Telonic Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1968

173 N.L.R.B. 588 (N.L.R.B. 1968)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telonic Instruments , a Division of Telonic Indus-
tries , Inc. and International Union of Electrical,
Radio And Machine Workers , AFL-CIO, Petition-
er. Case 25-RC-3686
November 5, 1968
DECISION AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS FANNING, BROWN, AND JENIGNS
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on March 5, 1968, under the direction and
supervision of the Regional Director for Region 25,
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 111 eligible voters, 106 ballots were
cast, of which 51 were for, 52 against the Petitioner,
and 3 ballots were challenged. The challenged ballots
were sufficient in number to affect the results of the
election. On March 8, 1968, the Petitioner filed
timely objections to conduct affecting the results of
the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on June 28, 1968,
issued and duly served upon the parties his Report on
Challenged Ballots and Objections to Election, recom-
mending that the Petitioner's objections Nos. 2
through 6 be overruled, that objection No. 1 be
sustained, and therefore that the election be set aside.
The Regional Director further recommended that the
3 challenges be sustained. Thereafter, on July 10,
1968, the Employer filed timely exceptions to the
Regional Director's Report insofar as it recommended
that the election be set aside on the basis of objection
No. 1, which alleged that the Employer did not
comply with the Excelsior rule.'
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 concern-
mg the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. In accordance with the stipulation of the
parties, we find that the following employees of the
Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees includ-
mg technicians, working group leaders, plant cler-
ical employees, and draftsmen at the Employer's
Beech Grove, Indiana, establishment; but excluding
all office clerical employees, professional employ-
ees, engineers, guards and supervisors as defined in
the Act.
5. The Board has considered the Regional Direc-
tor's Report, the Employer's exceptions, and the
entire record in the case, and finds as follows:2
Objection No. 1 is based upon the Employer's
omission of four names from the list submitted
pursuant to the Board's Excelsior requirement. The
Regional Director, taking account of the one vote
margin by which the Union failed to receive a
majority, concluded that, in the circumstances, the
Excelsior rule should be applied strictly. He therefore
recommended that the election be set aside because
of the Employer's failure to submit a complete list.
We disagree. As indicated, the unit consisted of
approximately 111 eligibles. On February 13, 1968,
the Employer made a timely submission of the
eligibility list containing the names and addresses of
all but four eligibles. That list was prepared from the
Employer's Christmas list. The four employees were
also omitted from the Christmas list because their
personnel files were either being processed or unavail-
able at the time that it was being compiled. On March
2, the Employer's Personnel Director instructed a
clerical employee to check the list that had been
submitted against personnel records and monthly
work sheets in order to develop an accurate list for
use in both the election and as a basis for the
Employer's mailing of a campaign letter that day. The
clerical, in updating the list, added the names of
Bennett and Harnishfeger, who had been previously
omitted, and included them in the Company's mailing
made that day. On the morning of March 5, the day
of the election, the Employer's Personnel Director
discovered, for the first time, that these names had
been omitted from the list submitted. At the preelec-
tion conference, the Personnel Director informed the
Union and Board agent of these omissions. The Union
then indicated that two other names (Reeves and
Curson) had also been left off the list. However, the
1 Excelsior Underwear Inc., 156 NLRB 1236 Director 's recommendation sustaining the 3 challenged ballots and
2 No exception having been taken thereto , we adopt the Regional overruling Petitioner 's objections 2, 3, 4, 5, and 6..
173 NLRB No. 87
TELONIC INSTRUMENTS 589
Union made no request that the election be deferred
and all four employees voted without challenge.
In the period following adoption of the Excelsior
rule the Board has had occasion to consider a variety
of fact situations in which employers have made some
attempt, but failed to comply strictly with the
requirements of that rule. In these cases, the Board, in
deciding whether the noncompliance was sufficient to
warrant a second election, has repeatedly stated that
there is "nothing in Excelsior which would require
the rule stated therein to be mechanically applied."3
Although the submission of an inaccurate or incom-
plete list may in other circumstances furnish grounds
for setting aside an election we are not satisfied that
such a result is warranted here. In this case, not only
were the omissions limited to 4 of about 11 I eligibles,
but upon discovery of the omissions by its supervis-
ory personnel, the Employer took the first opportun-
ity available to inform the Region and Union that the
list was not complete. In view of these factors,
together with the absence of any suggestion in the
evidence that the errors were attributable to gross
negligence or an unwillingness on the Employer's part
to afford the Union full access to all eligible employ-
ees, we find that the Employer substantially complied
with the requirements of the Excelsior rule. Accord-
ingly, contrary to the Regional Director, we shall
overrule Petitioner's objection No. 1.
As the tally of ballots shows that the Union has not
received a majority of the valid votes cast in the
election, we shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes
have not been cast for International Union of
Electrical, Radio and Machine Workers, AFL-CIO in
the election held herein, and that said Union does not
constitute the exclusive representative of the em-
ployees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
3 Program Aids Company, Inc., 163 NLRB No. 54, United States
Consumers , Inc, 164 NLRB No. 158 ; Taylor Publishing Company, 167
NLRB No 50.