Pole-Lite Industries Ltd.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pole-Lite Industries Ltd. and Teamsters Local Union 648, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Petitioner. Case 3-RC-6789 April 22, 1977 DECISION AND DIRECTION BY MEMBERS JENKINS, PENELLO, AND WALTHER Pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 3 on December 10, 1976,1 an election by secret ballot was conducted on January 6, 1977, under the Regional Director's direction and supervi- sion among employees in the stipulated unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 29 eligible voters for the election, 27 cast valid ballots, of which 14 were for and 13 were against the Petitioner. One ballot was challenged, which is sufficient in number to affect the results of the election. Thereafter, the Petitioner timely filed objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation, and on February 8, 1977, he issued and duly served on the parties his Report on Objections and Challenge. His report recommended that the chal- lenge by the Petitioner to the ballot of Hiriam Abare and Petitioner's Objections 2 and 3 be overruled, but Objection I be sustained. Thereafter, the Employer timely filed exceptions to the Regional Director's report insofar as it recommended that the results of the election be set aside on the basis of Objection I, which alleged that the Employer did not comply with the Excelsior rule.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 represent certain employees of the Employer. I All dates herein are in 1976, unless otherwise indicated. Excelsior Underwear Inc., 156 N LR B 1236 (1966). The Excelsior rule requires that, within 7 days after the Regional Director has approved a consent-election agreement entered into by the 229 NLRB No. 6 3. A question affecting commerce exists concern- ing the representation of employees of the Employer 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 following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees em- ployed by the Employer at its Champlain, New York facility and excluding all office clerical employees and guards, professional employees and supervisors within the meaning of the Act. 5. The Board considered the Regional Director's report, the Employer's exceptions and brief, and the entire record in the case, and hereby adopts the Regional Director's recommendation only to the extent consistent herewith. The Union contends in Objection I that the Employer failed to submit in a timely fashion a list of employees eligible to vote in the upcoming election, as required by Excelsior Underwear, supra, based on the fact that the list arrived 3 days late at the Board's Resident Office in Albany, New York, and that the Petitioner did not receive the list until 3 days later.3 Thus, the issue presented in this case is whether the Employer substantially complied with the require- ment of the Excelsior rule. By executing the Stipulation for Certification Upon Consent Election, the Employer agreed to be bound by the Board's requirement that the Excelsior list be filed within 7 days thereafter (by Friday, December 17). The Employer maintains that it sent a list to the Resident Office on December 17 via a commercial bus line to be hand-delivered on that date. Due to a delay in the arrival of the bus caused by the holiday traffic, the Employer contends, the list was not hand- delivered until Monday, December 20, the next business day. The investigation by the Regional Director reveal- ed that the Employer's list, which was received by the Board on December 20, failed to include the addresses of the eligible employees. The Resident Office contacted the Employer's attorney and ar- rangements were made to dictate the addresses telephonically to the Board, which was accomplished that same day. The list was also sent to the Petitioner on that day, December 20, and received on Decem- ber 23. parties, or after the Regional Director or the Board has directed an election, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. 156 NLRB at 123940. Such list is then forwarded to the union. 196 POLE-LITE INDUSTRIES LTD. The Employer asserts that inasmuch as the list was effectively received by the Board only 3 calendar days but merely 1 working day late, since Petitioner received the list 14 days prior to the election, and whereas the unit contained only 29 eligible voters, the Employer substantially complied with the Excel- sior rule. Thus, the election results should not be set aside, as the Regional Director recommended. In sustaining Petitioner's Objection 1, the Regional Director stated that, although the Board has held that the Excelsior rule need not be mechanically applied, there are no cases where the Board has found the employer to have substantially complied with the Excelsior requirement when the untimely filing was due solely to the employer's negligence and no extenuating circumstances were demonstrated by the employer. We disagree. An analysis of the Board cases on the issue of whether an employer has substantially complied with the requirements of the Excelsior rule, despite an untimely submission of the required list, demon- strates that three factors are taken into consider- ation: (I) the number of days which the list was overdue; (2) the number of days which the union has had the list prior to the election; and (3) the number of employees eligible to vote in the election.4 The first factor obviously derives directly from the Excelsior rule as literally stated, while the second and third factors derive from the policy behind the rule- to afford the union sufficient opportunity to commu- nicate with employees prior to an election so that all of the eligible voters will be exposed to the arguments for, as well as against, union representation. Excelsi- or, supra at 1241. 