Avon Products, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Avon Products, Inc. and United Steelworkers of America, AFL-CIO, Petitioner. Case 9-RC- 12883 June 8, 1982 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On November 28, 1979, the Regional Director for Region 9 issued his Decision and Direction of Election, in which he found appropriate a unit con- sisting of certain classifications of production and maintenance employees. On December 4, 1979, the Regional Director issued an "Erratum" to his deci- sion determining the voting eligibility of certain "reserve employees." Thereafter, the Employer filed a timely request for review of the Regional Director's decision, contending that his unit deter- mination was erroneous. By telegraphic order dated January 2, 1980, the Board granted the Em- ployer's request for review. Pursuant to the Decision and Direction of Elec- tion, an election by secret ballot was conducted on January 3, 1980, under the Regional Director's su- pervision among the employees in the unit set forth in the Direction, with employees in disputed classi- fications being allowed to cast challenged ballots. At the conclusion of the election, all ballots were impounded pending the Board's Decision on Review. On August 8, 1980, the Board issued its Decision on Review and Direction,' finding that approxi- mately 292 employees had been erroneously ex- cluded from the unit the Regional Director had found to be appropriate. Accordingly, the Board overruled the challenges to these ballots, sustained the challenges to the remainder, and directed the Regional Director to open and count the valid bal- lots and prepare and cause to be served on the par- ties a tally of ballots. On August 18, 1980, the parties were furnished with a tally of ballots which showed that there were approximately 1,324 eligible voters and that 1,324 ballots were cast, of which 425 were for the Petitioner, 895 were against, and 4 were unresolved challenges. The challenged ballots were not suffi- cient in number to affect the results of the election. Thereafter, the Petitioner timely filed objections to the election. Pursuant to Section 102.69 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an in- vestigation and, on September 24, 1980, issued and i 250 NLRB 1479. 262 NLRB No. 5 duly served on the parties his Report on Objec- tions, in which he recommended that the Petition- er's objections be overruled in their entirety and the results of the election certified. Thereafter, the Petitioner timely filed exceptions to the Regional Director's report and a supporting brief, and the Employer filed an answering brief. 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 purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The following employees of the Employer 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 at the Employer's Springdale, Ohio, operations in- cluding all employees employed in the repre- sentative service department, data processing department, shipping department, transporta- tion department, merchandise control depart- ment, inventory, cost, and planning depart- ment, material handling department, process- ing department, packaging department, quality assurance department, production control de- partment, engineering department, and "re- serve employees"; but excluding all office clerical employees; the secretarial clerk, auditor/trainers, office supply clerk, and each sales clerk in the representative service depart- ment; the department secretary in the data processing department; the line balance analyst and department secretary in the shipping de- partment; the department secretary in the transportation department; the department sec- retary in the merchandise control department; the inventory analyst, accountant, and depart- ment secretary in the inventory, cost, and planning department; the department secretary in the material handling department; the de- partment secretary in the processing depart- ment; the department manager's secretary, de- partment secretary, and administrative clerks 46 AVON PRODUCTS, INC. in the packaging department; the department secretaries and chemists in the quality assur- ance department; the department analyst, stock distributer, scheduler, and department secre- tary in the production control department; the department secretary in the engineering de- partment; all employees in the industrial engi- neering and purchasing departments; all tour hostesses not otherwise employed in positions included in the unit; and all guards, profession- al employees, and supervisors as defined in the Act. The Board has considered the entire record in this proceeding, including the Petitioner's objec- tions, the Regional Director's report, the Petition- er's exceptions and brief, and the Employer's brief, and hereby adopts the Regional Director's findings, conclusions, and recommendations only to the extent consistent herewith. In its objections, the Petitioner contends that the election should be set aside because 292 employees whose names and addresses did not appear on the Excelsior list2 cast valid ballots in the election due to the Board's Decision on Review, which expand- ed the size of the unit by that