Tractor Company d/b/a CCS Trucking

CCS TRUCKING 603 359 NLRB No. 67 Tractor Company d/b/a CCS Trucking and Team- sters Local 727, International Brotherhood of Teamsters, Petitioner and Local 707, Truck Drivers, Chauffeurs, Warehousemen and Help- ers Union, Petitioner. Cases 13–RC–022018 and 13–RC–067437 February 14, 2013 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK The National Labor Relations Board has considered objections to an election held on November 18, 2011, and the hearing officer’s report recommending disposi- tion of them. The election was conducted pursuant to a Consolidated Stipulated Election Agreement. The tally of ballots shows 4 for Petitioner Local 727, 8 for Peti- tioner Local 707, and 0 against representation. The Board has reviewed the record in light of the ex- ceptions and briefs, has adopted the hearing officer’s findings and recommendations1 only to the extent con- sistent with this Supplemental Decision, and finds that a certification of representative should be issued. Background Following the election, the tally of ballots was 3 votes for Petitioner Local 727, 3 votes for Petitioner Local 707, and 0 votes against representation, with 6 challenged ballots. Thereafter, Petitioner Local 727 filed election objections asserting, in relevant part, that the Employer engaged in conduct affecting the results of the election by omitting the names of two employees, Brian Powell and Ken Kendal, from the Excelsior list. Following a hearing, the hearing officer recommended sustaining the relevant objections and setting aside the election results. In the alternative, the hearing officer recommended opening and counting the challenged ballots so that the Excelsior objections could be considered in light of the revised tally. The Employer and Local 707 filed timely exceptions to the hearing officer’s report. On June 18, 2012, the 1 In our earlier Decision and Direction in this case, which issued on June 18, 2012, we adopted pro forma, in the absence of exceptions, the hearing officer’s recommendations to overrule Petitioner Local 727’s third and fourth objections and to overrule the challenges to the ballots of Brian Powell, James Livsey Sr., James Livsey Jr., Kyle Harris, Ser- gio Barajas, and Mike Rizzi. Board issued an Order remanding the case to the Region- al Director, with instructions to open and count the chal- lenged ballots and, thereafter, to determine whether fur- ther proceedings were warranted in light of the revised tally and the Excelsior objections. On August 18, 2012, the Regional Director opened and counted the challenged ballots and issued a revised tally of ballots: 4 votes for Local 727, 8 votes for Local 707, and 0 votes against representation. Notwithstanding the revised tally, the hearing officer issued a Supplemental Report on Objections and Challenged Ballots on Sep- tember 27, 2012, recommending the direction of a se- cond election. In doing so, the hearing officer concluded that, although the Employer’s omissions of two employ- ees from the Excelsior list did not have a determinative effect on the election results, the omissions sufficiently prejudiced the election so that a second election was re- quired. We disagree with the hearing officer’s conclusion. Under Woodman’s Food Markets, 332 NLRB 503 (2000), the Board considers several factors in determin- ing whether an employer has substantially complied with the Excelsior requirements, including the percentage of voters omitted from the Excelsior list, the employer’s reasons for omitting the voters’ names, and whether the number of voters omitted constitute a determinative number of votes. In the present case, we find that the relevant Woodman’s factors support a finding that the Employer substantially complied with the Excelsior re- quirements: the percentage of voters omitted from the list is relatively small (15.4 percent), there is no showing of bad faith on the part of the Employer, and, perhaps most importantly, the number of voters omitted from the list does not constitute a determinative number. In reaching a contrary conclusion, the hearing officer relied in part on the Board’s decision in Automatic Fire Systems, 357 NLRB 2340 (2012), but we find that case distinguishable in two significant respects. First, the present case in- volves a two-union election in which all employees indi- cated their preference for representation and in which both unions were equally affected by the Excelsior list omissions. Second, there is no showing here that the Employer intentionally omitted an entire segment of its work force. Accordingly, we reverse the hearing officer’s decision, and we shall certify the election results. 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DIRECTION IT IS CERTIFIED that a majority of the valid ballots have been cast for Local 707, Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, and that it is the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time truck drivers, ware- housemen, shippers and receivers employed by the Employer at its facility currently located at 3636 S. California Ave, Chicago, Illinois and 5448 W. 47th Forest View, Illinois but excluding all other employees, office clerical employees and guards, professional em- ployees and supervisors as defined in the Act.