Excelsior Underwear Inc., 1236 (1966)
DECISIONS AND CERTIFICATIONS OF
RESULTS OF ELECTIONS
In the Excelsior case, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director for Region 11 on December 6, 1963, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that of approximately 247 eligible voters, 246 cast ballots, of which 35 were for, and 206 against, the Petitioner, and 5 challenged. The challenges were insufficient in number to affect the results of the election. The Petitioner filed timely objections to conduct affecting the results.
The objections, as summarized by the Regional Director, related to the following:
(1) The Employer's conduct on November 29 in mailing to all employees an 8-page letter allegedly containing material misstatements as to Union dues and initiation fees, as well as provisions of the National Labor Relations Act, threats of plant closings, strikes and violence, and a predetermined position of refusing to bargain in the event the Union were to be selected as bargaining representative.
(2) The Employer's conduct in refusing to supply the Union with a list of employees and their addresses for the purpose of allowing the Union to answer the letter referred to in Objection No. 1.
I Referred to herein as the Excelsior case.
2 Referred to herein as the Kellogg case.
156 NLRB No. 111.
EXCELSIOR UNDERWEAR INC. 1237 (3) The Employer's conduct on or about December 4, in posting a notice at its plants materially misrepresenting Union officials' salaries.
(4) The Employer's conduct on December 5, in giving a speech to employees on Company time containing promises of benefit if the employees did not select the Union as their bargaining representative.
(5) The conduct of certain townspeople of Saluda, South Carolina, in speaking to groups of employees on December 3 and 4, and informing them that other companies interested in relocating in Saluda, South Carolina, would not do so if the Union were selected as bargaining representative. Said townspeople allegedly also stated that Union representatives were Communistic and did not believe in God.
After investigation, the Regional Director, on January 10, 1964, issued and served upon the parties his report and recommendation on objections, in which he recommended that the objections be overruled and that a certification of election results be issued. Petitioner filed timely exceptions to the Regional Director's report.
In the Kellogg case, pursuant to a stipulation for certification upon consent election, a mail election by secret ballot was conducted by the Regional Director for Region 21 between May 15 and 28, 1964, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that of approximately 31 eligible voters, 30 cast votes, of which 9 were for, and 21 against, the Joint Petitioners. The Joint Petitioners filed timely objections to conduct affecting the results of the election.
Objection No. 1 alleged that the Employer, on or about May 5 and 13, 1964, sent to each employee letters containing certain false and coercive material. Objection No. 2 complained of the Employer's denial of the Joint Petitioners' request for a list of employees' names and addresses so that it would have an opportunity to mail campaign material to those employees.
After investigation, the Regional Director, on July 16, 1964, issued and served upon the parties his report and recommendation on objections, in which he recommended that objection No. 1 be sustained, objection No. 2 be overruled, and the election be set aside and a new election directed. The Joint Petitioners filed timely exceptions to the Regional Director's recommendation that objection No. 2 be overruled.' 3 The Employer filed timely exceptions to the Regional Director's recommendation with respect to objection No. 1.
On April 2, 1965, the National Labor Relations Board, having determined that the Employers' denial of the Petitioners' request for the names and addresses of employees eligible to vote in the elections in these two cases presented a question of substantial importance in the administration of the National Labor Relations Act, as amended, ordered that the two cases be consolidated, and that oral argument be heard before the Board on May 20, 1965. The parties were given permission to file further briefs and directed to focus their attention, in briefs and argument, on the following questions :
Can a fair and free election be held when the union involved lacks the names and addresses of employees eligible to vote in that election, and the employer refuses to accede to the union's request therefor? II. If such information should be made available, should the requirement be limited to situations in which the employer has utilized his knowledge of these names and addresses to mail antiunion letters or literature to employees' homes? III. If some requirement that the employer make addresses available is to be imposed, how should this be implemented? For example, should such names and addresses be furnished to a mailing service with instructions to mail, at the union's expense, such materials as the union may furnish? Or,, should the union be entitled to have the names and addresses? The Board also invited certain interested parties to file briefs amicus curiae and to participate in oral argument. This invitation was accepted by : The chamber of commerce of the United States; AmeriCan, Federation of Labor and Congress of Industrial Organizations;
International Union of Electrical, Radio and Machine Workers, AFLCIO ; and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO.
The National Association of Manufacturers, Retail Clerks International Association, AFL-CIO, and Textile Workers Union of America, AFL-CIO, filed briefs but did not participate in the argument.
The International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America participated in the argument but did not file a brief.
Upon the entire record in each of these cases, the Board finds :
The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein.
The Petitioner (Joint Petitioners in Kellogg) is a labor organization claiming to represent certain employees of the Employer.
EXCELSIOR UNDERWEAR INC. 1239
A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act.
4(a) In Excelsior the parties stipulated, and we find, that all production and maintenance employees, plant clerical employees, and janitors at both the Employer's plants in Saluda, South Carolina, excluding all office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
(b) In Kellogg the parties stipulated, and we find, that all drillers, derrickmen, rotary helpers, yardmen, mechanics, and welders, excluding all office clerical employees, professional employees, truckdrivers, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act.
Exceptions Nos. 1, 3, 4, and 5 in Excelsior are without merit and hereby rejected.
Objection No. 2 in each of these cases poses the question whether an employer's refusal to provide a union with the names and addresses of employees eligible to vote in a representation election should be grounds on which to set that election aside. The Board has not in the past set elections aside on this ground. For, while the Board has required that an employer, shortly before an election, make available for inspection by the parties and the Regional Director a list of employees claimed by him to be eligible to vote in that election, there has been no requirement that this list contain addresses in addition to names. The rules governing representation elections are not, however, 'fixed and immutable. They have been changed and refined, generally in the direction of higher standards.4
We are persuaded, for the reasons set out below, that higher standards of disclosure than we have heretofore imposed are necessary, and that prompt disclosure of the information here sought by the Petitioners should be required in all representation elections.
Accordingly, we now establish a requirement that will be applied in all election cases. That is, within 7 days after the Regional Director has approved a consent-election agreement entered into by the parties parties pursuant to Section 102.62 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, or after the Regional Director or the Board has directed an election pursuant to Sections 102.67, 102.69, or 102.85 thereof, the employer must file with the Regional Director an election eligibility list, containing the names 4 Sewell Manufacturing Company, 138 NLRB 66, 70. See also Peerless Plywood Company, 107 NLRB 427, Gummed Products Company, 112 NLRB 1092; Hollywood Ceram4cs Company, Inc., 140 NLRB 221 ; Dal-Tex Optical Company, Inc, 137 NLRB 1782, at 1786-1787.
and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.5
The considerations that impel us to adopt the foregoing rule are these : 'The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly [are] matters which Congress entrusted to the Board alone.' 6 In discharging...
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