number. The facts are not in dispute. The Employer timely filed a list of names and addresses of all em- ployees in the unit the Regional Director found ap- propriate, thereby complying in full with the literal requirements of Excelsior. As noted earlier, the Employer also filed a request for review, which the Board granted on January 2, 1980.3 The elec- tion was held the following day. Close to 300 em- ployees, whom the Employer contended, and the Board later found, should have been included in the appropriate unit cast challenged ballots. Their names and addresses did not appear on the Excelsi- or list, and at no time did the Petitioner request that a supplemental list be furnished. The Regional Director found that the failure of the Petitioner to have received timely a complete list of all voters ultimately found eligible, in these circumstances, did not warrant setting aside the election. The Regional Director noted that (1) the ' Excelsior Underwear Inc., 156 NLRB 1236, 1239-40 (1966), requires that: . . within 7 days after the Regional Director has approved a con- sent-election agreement entered into by the parties pursuant to Sec- tion 102.62 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, or after the Regional Director or the Board has directed an election pursuant to Sections 102.67, 102.69, or 102.85 thereof, the employer must file with the Regional Director an eligibility list containing the names and addresses of all eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this re- quirement shall be grounds for setting aside the election whenever proper objections are filed. s All dates herein are in 1980, unless otherwise indicated. Petitioner participated in the ballot count on August 18 without objection; (2) the Employer submitted an Excelsior list meeting the requirements of the Decision and Direction of Election; (3) when the Board granted the Employer's request for review, it imposed no additional requirements on the Employer to furnish the names and address- es of the employees it contended should be includ- ed in the unit; (4) since the election was held the day after the request for review was granted, the Employer probably would not have been able to produce a list on such short notice, nor would the Petitioner have been able to use it if produced; and (5) at the representation hearing, the Petitioner took the position that it would not participate in an election held in a unit larger than that which it sought to represent, and which was found appro- priate by the Regional Director. Accordingly, the Regional Director found that when the Board an- nounced it would grant the Employer's request for review, the burden fell on the Petitioner to request a supplemental list of those employees who would be permitted to cast challenged ballots so that it could communicate with them if it chose to do so, and to request a postponement of the election. He reasoned that the Board's action in granting review put the Petitioner clearly on notice that the Board might find appropriate the broader unit urged by the Employer. The Petitioner's failure to take steps prior to the election to secure the disputed names or to have the election postponed, when combined with the Employer's full compliance with the re- quirements of the Excelsior rule, led the Regional Director to conclude that it would be improper to allow the Petitioner to rely on its own inaction as a ground for setting aside the election. 4 The single issue to be considered is whether the Petitioner suffered prejudice in its election cam- paign because it received an Excelsior list which the Board's Decision on Review, by broadening the scope of the appropriate unit, rendered defi- cient. The principal rationale underlying Excelsior is that, by having timely access to the names and addresses of eligible voters, the union will be af- forded an opportunity to inform all eligible em- ployees of its position so that the employees will be able to vote intelligently. Therefore, in cases where the employer has omitted a substantial number of names from the Excelsior list, the Board has con- sistently set aside the election and directed that an- 4 The Regional Director stated that his conclusion was buttressed by the fact that the Employer and the Petitioner, apparently anticipating that the Board might grant review, jointly requested on or about Decem- ber 31, 1979. that the ballots be opened and counted immediately afer the election rather than impounded as is customary in such situations The request was denied. 