Brunswick Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1973

206 N.L.R.B. 532 (N.L.R.B. 1973)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ben Pearson Plant, Consumer Division , Brunswick
Corporation and Mac Walsh and Doris Woods, Peti-
tioners and Local 336, United Furniture Workers of
America, AFL-CIO, Union . Case 26-RD-237
October 23, 1973
SUPPLEMENTAL DECISION AND ORDER
DIRECTING A SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 6, 1973, the National Labor Relations
Board issued in the above-entitled proceeding a Deci-
sion and a Notice of Hearing on four challenged bal-
lots. In the same decision the Board adopted, in the
absence of exceptions, the Acting Regional Director's
recommendations that the Union's Objections 1, 2,
and 3 be overruled, However, the Board held in abey-
ance any action on the Acting Regional Director's
recommendation that the Union's Objection 4 be sus-
tained.'
On July 10 and 11, 1973, the parties stipulated that
the four voters whose ballots were challenged were
ineligible voters for the purposes of the proceedings
herein. Pursuant to the stipulation the Regional Di-
rector issued on July 12, 1973, ,a notice of withdrawal
of notice of hearing, and submitted the stipulation to
the Board for further action.
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
that issued the previous Decision and Order herein.
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 pur-
poses of the Act to assert jurisdiction herein.
2. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
3. The parties agreed, and we find, that the follow-
ing employees constitute a unit appropriate for collec-
tive bargaining within the meaning of the Act:
All production and maintenance employees,
leadmen, inspectors, experimental mechanics,
1 The Acting Regional Director in sustaining the Union's Objection 4
recommended that on the basis thereof the election held on December 18,
1972, be set aside and -a second -election be ordered. The Employer filed
exceptions to the recommendation of the Acting Regional Director.
2 The Board accepts the stipulation of the parties as to the four challenged
employees. Accordingly, we hereby dismiss those challenges.
graders, deliverymen, plant clericals, including
cost clerks, production clerks and standards
clerks at the Employer's Pine Bluff, Arkansas,
facility; excluding office clerical employees,
,guards and supervisors as defined in the Act.
The Board has reviewed the entire record in this
case, including the Acting Regional Director's Report
on Challenges and Objections, the Employer's excep-
tions and brief, and hereby adopts the Regional
Director's recommendation only to the extent consis-
tent herewith.
The only issue before us is Union's Objection 4.
The Union's Objection 4 asserts that it did not time-
ly receive its copy of the Excelsior 3 list as required by
the Board rule, thus inhibiting and restricting the
Union in carrying its message to the employees in a
timely manner. We agree.
The record in the instant proceeding discloses that
the Board's Regional Office received, on December 7,
1972, from the Employer an envelope containing a
copy of the current contract between it and the
Union, various other formal documents, and a cover
letter indicating that the Excelsior lists were also en-
closed. However, the Regional Office has been unable
to determine whether the Excelsior lists were inadver-
tently omitted by the Employer or were received and
misplaced by the Regional Office. In any event the
Regional Office did not mail any Excelsior lists to the
parties as a result of the Employer's letter.4
On December 11, 1972, when the Union inquired of
the Regional Office as to the availability of the lists,
it was ascertained that the lists, if ever received, had
not been mailed to the parties. On the same day the
Regional Office made arrangements with the Employ-
er for both the Union and Petitioner to pick up copies
of the lists directly from the Employer. While the
Union received its copy of the lists on December 12,
it was ascertained that counsel for the Petitioner, not
having received the lists from the Regional Office on
December `8, secured a copy of the lists directly from
the Employer. Accordingly, the Petitioner had use of
the Excelsior lists for 10 days prior to the election,
while the Union had use of the lists for only 6 days
prior to the election.
The record discloses that the Excelsior lists pre-
pared from the Employer's payroll period ending No-
vember 19, 1973, contained the names and addresses
of approximately 194 employees, while the Union
through its bargaining relationship with the Employer
had access, prior to December 7, 1972, to the names
and addresses of 107 unit employees, and this left a
3 Excelsior Underwear Inc., 156 NLRB 1236.
4All parties agreed on December 4, 1972, to an election to be held on
December 18, 1972, and further agreed that the Employer would furnish the
Excelsior list to the Regional Office by December 7.
206 NLRB No. 64
BEN PEARSON PLANT, BRUNSWICK CORP. 533
balance of 87 employees for whom the Union had no
required data. Further, a substantial number of the
voters were female employees and may have been
listed in telephone directories under their husbands'
names; some 27 employees on the voting lists have
addresses in towns other than the election city; and,
24 employees have rural route addresses.
The fact that the Union had access to the Excelsior
lists only 6 days prior to the election, and 4 days after
the Petitioner had access to it, coupled with the Re-
gional Office's confusion as to the actual receipt of the
Excelsior lists, persuades us that the delay in receipt
of the lists by the Union could have materially affect-
ed the results of the election. In reaching this conclu-
sion, we have not overlooked the closeness of the vote.
The Board has consistently held employers to strict
compliance with the requirements of the Excelsior
rule in the absence of extenuating circumstances of
substance. While in this case, the blame for the failure
of the Union to receive the lists on time cannot with
any certainty be allocated- to anyone, we can only
conclude, in the circumstances, that the Union was
prejudiced thereby.' We therefore find merit in the
Union's Objection 4, and we shall set the election
aside.
ORDER
It is hereby ordered that the election conducted on
December 18, 1972, be, and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
'Rockwell Manufacturing Company, 201 NLRB No. 57. The Coca-Cola Co,
Foods Division, Case 12-RC-4215 (unpublished).