Ace Letter Service Co.

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 581 (N.L.R.B. 1970)

ACE LETTER SERVICE CO. 581
Ace Letter Service Co. and International Printing
Pressmen and Assistants ' Union of North America,
AFL-CIO, Petitioner . Case 12-RC-3649
December 30, 1970
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, approved by the Acting Regional
Director for Region 12 on August 12, 1970, an
election by secret ballot was conducted on August 28,
1970, under the direction and supervision of the
Acting Regional Director, among the 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 22 eligible voters, 22
cast ballots, of which 10 were for, and 12 against,
Petitioner.
Thereafter, Petitioner filed timely objections to
conduct affecting the results of the election. The
Regional Director conducted an investigation and on
October 2, 1970, issued and served on the parties his
Report on Objections and Recommendations to the
Board. In his Report the Regional Director recom-
mended that the objections be overruled and that
certification of results of election issue. Thereafter,
Petitioner filed exceptions to the Regional Director's
Report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The following employees of the Employer, as
stipulated by the parties, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All pressmen, apprentice pressmen, assistant
pressmen, feeder operators, cameramen, cutters,
1 National Labor Relations Board Statements of Procedure , Series 8, as
amended , Sec. 101 . 19(2) and (4); and Rules and Regulations Sec.
I02.69(a)-(c).
strippers, plate makers and veritypists employed
by the Employer at its Miami, Florida, plant,
excluding all office clerical employees and supervi-
sors as defined in the Act.
5. Petitioner filed two separate objections which
the Regional Director found lacked merit, and he
recommended that the objections be overruled. As to
Objection 1, we find that Petitioner's exceptions do
not raise substantial or material issues of fact or law
which would warrant reversing the Regional Direc-
tor's findings, conclusions, and recommendations,
and Objection 1 is accordingly overruled.
In Objection 2 Petitioner alleged that the Employer
denied five employees the right to vote by denying
them access to the plant premises where the polls were
located. The reason given to Petitioner was that the
men had been terminated for lack of work. Petitioner
contended in its objection that the men were laid off
and should have been permitted to vote challenged
ballots.
The Regional Director found that the disputed
employees' names were not on the eligibility list
furnished by the Employer, that the Employer did not
allow the employees on its premises, but that
Petitioner had presented no evidence to show that the
men were on layoff status as it contended, and
therefore the objection lacked merit.
We do not agree.
The Board's challenge procedure generally guaran-
tees the right to every individual who asserts other
than a totally frivolous claim to employee status to
appear at the polls and cast a ballot, even though his
name may not appear on the eligibility list. The
Employer erroneously assumed that its exclusion of
these persons was proper because it believed that they
were not entitled to vote. The issue of whether an
employee is on layoff or has in fact been terminated is
clearly one of those kinds of issues which is to be
determined by the Board upon the employer's
challenge to their ballots.' The Employer, by usurping
the Board's authority to make that determination,
interfered with our orderly election processes.2 While
we are reluctant to set aside an election in the absence
of evidence demonstrating that the effect of such
interference had a provable prejudicial effect, we
nevertheless consider that the interference here was
sufficiently irregular as to require that we sustain this
objection of Petitioner, set aside the election results,
and direct a new election.
ORDER
It is hereby ordered that the election previously
2 Neuhoff Brothers Packers, Inc. v. N. L.R.B., 362 F .2d 611, 613-614
(C.A. 5), enfg. 154 NLRB 438 . Rehearing denied November 16, 1966,
rehearing denied en banc October 17, 1967, cert. denied 386 U.S. 956.
187 NLRB No. 79
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted herein on August 28 , 1970, be, and it
hereby is, set aside.
3 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
[Direction of Second Election3 omitted from
publication.]
by the Employer with the Regional Director for Region 12 within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director . The Regional Director shall make the list available to all parties
to the election . No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.