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other be conducted. s The record in the instant case shows that the Union did not have access to the names and addresses of 292 out of 1,324, or 22 per- cent, of those employees who actually cast valid votes in the election. We do not agree with the Regional Director that the Petitioner bore the responsibility for not having received a complete list of eligible voters. We find that the Petitioner was under no obligation to seek the names and addresses of several hundred em- ployees whose status as bargaining unit employees was in dispute and pending review at the time of the election. Despite the Board's grant of review, the Petitioner could not reasonably have been ex- pected, especially with the election being run the next day, to assume that the unit the Regional Di- rector found to be appropriate would be expanded on review and to govern its actions accordingly. In a situation such as this, the onus is not on either the Union to seek, or the Employer to compile, a list of all potential voters. Rather, the responsibility is the Board's to effectuate the policies expounded in Excelsior by staying the election until the unit has been determined. The Employer argues that it delivered to the Re- gional Office precisely the list it was directed to provide under the Regional Director's Decision and Direction of Election and that it complied with Excelsior to the letter. The Employer also argues (1) that the election petition should have been dismissed based on the Petitioner's previously stated position that it would not participa te in an election if a unit larger than that which it sought to represent was found appropriate; (2) that the provi- so at the end of Section 102.67(b) of the Board's Rules and Regulations implicitly sanctioned the conduct of the election with the Excelsior list re- ceived by the Union; (3) that the Board decided the issue here when it directed the ballots to be opened and counted; and (4) that the employees were in fact well informed about the election issues. While we readily acknowledge that the failure of the Petitioner to receive a list containing the names and addresses of the 292 employees who cast chal- lenged ballots, and who were included in the unit, was not due to any shortcoming on the Employer's part, but was caused instead by our own procedur- al oversight, we can conclude only that the Peti- tioner was prejudiced thereby. Since the Board's e EDM of Texas Div. of Chromalloy American Corp., 245 NLRB 934 (1979) (16 out of 150 eligible voters, or 11 percent, omitted); Chemical Trcinasoo Inc., 214 NLRB 590 (1974) (10 out of 120 eligible voters, or 8 percent, omitted); Sorarrel, Inc, 188 NLRB 969 (1971) (5 out of approxi- mately 46 eligible voters actually voting, or I I percent, omitted); Pacific GCamb Robinson Ca/Omnaha Branch d/b/a Gamble Robinson Co., 180 NLRB 532 (1970) (4 out of 36 eligible voters, or 11 percent, omitted). Excelsior policy was designed to enhance the avail- ability of information and arguments to employees so that they might render a more informed judg- ment at the ballot box, it follows that the degree of prejudice to these channels of communication, and not the degree of employer fault, must ultimately determine, in any given case, whether the Board's Excelsior policy has been undermined. In The Coca- Cola Company Foods Division,6 for example, the employer timely filed the required Excelsior list, but the Regional Office misaddressed the envelope when it forwarded it to the union. The union in- formed the Regional Office that it had not received the list and was not furnished with a copy until 3 days before the election. Despite the employer's full compliance with Excelsior, the Board conclud- ed that the union's late receipt of the Excelsior list warranted setting the election aside. The Board also overturned an election in American Laundry Machinery Division, a McGraw Edison Company," even though the employer had substantially com- plied with Excelsior. In that case, the Board found that delays by the U.S. Postal Service and Board error combined to cause receipt of the Excelsior list 8 days late, thereby prejudicing the union. Accordingly, as the Petitioner was completely deprived of Excelsior information regarding nearly a quarter of those who cast valid ballots by our failure to stay the election pending the Decision on Review, we are compelled to find that the Petition- er has suffered substantial prejudice and that the election must be set aside.8 We agree with our dissenting colleague that the situation here was unfortunate-due largely to cir- cumstances beyond the Board's control. We do not agree, however, that resolving it against the em- ployees' right to be informed as contemplated in Excelsior is a proper resolution of the issue. e 202 NLRB 910 (1973). ' 234 NLRB 630 (1978). 8 In so finding, we recognize that the election was conducted pursuant to Sec. 102.67(b) of the Board's Rules and Regulations, which requires the Regional Director to conduct an election directed by decision not- withstanding that a request for review has been filed with or granted by the Board. That section, however, also states that '[t]he filing of such a request shall not, unless otherwise ordered by the Board, operate as a stay of the election...." (Emphasis supplied.) It therefore was contemplated that the 102 67(b) procedure might not be appropriate in all cases. Clear- ly it was not appropriate here. The disparity between the size of the unit in which the election was directed and the unit sought on review neces- sarily raised the Excelsior issue and should have led the Board under the circumstances to order a stay of the election until such time after review as one could appropriately be conducted in compliance with the Excelsior requirement. The Board's failure to do so does not now preclude rectifi- cation of this oversight. Indeed, the contrary conclusion would result in the elevation of form over substance. 