American Biomed Ambulette

National Labor Relations Board - Board Decisions

Jun 15, 1998

325 N.L.R.B. 911 (N.L.R.B. 1998)

911
325 NLRB No. 171
AMERICAN BIOMED AMBULETTE, INC.
1 The pertinent portion of the hearing officer’s report is attached
as an appendix.
2 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
3 In adopting the hearing officer’s recommendation to sustain Ob-
jection 1, we find it unnecessary to pass on the hearing officer’s
finding that the Employer acted with bad faith or gross negligence
in failing to provide a complete and accurate list of eligible voters
to the Petitioner.
Unlike his colleagues, Member Brame adopts the hearing officer’s
recommendation sustaining Objection 2, thus finding it unnecessary
to pass upon Objection 1.
1 The hearing officer stated that the Employer offered no credible
evidence to establish that it had provided the best evidence in its
records. I find that such evidence, if offered, is irrelevant to the reso-
lution of an Excelsior objection.
2 Thrifty Auto Parts, Inc., 295 NLRB 1118 (1989). See also Gam-
ble Robinson Co., 180 NLRB 532 (1970) (employer’s claim of inad-
vertence cannot excuse its failure to afford the union an opportunity
prior to the election of informing a substantial percentage of the
electorate of the union’s position and the issues raised by it).
3 Excelsior Underwear, 156 NLRB 1236 (1966).
American Biomed Ambulette, Inc. and Electrical,
Production & Industrial Workers Union, Local
118, AFL–CIO, Petitioner. Case 29–RC–8870
June 15, 1998
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 28, 1997, and the hearing officer’s report
recommending disposition of them.1 The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 6 for and 8 against
the Petitioner, with 2 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the hearing officer’s
findings2 and recommendations,3 and finds that the
election must be set aside and a new election held.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN GOULD, further concurring.
I agree with my colleagues’ decision to adopt the
hearing officer’s recommendation to overrule the Peti-
tioner’s Objections 3(a) and (c), to sustain the Petition-
er’s Objections 1 and 2, and to set aside the August
28, 1997 election. I write separately with regard to Ob-
jection 1 which alleges that the Excelsior list was both
incomplete and inaccurate. While I agree with my col-
leagues and the hearing officer that the Employer has
not substantially complied with the Board’s Excelsior
requirements, I further find the hearing officer’s con-
clusion that the Employer ‘‘acted with bad faith, or at
a minimum, with gross negligence’’ is irrelevant to the
resolution of an objection to an Excelsior list.
The Board adopted its Excelsior rule to achieve im-
portant statutory goals by ensuring that all employees
are fully informed about the arguments for and against
representation and can freely and fully exercise their
Section 7 rights. Excelsior Underwear, 156 NLRB
1236, 1240 (1966); North Macon Health Care Facility,
315 NLRB 359, 360–361 (1994); Mod Interiors, Inc.,
324 NLRB 164 (1997). Thus, it is important that the
information in the Excelsior list be complete and accu-
rate so that the union may have access to all eligible
voters. As found by the hearing officer, 9 of the 26 ad-
dresses on the Excelsior list received by the Petitioner
were incorrect.1 The Employer also failed to provide
any zip codes. In this case, where 56 percent of the
addresses were inaccurate, it is clear that the Employer
has not substantially complied with the Excelsior re-
quirements.
Unlike the hearing officer, however, I find it unnec-
essary to determine whether the Employer acted in
good faith or with gross negligence in preparing the
Excelsior list. As noted above, the Board adopted its
Excelsior rule to achieve a fully informed electorate,
not to test employer good faith. North Macon, 315
NLRB at 360. Since the Board has long recognized
that the Excelsior rule is essentially prophylactic, the
question of bad faith or inadvertence does not factor
into the calculation of whether an employer has sub-
stantially complied with the rule.2
APPENDIX
OBJECTION NO. 1
In this objection, the Petitioner contends essentially that
the Employer failed to provide a proper Excelsior3 voter eli-
gibility list containing accurate and complete addresses of el-
igible voters.
In support of this objection, two witnesses, Randolph Lang
and Raule Velasquez, testified on behalf of the Petitioner.
The Employer presented its president, Carl Reade, as its wit-
ness.
