Houston Distributing Company, Inc.

HOUSTON DISTRIBUTING COMPANY, INC. Houston Distributing Company, Inc. and Harold Williams, Petitioner, and Brewery, Soft Drink, Industrial & Allied Workers Local Union No. 1111, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 23-RD-496 April 13, 1982 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered certain objections to a decertification election held November 12, 1981,' and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief filed by the Employer and hereby adopts the Regional Di- rector's findings and recommendations only to the extent consistent herewith.2 On November 17, 1981, the Union filed objec- tions to the election, two of which the Regional Director recommended be sustained in his report issued December 4, 1981. We disagree with the Re- gional Director's recommendation in both in- stances. The Union's first objection concerns the adequa- cy of the voter eligibility list provided by the Em- ployer. The Union contends that the list submitted by the Employer on October 20, 1981, failed to in- clude the names and addresses of 42 bargaining unit employees who were engaged in an economic strike against the Employer. The Employer ac- knowledged that the names were left off the voter eligibility list but maintains that because it had given the Union a list of the names, addresses, and telephone numbers of the strikers on September 11, 1981, during negotiations, it had complied with the requirements set out in Excelsior Underwear Inc., 156 NLRB 1236 (1966). The Regional Director, while acknowledging that the Board does not apply the Excelsior list rule mechanically, found the Employer's submission of a list lacking a substantial number of eligible voters fell short of the requirements of the rule. The Re- gional Director cited Custom Catering Inc., d/b/a Blue Onion, 175 NLRB 9 (1969), as authority for 'The election was conducted pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally was: 5 for, and 82 against, repre- sentation by the Union; there were 27 challenged ballots, a number insuf- ficient to affect the results. In absence of exceptions we adopt pro forma the Regional Director's recommendation that Objection 3 be overruled in its entirety. 261 NLRB No. 20 sustaining the objections. We find that case inappo- site and disagree with the Regional Director's deci- sion to sustain the objection. In Custom Catering the employer submitted an Excelsior list 1 day late leaving off the names of strikers as well as five re- placements. The list also contained several incor- rect addresses and two ineligible voters. Following a union protest, the employer filed a supplemental list which listed all but one of the strikers but failed to list the five replacements. The supplemental list was filed only 6 days before the election, much less than the 3-week period originally intended. By contrast, the Employer in this case provided the Union with the names and addresses of all employ- ees, in two separate lists, both of which were re- ceived well before the election. The egregious avoidance of an obligation manifest in Custom Ca- tering is simply not present in this case. The Em- ployer provided the Union with the names of em- ployees in ample time to allow the Union to make all potential voters aware of the election issues. As the Regional Director noted, the Board will not apply the Excelsior rule mechanically. To find an absence of compliance here would be just such a mechanical application. Accordingly, we find no merit in the Union's Objection I. The second objection concerns the description of the unit included in the Stipulation for Certification Upon Consent Election. The description included five classifications which were excluded from the unit in the most recent collective-bargaining agree- ment. The Union contends that the inclusion of the positions was error and that because those employ- ees voted in the election (without challenge) the election should be set aside. The Regional Director sustained the objection relying on the language in Brom Machine & Foundry Co., 227 NLRB 690 (1977), stating that the Board's policy of directing a decertification election in the existing bargaining unit would be frustrated if the parties could stipu- late to a different unit. Id. at 690.3 Contrary to the Regional Director, we certify the results of this election even under the rationale of Brom. That case involved challenges to the bal- lots of three employees in classifications included in a stipulated unit but excluded from the collec- tive-bargaining agreement. Those challenges were sustained on the ground that, regardless of the par- ties' stipulation, the employees were in classifica- tions which were excluded from the existing recog- nized unit.4 A Certification of Representative then 'See also Brom Machine & Foundry Co., 229 NLRB 1272 (1977), enfd. 569 F.2d 1042 (8th Cir. 1978). We note that this issue has traditionally been resolved through the challenge procedure. See, e.g., Warren Petroleum Company, 91 NLRB 1428 (1951). Fast Food Merchandisers Inc., 242 NLRB 8 (1979). 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued because the union had received a majority of the valid votes cast. Plainly, the Board found no need to set aside the election merely because it was conducted in a unit different from the existing bar- gaining unit. Here there were 14 employees in 5 disputed classifications. They were not challenged when they voted. Had they been challenged, and had those challenges been sustained under the rationale of Brom, a certification of results would still have issued as the 14 challenges would not have affected the outcome of the election. We see no reason to reach a different result simply because the Union raised this issue in its objections rather than by challenge. Indeed, to follow the Regional Director's approach would discourage the tradi- tional resolution of such matters through the chal- lenge procedure. Accordingly, we find no merit in the Union's Objection 11, and in view of the fore- going we certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Brewery, Soft Drink, Industrial & Allied Workers Local Union No. 1111, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 146