48 AVON PRODUCTS, INC. ORDER It is hereby ordered that the election of January 3, 1980, among the unit of employees hereinbefore set out, be, and it hereby is, set aside. [Direction of Second Election9 omitted from publication.] CHAIRMAN VAN DE WATER, dissenting: I am compelled to dissent from my colleagues' decision on two basic grounds. First I note the un- fortunate delay in rendering decisions to the parties in this case. Secondly, I cannot agree with the ma- jority's acknowledgment that it was their "proce- dural oversight" in ordering an election in an ex- panded unit which has resulted in prejudice to the Petitioner and warrants setting aside an election conducted over 2 years ago. For the reasons noted hereafter, a practical resolution of the problems posed would be to simply overrule the objections, certify the results, and insure that future decisions expressly offer to petitioners the option to postpone the election to permit receipt of an updated Excel- sior list. 0o Briefly, it is self-evident that timeliness in render- ing our decisions is an important consideration in all types of cases pending before this Agency, par- ticularly in the representation case area."I In some instances, timeliness may be more important than the ultimate decision on the merits. On August 18, 1980, the parties were furnished a tally of ballots which established that, of 1,324 votes cast, 425 were in favor of the Petitioner and 895 were against the Petitioner. The Petitioner filed timely objections shortly thereafter. Obviously a timelier decision would have better served the interests of the parties. As to the merits, I find unfounded my col- leagues' assertion that the Petitioner was preju- diced here as the facts clearly indicate to the con- trary. The claim of prejudice is predicated on the fact that the Board, by expanding the unit by 292 employees and permitting them to vote a challenged ballot although such employees' names and ad- dresses had not been submitted as part of the Excel- sior list, made it impossible for the Union to con- tact such employees so that they could be part of an informed electorate. Inasmuch as the Union lost the vote by a difference of 470 votes, the 292 votes, even assuming arguendo, that they would have voted unanimously for the Union, could not [Excelsior footnote omitted from publication.] 10 Excelsior Underwear Inc., 156 1236 (1966). " I note, parenthetically, that the five-member Board was not at full strength for some months. have affected the results of the election. Thus, there was, in fact, no prejudice to the Petitioner. The majority further argues, however, that it is important as a matter of principle, that there be full compliance with the Excelsior rule. I concur with the majority's view that an employer's failure to comply with the Excelsior rule warrants the imposi- tion of what amounts to a per se rule setting aside such election when such objection is timely filed. Having such a rule will help insure that an employ- er will comply with the Excelsior rule or face the possibility of a rerun election. But the circum- stances here do not warrant the imposition of such a per se rule nor do they warrant the majority's as- sumption that its "procedural oversight" resulted in prejudice to the Petitioner. I concur in the Regional Director's dismissal of the Petitioner's objections, noting, as he did: (1) the Union took the position at the representation hear- ing that it would not participate in an election in a unit larger than which it sought to represent; (2) after the Board issued its Decision on Review in which it ordered the 292 challenged ballots counted, the Union participated in the ballot count on August 18, 1980 without objection; (3) the Employer had submitted an Excelsior list which met the requirements of the Decision and Direction of Election; and (4) the burden of seeking a postponement of the election rested with the Petitioner when the Board granted review and permitted the employees whose status was in issue to vote a challenged ballot. In effect, the Regional Director concluded, and I concur, that it was improper for the Petitioner to rely on its own inaction as a ground for setting aside the election. If there were any "procedural oversight," it was the Board's ordering the tally of the chal- lenged ballots when the Union had earlier indicated that it did not wish to seek an election or represen- tation of a unit other than what it sought. In sum, I find no prejudice to the Petitioner and the majority's insistence on a rerun election does not constitute a proper utilization of the Board's re- sources. I think it more essential that in any deci- sions granting review where an election is being conducted in an expanded unit that the petitioner be explicitly informed in our decision of its option to: (a) seek a postponement of the scheduled elec- tion because of the expanded unit and have the right to an updated Excelsior list or (b) proceed to the election in the expanded unit waiving any Ex- celsior objections on the basis of the expanded unit or (c) withdraw from the election because it was not in the unit sought. 49