excelsior list supplied by the Employer con- tained 143 names and addresses. One additional name and address was supplied to Petitioner, after the list was sent, bringing the total number of names and addresses to 144. Of these, 26 were incorrect. At the preelection conference, Petitioner inquired about eight names not on the Excelsior list and was informed that two of the eight had been terminated prior to the mailing of the Excelsior list because of injuries; two others were part-time employees not in the bargaining unit; and the other four were part- time unit employees who were omitted from the list on advice of counsel and because the Employer be- lieved part-time employees were not covered in the unit. Swenson testified that the Excelsior list addresses were taken from the employee payroll records which, Swenson testified, he believed to be the best source for obtaining addresses. We note that, while the em- ployees' handbook contained instructions that changes of address should be promptly reported to the Employer's representatives, Swenson did concede that he had been lax in enforcing this policy. He ac- knowledged the Employer had no good way of main- taining addresses but indicated this was due to a high employee turnover rate-100 percent in the previous year-and because the employees moved frequently and left no forwarding addresses. In recommending that his objection be sustained, the Hearing Officer concluded that approximately 18 percent of the addresses on the Excelsior list were incorrect 6 and that the names of about 4 percent of the eligible voters were omitted from the list.' He allegation of any similar statement having been made by the Employer during the campaign. 6 In reaching a figure of 18 percent, the Hearing Officer based his compu- tation on the number of employees he found eligible to vote on the day of the election and the number of those employees whose addresses were inac- curate . The Hearing Officer should have made his computation based on the Excelsior list itself. However, based on that list, with 26 incorrect ad- dresses out of 144 employees listed, the percentage of inaccuracies in this case is still 18 percent. 7 To reach the figure on omissions, the Hearing Officer again incorrectly based his computation on the number of employees he found eligible to vote on election day rather than on the number of employees on the Excelsior list, plus the number of omissions . We note that, based on the Hearing Officer's own figures, the percentage of omissions should have been 3 per- cent, not 4 percent. We agree with the Hearing Officer that 4 names were Continued 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that the Employer's failure to make all possible efforts to correct the list indicated that a reasonable amount of diligence had not been exerted by the Employer. In this regard, the Hearing Officer noted that, after the Employer's first mailing, it dis- covered II address changes, and 8 letters were re- turned marked "Address Unknown." The Hearing Officer found the Employer did nothing to correct these errors after discovering them. It is well settled that the Board will not apply the Excelsior list rule mechanically 8 and that, generally, the Board will not set an election aside because of an insubstantial failure to comply with the rule as long as the employer has not been grossly negligent and has acted in good faith.9 Here, the Employer supplied the Excelsior list based on its best records. While that list contained a number of inaccuracies, there is no indication that at the time of the submission of the list the Employer was aware of the inaccuracies in the addresses."' And incorrectly omitted from the Excelsior list, but our percentage computation is based on the number on the Excelsior list, plus those omissions, or 4 omissions out of a total of 148. In this case, this yields a percentage of 3 percent. 8 See, e.g., Program Aids Company, Inc.., 163 NLRB 145 (1967). 9 See, e .g., Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB 588 (1968). 10 See Fontainebleau Hotel Corporation, 181 NLRB 1134, In. 1 (1970). while the Employer may have been negligent in not supplying the address changes it apparently received before the election, it was not grossly negligent in that regard." With respect to the omission of the names of the four unit employees, while we do not condone the Employer's action in excluding these employees, or its counsel's advising the Employer to do so, in the circumstances of this case, we do not think these errors were so substantial as to require the setting aside of the election.12 In these circum- stances, we overrule Petitioner's objection. Since we have overruled all of Petitioner's objec- tions which it has not otherwise withdrawn, we shall certify the results of the election held herein. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for North Central Texas Laborers' District Council , Local Union #1324, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees in the unit herein involved within the meaning of Sec- tion 9(a) of the National Labor Relations Act, as amended. 11 The Lobster House, 186 NLRB 148-149 (1970). See also Dr. David Al. Brotman Memorial Hospital, 217 NLRB No. 89 (1975). Member Fanning does not agree with the citation to Brotman. 12 See. e.g.. West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972).