Certain facts, elicited through the testimony of Randolph
Lang, the Petitioner’s president, are not in dispute. The un-
disputed testimony is set forth in this paragraph. It is undis-
puted that the Excelsior list was received by the Petitioner
on August 5, 1997, and this list did not contain the zip codes
of the 16 employees named thereon. It is also undisputed that
on August 5, the Petitioner reported the omission to the
Board agent handling the case who agreed to call the Em-
ployer to request the missing zip codes. Further, it is undis-
puted that the Employer received a letter dated August 7,
1997, from the Board agent, confirming an August 6 con-
versation between the Board agent and the Employer’s attor-
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912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 References to the Board’s and Petitioner’s exhibits will be cited
as Board Exh.ll and Petitioner Exh.ll, respectively. References
to the transcript will be cited as Tr.ll.
5 The Petitioner looked in a zip code book for this information.
(Tr. 26.)
6 Accordingly, I credit the undisputed testimony elicited through
Lang.
7 There are two topics in Lang’s testimony that I specifically do
not rely on. I do not rely on Lang’s testimony, elicited during cross-
examination, that he called the Board agent handling the case and
advised her regarding the inaccurate addresses on the Excelsior list
for the following reasons. First, Lang states that this conversation
with the Board agent was on August 5, which was the day that he
received the Excelsior list. Taking into consideration that the mail
was addressed in accordance with the information on the list, which
the Union received on August 5, logically, the Union could not have
received the undeliverable mail back from the United States Postal
Service yet. Additionally, when Lang presented his narrative, he
mentioned only that he advised the Board agent of the missing zip
code information, not inaccurate addresses on August 5. Finally,
Lang also testified that he did not find out about the returned enve-
lopes right away. (Tr. 28–29.) Nor do I rely on the testimony con-
cerning Lang meeting with employees before the election and the
number of employees that Lang met with, as it is irrelevant. See
Thrity Auto Parts, Inc., 295 NLRB 1118 (1989) (where the Board
held that a union’s ability to communicate with employees by means
other than the eligibility list does not influence the determination of
whether the Employer has substantially complied with its Excelsior
duty.) Notwithstanding this, I generally believe Lang’s testimony and
find that any discrepancies with regard to advising the Board of ad-
dress inaccuracies on the list or the number of employees that he
met with to be immaterial facts before me.
8 This has been Velasquez’ address for about the last 3 years.
9 The Employer admits that it directed Irizarry to compile this in-
formation.
10 I note that Velasquez testified that Irizarry is his manager and
supervisor (which is in dispute) as well as a dispatcher. I find it is
unnecessary to determine whether Irizarry is a supervisor within the
meaning of the Act, as these facts concerning the compilation of the
updated information and the reason therefor are not in dispute.
11 Velasquez could not recall whether there were zip codes on the
list, other than his own.
12 Velasquez admits that he does not know whether the Employer
maintains these records.
ney, regarding the Employer’s failure to include zip codes on
the Excelsior list. (Tr. 22.)4 The letter (Board Exh. 2) essen-
tially states that on August 6, the Board agent requested the
Employer’s attorney to provide the zip codes; that the Em-
ployer agreed; but that the zip code information had not been
received. The letter again requested the Employer to provide
the missing zip codes to cure any possible objections by the
Petitioner. Finally, it is undisputed that the Excelsior list con-
tained inaccurate addresses for nine employees, the majority
of the bargaining unit employees, which resulted in 32 letters
from six mailings being returned to the Petitioner. See Peti-
tioner’s Exhibit 2(a)- 2(ff). The 32 letters were returned to
the Petitioner by the United States Postal Service, despite
that Petitioner addressed the envelopes according to the in-
formation provided by the Employer on the Excelsior list and
zip codes that the Petitioner added as a result of its own in-
vestigation.5 These envelopes, addressed to nine different
employees, were returned for reasons including: ‘‘attempted-
not known’’; ‘‘insufficient address,’’ ‘‘moved- not
forwardable’’; ‘‘no apartment number, insufficient address’’;
and ‘‘moved-left no address.’’ Upon examination of Petition-
er’s Exhibit 2(a)-2(ff), none of the envelopes were returned
for the specific reason of an incorrect zip code.
Lang testified that the Petitioner never received a voter eli-
gibility list containing the employees’ zip codes. Lang testi-
fied that he met with about half of the employees and he did
not ask them for their addresses or zip codes. Additionally,
Lang claims that when he became aware of the undeliverable
letters/inaccurate addresses, he complained to the Board
agent handling the case.
Turning to credibility, after observing the demeanor and
listening carefully to the testimony of Lang, I generally cred-
it Lang’s version of events, and his testimony that he did not
receive the zip code information from either the Board or the
Employer.6 Lang’s direct testimony, in the form of a nar-
rative, was logical and trustworthy. He consistently answered
questions asked of him in a straightforward and honest man-
ner.7
Raule Velasquez
The facts set forth in this paragraph, elicited through the
testimony of Raule Velasquez, are undisputed. The address
provided on the Excelsior list for Raule Velasquez was 1482
Herkimer Street; this address was not Velasquez’ address at
the time the Excelsior list was provided by the Employer.
