Gamble Robinson Co.

National Labor Relations Board - Board Decisions

Jan 2, 1970

180 N.L.R.B. 532 (N.L.R.B. 1970)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Gamble Robinson Co./Omaha Branch d/b/a
Gamble Robinson Co. and General Drivers &
Helpers Union Local No. 554, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Petitioner . Case l7-RC-6012
January 2, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Pursuant to a stipulation for certification upon
consent election approved on May 26, 1969, an
election by secret ballot was conducted on June 11,
1969, under the direction and supervision of the
Acting Regional Director for Region 17 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 13 voters cast
ballots for, and 16 against, the Petitioner, and there
were 4 challenged ballots. The challenged ballots
were sufficient in number to affect the results of the
election. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the
election.
In accordance with the National Labor Relations
Board Rules and Regulations and Statements of
Procedure , Series 8, as amended, the Regional
Director conducted an investigation and on July 31,
1969, issued and duly served on the parties his
report on objections and challenged ballots, in which
he recommended in relevant part that the challenges
to the ballots of Terry Fernside, Daniel Fleming,
James Kelly, and Donald Wicoff be overruled, the
ballots be opened and counted, and a revised tally
be issued; and that if the revised tally fails to show
that the Petitioner has received a majority, the
Petitioner's Objection I be sustained, the election be
set aside, and a second election be directed.
Thereafter, the Employer filed timely exceptions to
the Regional Director's report, and a supporting
brief.
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. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
180 NLRB No. 84
Section 2(6) and (7) of the Act.
4. We find, in accord with the stipulation of the
parties, that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All city and country drivers and warehouse
employees working out of the Employer's facility
in Omaha, Nebraska, but EXCLUDING
salesmen , office-clerical employees, guards,
professionals, watchmen, all other employees, and
supervisors as defined in the Act.
5. The Regional Director found, in his report,
that employee Donald Wicoff had a substantial
interest in the wages and working conditions of the
other employees in the unit and was accordingly
eligible to vote in the election. While the Employer
has excepted to this finding, it has alleged no facts
which would tend to controvert the Regional
Director's basis for his conclusion. We adopt the
Regional Director's conclusion and his
recommendation that Wicoff's challenged ballot be
opened and counted.'
The Regional Director further found that the
Employer omitted the names and addresses of 4
employees from the list it had supplied before the
election, totaling approximately 10 percent of the
electorate, and that as the preelection conference
which began 15 minutes before the opening of the
polls, the Employer announced that three of the
employees had been inadvertently omitted from the
list, due to a misunderstanding within its
organization as to the use of payrolls for preparing
the names and addresses for the list. The Regional
Director concluded that the Employer by its
omission of the four employees from the list was not
in substantial compliance with the Board's Excelsior
requirements. t
While it is an established policy of the Board that
Excelsior is not to be applied mechanically,' it is
also well established that substantial compliance is
required. Assuming arguendo the truth of the
Employer's claim that the omission was largely
inadvertent, the fact remains that 4 out of 36
eligible voters, or more than 11 percent, were
omitted from the list. Consequently, the Petitioner
did not have an opportunity prior to the election to
inform a substantial percentage of the electorate of
its position and the issues raised by it; and the
Employer's claim of inadvertence cannot be
accepted to excuse its failure to afford such an
opportunity to the Union. Thus, it cannot be said
'in the absence of exceptions thereto, we also adopt, pro forma, the
Regional Director's recommendation that the challenges to the ballots of
Fernside , Fleming , and Kelly be overruled and that their ballots be opened
and counted.
Member Jenkins would not adopt the Acting Regional Director's
recommendation with respect to the challenged ballot of Wicoff Member
Jenkins is of the opinion that Wicoff , a college student and part-time
employee , does not have a sufficient community of interest with the other
employees to be included in the unit
'Excelsior Underwear Inc, 156 NLRB 1236
'Program Aids Company Inc. 163 NLRB 145
GAMBLE ROBINSON CO. 533
that the Employer substantially complied with the
Excelsior requirements.
Accordingly, we find that the Employer's
exceptions raise no material or substanital issue of
fact or law which would warrant reversal of the
Regional Director's findings on the objection, which
we hereby adopt.'
As we have sustained the Regional Director's
ruling on the challenged ballots, we shall order the
Regional Director to open and count the ballots and
to prepare a revised tally and a certification of
representative if appropriate. In the event that the
revised tally shows that the Petitioner has not
received a majority of the ballots cast, the election
will be set aside and a second election directed.
ORDER
It is hereby ordered that the Regional Director
for Region 17 shall , pursuant to the Rules and
Regulations of the Board , within 10 days from the
date of this Order, open and count the ballots of
Terry Fernside, Daniel Fleming, James Kelly, and
Donald Wicoff; prepare and cause to be served upon
the parties a revised tally of ballots; and issue a
Certification of Representative or conduct a new
election, as may be appropriate pursuant to this
Decision and according to the results shown by the
revised tally.
IT IS FURTHER ORDERED that insofar as required
by the procedure described in this Order, the
election of June 11, 1969, among the unit of
employees hereinbefore set out, be, and it hereby is,
set aside.
[Direction of Second Elections omitted from
publication.]
in the absence of exceptions thereto, we adopt pro forma the Regional
Director's findings that the Petitioner 's Objections 2 and 3 are without
merit
'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 Company,
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 by the Employer with the Regional Director for Region 17 within 7
days after the 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