5 The Board has found that an employer substantial- ly complies with the Excelsior rule, although failing to submit the list in a timely fashion, in the following situations. In Program Aids Company, Inc., 163 NLRB 145, 146 (1967), the Excelsior list was submitted 4 days late, the union had the list 10 days before the election, and the number of employees eligible to vote totaled 50. And, in Taylor Publishing Company, 167 NLRB 228 (1967), the Board received the list I day late, the union received the list 9 days I See, e.g., cases cited hereinafter. . The Board has also taken into consideration on occasion certain mitigating or aggravating circumstances in determining whether an employer has substantially complied with the Excelsior rule despite an untimely submission. See United States Consumer Products, 164 NLRB 1187 (1967) (list submitted late because the union retracted its informal agreement with the employer that the former would withdraw its election petition; election not set aside); Idaho Supreme Potatoes, Inc., 218 NLRB 38 (1975) (lack of good faith on the part of the employer in providing the union with list; election set aside). See also The Coca.-Cola Company Foods Division, 202 NLRB 910 (1973); Ben Pearson Plant, Consumer Division, Brunswick Corporation, 206 NLRB 532 (1973); and Commercial Air Conditioning Co., Inc., d/b/a Sprayking, Inc., 226 NLRB 1044 (1976), for cases involving extenuating circumstances despite the absence of evidence that the employer failed to submit the Ercelsior list in a timely fashion. prior to the election, and the unit exceeded 1,000 employees.6 On the other hand, in Rockwell Manu- facturing Company, 201 NLRB 358 (1973), and Chemical Technology, Inc., 214 NLRB 590 (1974), the Board found that an employer did not substantially comply with the Excelsior rule because it failed to file the required list in a timely manner. In Rockwell, the list was filed II days late with the Board, the union received the list 23 days prior to the election, and the employees eligible to vote numbered over 200. In Chemical Technology, an initial Excelsior list (con- taining numerous inaccuracies and omission of 10 eligible voters) was submitted 6 days late, the supplemental list correcting the inaccuracies and omissions was available to the union only 6 days prior to the election, and the unit comprised about 120 employees. In light of the foregoing recitation of the applicable Board decisions, it is clear that the facts in the instant case establish that the Employer has substantially complied with the Excelsior requirement.7 Here, the 14 days in which the Union had the list in its possession prior to the election was ample time to communicate with the relatively small number of employees eligible to vote. Moreover, the late submission (3 calendar days but merely a single working day late) was not a substantial failure on the Employer's part to comply with its obligation under the Excelsior rule. Lastly, the results of the investiga- tion did not present, nor is it even alleged, that the late submission was due to a lack of good faith on the part of the Employer to provide the Union with the required information. In these circumstances, to set aside the election results would be tantamount to a mechanical application of the Excelsior rule, con- trary to existing Board precedent.8 Accordingly, as we find no merit in Objection 1, we shall issue the following Direction.9 DIRECTION It is hereby directed that the Regional Director for Region 3 shall, within 10 days from the date of this Decision, open and count the ballot of Hiriam Abare, prepare a revised tally of ballots, and, if the 6 See also The Singer Company, 175 NLRB 211, 212 (1969); Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB 588 ( 1968). I In fact, the facts herein demonstrate a more compelling case than did the facts in Program Aids Company, supra, in which the Board found substantial compliance with the Excelsior rule. In this case, each of the three factors considered by the Board constitutes less of a departure from the employer's obligation and less of a prejudicial effect upon the union than each of the factors in that earlier case. . Program Aids Co., supra. See also Singer Co., supra, Taylor Publishing Co., supra, United States Consumer Products, supra; Telonic Instruments, Div. of Telonic Industries, supra, Rockwell Manufacturing Co., supra; and Commercial Air Conditioning Co., supra. 9 In the absence of exceptions thereto, we adopt proforma the Regional Director's recommendations with respect to the challenged ballot and Objections 2 and 3. 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revised tally reflects that the Petitioner has received the majority of valid ballots cast, issue a Certification of Representative. However, if the revised tally reveals that the Petitioner has failed to receive a majority of the valid votes cast, the Regional Director shall issue a Certification of Results of Election. 198