The 1482 Herkimer Street address, was the address that
Velasquez provided to the Employer when he first started
working for the Employer, about 6 years ago. Velasquez
lived at several addresses since the Herkimer Street address.
Velasquez’ current address is 205 Jamaica Avenue.8 (Tr. 90.)
Additionally, Velasquez provided a copy of his renewed
driver’s license to the Employer, which contained his current
address, when it was issued, in 1995. Finally, the Employer
does not dispute that in August, about 2 or 3 weeks before
the election, dispatcher, Benjamin Irizarry, asked employees
to sign a yellow legal pad with their new addresses.9 (Tr. 94,
96.) Irizarry told Velasquez that this new list was intended
to be an updated list to the Excelsior list.10 When Velasquez
saw the list, there were already about five names with ad-
dresses on the list.11
Velasquez’ initial testimony regarding whether he notified
his Employer about his change of address was confused and
uncertain. First Velasquez testified that most likely he did
not notify the Employer that he moved from 1482 Herkimer
Street (Tr. 81); then he stated that he probably notified the
Employer that he moved from 1482 Herkimer Street (Tr. 88);
then Velasquez stated that he did not recall whether he noti-
fied the Employer about his new addresses (Tr. 90); then
Velasquez stated that most likely he did notify the Employer
of a change of address (Tr. 92). Afler extensive questioning,
on cross-examination, Velasquez testified that he did not
know or did not recall whether he advised his Employer of
any change of address in the past 5 years; maybe he did and
maybe he did not. (Tr. 93.) As noted above, after a further
question, about whether he had notified the Employer within
the last 12 months of his address, Velasquez recalled with
detail that in August, about 2 or 3 weeks before the election,
he provided his current address to the Employer.
Velasquez contended that the Employer should have his
current address in its records because he filled out forms
containing that information for the Taxi and Limousine Com-
mission and had physical exams annually.12 Velasquez also
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913AMERICAN BIOMED AMBULETTE, INC.
13 The Employer’s witness, Carl Reade, refers to Velasquez’
testmony on this matter and does not dispute it.
14 I also credit any other undisputed testimony elicited through
Velasquez which is not noted specifically herein.
15 Reade is the Employer’s president.
16 Reade asserts that this action was prompted by a request from
an unknown party. Reade alludes to Velasquez’ testimony about
Irizarry’s compilation of the updated information without denying it.
(Tr. 187.)
17 I note here that later in his testimony Reade inconsistently testi-
fies in a confused manner concerning whether updated information
was provided to the Board. Reade testified that Irizarry told him that
the zip code information was provided to the Board. (Tr. 183–184.)
This is hearsay evidence and I do not rely on it. Inzarry was not
presented as a witness. Nor was any such documentary evidence pro-
duced as an exhibit to this proceeding. When asked by the hearing
officer for a copy of this updated list, the Employer’s attorney stated
that he did not know if the Employer still had ‘‘such a list’’ and
did not know if the list still existed. During a recess, the Employer
was unsuccessful in having the list faxed to the hearing. Reade did
not claim that he saw the updated list.
18 Reade contends that employees picked up their paychecks and
W2 forms; the Employer did not mail these items to employees.
(This testimony is undisputed.)
19 A copy of Velasquez’ W2 was not offered into evidence.
20 Tr. 163–164.
testified that everyone at the office knew that he lived diago-
nally across the street from the Employer’s facility.
Turning to credibility, after observing the demeanor and
listening carefully to the testimony of Velasquez, I generally
credit his version of events related above. Velasquez gen-
erally answered questions in a straightforward and honest
manner. Much of Velasquez’ testimony is not disputed by
the Employer’s sole witness. Velasquez’ testimony regarding
the list on which Irizarry asked employees to place their new
addresses on was clear and detailed. Accordingly, although
Velasquez’ testimony regarding whether he notified the Em-
ployer of any of his address changes before August 1997, is
uncertain and cannot be relied upon, I credit his testimony
regarding Irizarry’s solicitation of the employees’ new ad-
dresses in August, which coincides with the testimony of the
Employer’s witness.13 Further, the testimony of the Employ-
er’s witness is somewhat consistent with Velasquez’ testi-
mony on providing the Employer with a copy of his renewed
driver’s license in 1995, (this license contained his present
address), as the Employer’s witness states that it is possible
that Velasquez gave the Employer a copy of it.14
Carl Reade15
It is undisputed that Carl Reade’s secretary, Grace, and
dispatcher, Benjamin Irizarry, prepared the Excelsior list by
looking at the personnel files of the employees. Reade testi-
fied that this was the easiest way to compile the list. (Tr.
