C & G Markets, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C & G Markets, Inc , d/b/a Gerland's Food Fair and Jeannine J Rico, Petitioner, and Untied Food & Commercial Workers Local Union No 455, AFL-CIO Case 23-RD-525 24 September 1984 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board, by a three- member panel, has considered objections to a de- certification election held 9 June 1983 and the hearing officer's report recommending disposition of them The election was conducted pursuant to a Stipulated Election Agreement The tally of ballots shows 90 for and 85 against the Petitioner, with 14 challenged ballots, a sufficient number to affect the results The Board has reviewed the record in light of the exceptions, and has adopted the hearing offi- cer's findings' and recommendations only to the extent consistent with this decision and finds that the election must be set aside on the basis of Objec- tion 3 and a new election held 2 The hearing officer concluded that the Employ- er's Objection 3 be overruled He found that the in- dividual Petitioner was not prejudiced in communi- cating her union views to employees as a result of the Regional Office's failure to serve her with a copy of the Excelsior list 3 We disagree The facts in this case are not in dispute The Em- ployer operates 4 retail grocery stores and employs approximately 250 employees Three of the stores are in Galveston, Texas, and the fourth store is lo- cated 70 miles away in Humble, Texas In compliance with Board requirements, the Em- ployer submitted the Excelsior list to the Regional Office 25 May 1983 4 That same day, the Regional Officer furnished the list to the Union However, due to an administrative oversight the Regional Office did not serve the individual Petitioner, Jean- nine Rico, with a copy of the list nor did she ever request the list from the Office 1 The Employer has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the Issues and the positions of the parties 2 In view of our determination that the election be set aside on the basis of Objection 3, we find It unnecessary to pass on the Employer s exceptions to nine of the challenged ballots 3 The Excelsior rule requires that, within 7 days after the Regional DI rector has approved a consent election agreement entered Into by the parties, or after the Regional Director or the Board has directed an elec lion, the employer must file with the Regional Director an election eligi Nifty list, containing the names and addresses of all the eligible voters Excelsior Underwear, 156 NLRB 1236, 1239-40 (1966) Such list is then forwarded to the union or petitioning party 4 All dates are in 1983 unless otherwise indicated On 3 June, 6 days prior to the election, the Peti- tioner requested from her store manager the names and addresses of all eligible voters at the four stores because she wanted to mail them a campaign letter to express her opposition to the Union Later that day, the store manager gave the Petitioner a copy of the Excelsior list On 4 June the Petitioner prepared her campaign letter and mailed it to the voters 5 June Apart from this letter the Petition- er's other means of communicating her union views to employees were by talking to a few coworkers while working and conversing with some by tele- phone in the evenings The Petitioner testified that prior to 3 June she was unaware of her entitlement to the Excelsior list and that she would have sent her campaign letter out earlier if she had received the list sooner However, she also stated that she had received election materials from the Regional Office, but had never made any inquiries to the Office regarding an Excelsior list of the voters She testified that she wanted to wait "almost to the end of the campaign to mailout" believing that the letter would then have a greater impact on the em- ployees After the election several employees told the Petitioner that they had received her letter, but it "arrived a little too late The hearing officer found that the Petitioner was not prejudiced in her ability to communicate her views to voters by the late receipt of the Excelsior list The hearing officer determined that the Peti- tioner did not need the list until 3 June as demon- strated by the Petitioner's wanting to wait until the end of the campaign to do her mailout and from the dates of preparation and mailout of the cam- paign letter The hearing officer further found un- persuasive the Petitioner's testimony that she would have sent the letter earlier if she had re- ceived the list sooner and apparently reasoned that the responsibility to acquire the list shifted to the Petitioner since she had received election informa- tion from the Regional Office and had never con- tacted the Office for the actual list Based on these findings the hearing officer concluded that the Pe- titioner was not prejudiced by the Regional Of- fice's total failure to serve her a copy of the Excel- sior list Contrary to the hearing officer, we find that the Petitioner has suffered substantial prejudice in her ability to adequately inform voters of her opposi- tion to the Union as a result of the Regional Of- fice's noncompliance with the Excelsior rule Since the Excelsior policy was designed to enhance the availability of information and arguments to em- ployees, it follows that any disruption in these channels of communication can undermine the policy Here, the Petitioner, who campaigned 272 NLRB No 52 GERLAND'S FOOD FAIR 295 alone, had the task of communicating her position to 175 voters This task was compounded inasmuch as eligible voters were spread between four stores The Petitioner's only viable means of communicat- ing her views to employees was by mail Because of the Region's failure to serve the Petitioner with an Excelsior list, she did not have an adequate op- portunity to timely advise employees of her views with respect to the Union This lack of opportunity was evidenced by employee comments that they received the list "a little too late" and by the Peti- tioner's statement that she would have sent the letter earlier if she received that letter sooner Furthermore, we do not agree with the hearing officer that, because the Petitioner received elec- tion information from the Regional Office, she bore the responsibility of acquiring the list from the Office The instant case is clearly distinguishable from Red Carpet Maintenance Corp, 263 NLRB 1285 (1982) In Red Carpet we found that a union was not prejudiced by a 1-day delay in its receipt of the list Unlike Red Carpet, here the Petitioner never received the list from the Regional Office and the Petitioner is not a lawyer or union official who is familiar with Board election procedures Therefore, the Petitioner was under no obligation to take affirmative steps to acquire the list In these circumstances, we find that the Regional Office's failure to provide the Petitioner with the Excelsior list does not constitute substantial compli- ance with Excelsior requirements and that therefore the election must be set aside and a second election be directed [Direction of Second Election omitted from pub- lication]