Tractor Company d/b/a CCS Trucking

National Labor Relations Board - Board Decisions

Feb 14, 2013

359 N.L.R.B. 603 (N.L.R.B. 2013)

CCS TRUCKING 603
359 NLRB No. 67
Tractor Company d/b/a CCS Trucking and Team-
sters Local 727, International Brotherhood of
Teamsters, Petitioner and Local 707, Truck
Drivers, Chauffeurs, Warehousemen and Help-
ers Union, Petitioner. Cases 13–RC–022018 and
13–RC–067437
February 14, 2013
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The National Labor Relations Board has considered
objections to an election held on November 18, 2011,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to a
Consolidated Stipulated Election Agreement. The tally
of ballots shows 4 for Petitioner Local 727, 8 for Peti-
tioner Local 707, and 0 against representation.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations
1
only to the extent con-
sistent with this Supplemental Decision, and finds that a
certification of representative should be issued.
Background
Following the election, the tally of ballots was 3 votes
for Petitioner Local 727, 3 votes for Petitioner Local 707,
and 0 votes against representation, with 6 challenged
ballots. Thereafter, Petitioner Local 727 filed election
objections asserting, in relevant part, that the Employer
engaged in conduct affecting the results of the election
by omitting the names of two employees, Brian Powell
and Ken Kendal, from the Excelsior list. Following a
hearing, the hearing officer recommended sustaining the
relevant objections and setting aside the election results.
In the alternative, the hearing officer recommended
opening and counting the challenged ballots so that the
Excelsior objections could be considered in light of the
revised tally.
The Employer and Local 707 filed timely exceptions
to the hearing officer’s report. On June 18, 2012, the

1 In our earlier Decision and Direction in this case, which issued on
June 18, 2012, we adopted pro forma, in the absence of exceptions, the
hearing officer’s recommendations to overrule Petitioner Local 727’s
third and fourth objections and to overrule the challenges to the ballots
of Brian Powell, James Livsey Sr., James Livsey Jr., Kyle Harris, Ser-
gio Barajas, and Mike Rizzi.
Board issued an Order remanding the case to the Region-
al Director, with instructions to open and count the chal-
lenged ballots and, thereafter, to determine whether fur-
ther proceedings were warranted in light of the revised
tally and the Excelsior objections.
On August 18, 2012, the Regional Director opened and
counted the challenged ballots and issued a revised tally
of ballots: 4 votes for Local 727, 8 votes for Local 707,
and 0 votes against representation. Notwithstanding the
revised tally, the hearing officer issued a Supplemental
Report on Objections and Challenged Ballots on Sep-
tember 27, 2012, recommending the direction of a se-
cond election. In doing so, the hearing officer concluded
that, although the Employer’s omissions of two employ-
ees from the Excelsior list did not have a determinative
effect on the election results, the omissions sufficiently
prejudiced the election so that a second election was re-
quired.
We disagree with the hearing officer’s conclusion.
Under Woodman’s Food Markets, 332 NLRB 503
(2000), the Board considers several factors in determin-
ing whether an employer has substantially complied with
the Excelsior requirements, including the percentage of
voters omitted from the Excelsior list, the employer’s
reasons for omitting the voters’ names, and whether the
number of voters omitted constitute a determinative
number of votes. In the present case, we find that the
relevant Woodman’s factors support a finding that the
Employer substantially complied with the Excelsior re-
quirements: the percentage of voters omitted from the list
is relatively small (15.4 percent), there is no showing of
bad faith on the part of the Employer, and, perhaps most
importantly, the number of voters omitted from the list
does not constitute a determinative number. In reaching
a contrary conclusion, the hearing officer relied in part
on the Board’s decision in Automatic Fire Systems, 357
NLRB 2340 (2012), but we find that case distinguishable
in two significant respects. First, the present case in-
volves a two-union election in which all employees indi-
cated their preference for representation and in which
both unions were equally affected by the Excelsior list
omissions. Second, there is no showing here that the
Employer intentionally omitted an entire segment of its
work force.
Accordingly, we reverse the hearing officer’s decision,
and we shall certify the election results.
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

DIRECTION
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 707, Truck Drivers, Chauffeurs,
Warehousemen and Helpers Union, and that it is the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time truck drivers, ware-
housemen, shippers and receivers employed by the
Employer at its facility currently located at 3636 S.
California Ave, Chicago, Illinois and 5448 W. 47th
Forest View, Illinois but excluding all other employees,
office clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.