159.) Reade was uncertain as to whether he or his wife in-
structed the employees to prepare the Excelsior list. (Tr. 164,
198–199.) Essentially, the Employer’s position appears to be
that the personnel files contained the addresses that the em-
ployees gave at the time they started working for the Em-
ployer and that these were the best addresses that the Em-
ployer had on record. (Tr. 160, 164.) Reade appears to con-
cede that the Excelsior list provided to the Board contained
the addresses of employees when they first started working
for the Employer. (Tr. 158.) Reade did not know if the Em-
ployer had the zip codes of all of its employees that worked
for the Employer, but he testified that at some point the Em-
ployer tried to update the Excelsior list with the necessary
information.16 Reade appeared to believe that his wife in-
structed Irizarry to make an updated list. (Tr. 182.) Reade
testified that Irizarry did not give him the updated list, but
Irizarry told Reade that he sent the updated list. Reade testi-
fied that he did not know where Irizarry sent the list or ex-
actly when Irizarry sent the list, but it was in the summer
before the election. (Tr. 161.)17 The foregoing testimony is
not disputed by the Petitioner, however, the Petitioner con-
tends that it never received the updated list from the Board
or the Employer.
With regard to the accuracy of the addresses provided on
the Excelsior list, Reade testified inconsistently. Initially
Reade did not recall any employee ever advising him of a
new address. Reade also testified that employees did not al-
ways advise him when they moved or changed addresses.
However, Reade also testified that infrequently employees
advised him of their new address. Further, with regard to
documentation containing address information in the Em-
ployer’s files, Reade admits that it is possible that the Em-
ployer had Velasquez’ current address in its records. (Tr.
182.) Reade concedes that he was aware that Velasquez
moved from the address provided on the Excelsior list to an
address on Easton Parkway. (Tr. 208.) Reade testified that
employees did not come to him to update their W2 forms at
the end of the year,18 Reade could not recall the address on
Velasquez’ most recent W2 form.19 Reade testified that em-
ployees did not routinely provide copies of their renewed
driver’s license to the Employer; however he also testified
that on occasion, employees have provided to the Employer
a copy of their driver’s license when it is renewed; and that
it is possible that employee Velasquez provided the Em-
ployer a copy of his renewed driver’s license (which con-
tained his new address). Reade states that Velasquez did not
give the license to him directly; and if Velasquez provided
a copy of his renewed driver’s license, it would be in his
file. Reade testified that he could not answer a question
(asked by his attorney) on whether the Employer provided
any addresses that he knew were inaccurate because he did
not know. Thereafter, Reade testified that the Employer pro-
vided an accurate list according to its records; that the Em-
ployer made a good effort to provide everything that was
available in the personnel files. (Tr. 163–164.)
After observing the demeanor and listening carefully to the
testimony of Carl Reade, I find that I was unable to fully
credit him. I credit Reade’s testimony in areas not specifi-
cally mentioned in this paragraph only where it corroborates
other witnesses or where his testimony is undisputed. Reade
testified about many matters that he did not have direct
knowledge of and the Employer failed to present the wit-
nesses that would have direct knowledge in order to corrobo-
rate him or to fill in the gaps. Generally, throughout his testi-
mony, Reade was evasive, he did not respond directly to the
questions asked of him even by his own attorney,20 and his
testimony lacked detail, which may be in part due to his lack
of knowledge. I note that Reade admitted that he was angry
during the hearing. (Tr. 163.) Further, I find that Reade, an
interested party in these proceedings, is at times inconsistent.
For example, first Reade testified that Irizarry told him that
he sent the updated list of address information and that he
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914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Reade admits that he was not directly involved in the creation
of the Excelsior list (Tr. 197); that employees Irizarry and Grace
compiled the list; and he was not even sure if he personally made
the direction to compile the list. (Tr. 164.)
22 Here, the Employer apparently took exception when providing
the address of Julio Galleano, who, according to the Employer, re-
quested that his mail be sent to the Employer’s 2 Arlington Avenue
address about 1 year ago.
23 Where a list of 20 eligible employees prepared by an employer
contained six inaccuracies, and there was no evidence that the inac-
curacies were a result of gross negligence or bad faith, the Board
found that the number of inaccuracies was not substantial enough to
require setting aside the election.
