Sprayking, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1976

226 N.L.R.B. 1044 (N.L.R.B. 1976)

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commercial Air Conditioning Co., Inc . d/b/a Spray-
king, Inc. and Sheet Metal Workers' International
Association , Local No. 75, AFL-CIO, Petitioner.
Case 31-RC-3444
November 19, 1976
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered the Petitioner's objec-
tions to an election held on April 20, 1976,' and the
Regional Director's report recommending disposi-
tion of same. The Board has reviewed the record in
light of the exceptions and briefs, and hereby adopts
the Regional Director's findings and recommenda-
tions only to the extent herewith.2
The Regional Director set aside the election based
on the Petitioner's objection that it suffered prejudice
in its campaign because it did not receive from the
Regional Office the required list of names and ad-
dresses of all eligible voters' until I day befoie the
election. The Employer contends, inter alia, that the
Petitioner, as it neglected to inform both the Region-
al Office and the Employer's attorney of its failure to
receive the list, should not profit by its failure to pro-
tect its interest in communicating its position to the
eligible voters.4 For the reasons below, we find merit
in the Employer's position.
On April 5, 1976,5 the parties entered into a Stipu-
lation for Certification Upon Consent Election
agreement, which provided that the election be held
April 20. On April 5, the Employer mailed a copy of
its eligibility list to Region 31 and an identical copy
to the attorney for the Petitioner. The attorney for
Petitioner received his copy on April 7. The Region
received its copy of the list on April 8. That same day
the Region mailed a copy of the list directly to Peti-
tioner. The list did not arrive until April 19, 1 day
prior to the election. In the meantime, about 4 or 5
days preceding the date of the election, Petitioner
contacted its attorney and informed him that it had
not received the list. The attorney immediately sup-
plied Petitioner with a copy of the list he had re-
ceived directly from the Employer. Prior to the elec-
tion, Petitioner did not inform the Region of its
failure to receive the list at the proper time.
The principle underlying the rationale of Excelsior
requires employers to disclose the names and ad-
dresses of eligible voters to the union with an oppor-
tunity to inform the employees of its position so that
they, the employees, will be able to vote intelligently.
In this case, the Regional Director found that the
Union's ability to communicate its position to em-
ployees in a timely manner was inhibited and re-
stricted by the late receipt of the list. The facts re-
quire a contrary conclusion.
There were only approximately 10 employees in
the unit and the Petitioner had the list in its posses-
sion for a period of 4 or 5 days prior to the election.
Considering the small size of the unit and the length
of time it had in which to use the list,6 we find that
Petitioner was afforded sufficient opportunity to
communicate with the employees in the unit prior to
the election.' That this is the case is demonstrated by
the failure of the Petitioner, for whose benefit the list
is provided, to take any action when it realized the
list had not arrived when expected. By the terms of
the April 5 stipulation the Employer agreed to supply
the Region with a list by April 8. Petitioner knew it
could expect to receive the list shortly thereafter. Yet
Petitioner failed to notify anyone that it had not re-
ceived the list until more than a week later, when it
notified its own attorney 4 or 5 days prior to the
election. Its failure to seek the list earlier, even
though it knew its receipt was overdue, indicates that
it did not really need the list prior to the time it actu-
ally received the list from its attorney. Accordingly,
we find that Petitioner was not prejudiced as a result
of not having received a copy of the list from the
Region until just prior to the election.' We shall
therefore overrule the Petitioner's Objection 2.
As the tally of ballots shows the Union has not
received a majority of the valid votes cast in the elec-
tion, and as the challenged ballot is insufficient in
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was three for, and six against , the Peti-
tioner, there was one challenged ballot , an insufficient number to affect the
results
2 In the absence of exceptions thereto, we adopt pro forma the Regional
Director's recommendation to overrule Objections I, 3, and 4
3 Excelsior Underwear Inc, 156 NLRB 1236 (1966)
In view of our determination here , we find it unnecessary to consider
several other contentions made by the Employer in support of its excep-
tions
5 All dates are in 1976 unless otherwise indicated
6 That the copy of the list so provided came from a source other than the
Refiion is circumstantial
Coca-Cola Company Foods Division, 202 NLRB 910 (1973), cited by the
Regional Director is distinguishable There, as a result of the Board error,
the list was received only 3 days prior to election and there were approxi-
mately 35 eligible voters In those circumstances it is conceivable that the
Union was not able to use the list to communicate with all unit employees
prior to the election and therefore was prejudiced
8 To hold otherwise would be to engage in a purely mechanical applica-
tion of the Excelsior rule, something which we have indicated will not do
Program Aids Company, Inc, 163 NLRB 145 (1967)
226 NLRB No. 158
SPRAYKING, INC. 1045
number to affect the results of the election, we shall ballots have not been cast for Sheet Metal Workers'
certify the results of the election. International Association, Local No. 75, AFL-CIO,
and that said labor organization is not the exclusive
CERTIFICATION OF RESULTS OF ELECTION representative of all the employees, in the unit herein
involved, within the meaning of Section 9(a) of the
It is hereby certified that a majority of the valid National Labor Relations Act, as amended.