24 In Mod Interiors, supra., an election was set aside where 40 per-
cent of the addresses on the original list were inaccurate, a corrected
list was received by the union only 8 days before the election, and
the election results were close.
25 Reade testified that Irizarry was one of the employees that the
Employer had designated to compile the Excelsior list and the nec-
essary information to update the list.
26 Although the updated list is not in evidence, there is credible
testimony that it contained the current address of employee
Velasquez. Further, the evidence shows that as employees entered
work, lrizarry told employees to provide their name and address to
update the Excelsior list. (Tr. 94, 96.) It is logical to assume that
the other employees when asked to provide their current address in-
formation on a list would do so.
27 See Center Engineering, Inc., 253 NLRB 419 1980) (The Board
found substantial noncompliance where the list, which was not al-
phabetized by surname and only 25 out of 424 addresses included
zip codes, was constructed with bad faith or at least willful and
gross negligence.) See also Women in Crisis Counseling & Assist-
ance, 312 NLRB 589 (1993); Wasatch Medical Management Serv-
ices, 272 NLRB 1180 (1984).
did not know where Irizarry sent the updated list of address
information. Yet later, Reade hesitantly testified, allegedly
based upon what an employee told him, that that Irizarry sent
zip code information to the Board. I do not credit any of
Reade’s testimony on this matter since it is internally incon-
sistent and based upon hearsay evidence. Similarly, Reade’s
testimony about employees advising him of their new ad-
dresses is inconsistent, first he did not recall any employees
ever advising him, then he testified that employees infre-
quently advised him, etc. (see above), and unreliable. I do
credit the admissions made by Reade that it is possible that
the Employer had Velasquez’ current address in its records
and that the Employer may have his current driver’s license
with his current address in its files. In sum, I find that much
of Reade’s testimony cannot be relied upon, including the
Employer’s assertion that it provided the best address infor-
mation in its records in order to compile the Excelsior list.
I note here again that the Employer did not present the em-
ployees that compiled the Excelsior list21 and it appears from
Reade’s testimony that the addresses were taken from the
employees’ personnel files which reflected the employees ad-
dresses when they applied for a job with the Employer, rath-
er than more recent documentation maintained by the Em-
ployer.22 (Tr. 159–160, 181–182.) Further, I find that there
is insufficient evidence to establish that the Employer sent an
updated list with address and/or zip code information to the
Petitioner or the Board.
DISCUSSION
The evidence shows that the Union did six mailings to
employees; and 32 envelopes sent to 9 different employees
were returned by the United States Postal Service for the fol-
lowing reasons: ‘‘attempted-not known’’; ‘‘insufficient ad-
dress’’; ‘‘moved-not forwardable’’; ‘‘no apartment number,
insufficient address’’; and ‘‘moved-left no address.’’ Since
these envelopes were undeliverable, the evidence tends to
show that the addresses provided for these nine employees
were inaccurate. One of these nine employees, Raule
Velasquez, credibly testified that the address provided by the
Employer was not his current address. Although the Em-
ployer asserts that the best known addresses were provided
on the Excelsior list, the inaccurate addresses were not com-
pared against any of the Employer’s records that contain em-
ployee addresses. Further, there is no credible testimony to
establish that the Employer provided the best addresses in its
records. In these circumstances, I find that 9 out of 16 inac-
curate addresses, which is about a 56 percent inaccuracy rate,
standing alone, is sufficient to require setting aside an elec-
tion, as the Employer has not substantially complied with the
Excelsior rule. See Women in Crisis Counseling & Assist-
ance, 312 NLRB 589 (1993)23 Mod Interiors, Inc., 324
NLRB No. 33 (Aug. 7, 1997).24 Moreover, the Petitioner
contends that the Employer acted in bad faith by providing
inaccurate addresses and failing to provide the zip codes. In
considering whether the Employer acted with bad faith or
gross negligence, I note again the substantial inaccuracy rate,
a majority of the addresses provided by the Employer on the
Excelsior list were inaccurate, and the failure to provide zip
codes for all of the employees on the list. Additionally, there
is undisputed testimony that in early August, weeks before
the election, the Board requested that the Employer provide
the zip code information. Further, there is credited testimony
that in about early August, at the direction of
Manager/Dispatcher Irizarry,25 employees provided their ad-
dress information on a yellow legal pad so that the Employer
could update the Excelsior list.26 However, the evidence does
not establish that the Employer provided this information to
the Board or the Union. Based on the foregoing, I find that
the Employer acted with bad faith, or at a minimum, with
gross negligence. Accordingly, I recommend that Petitioner’s
Objection No. 1 be sustained and the election be set aside.27
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