Bear Truss, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1998

325 N.L.R.B. 1162 (N.L.R.B. 1998)

1162
325 NLRB No. 216
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Excelsior Underwear, 156 NLRB 1236 (1966).
2 The result in Mod Interiors is distinguishable. There, the incor-
rect addresses were 40 percent of the unit. Here, the error rate was
7 percent. In that regard, we do not rely on the statement in the
hearing officer’s report that ‘‘[e]ven assuming that another 10 ad-
dresses and or [sic] names were illegible, that would make for an
error rate of about 14%.’’
Since Mod Interiors is factually distinguishable, Member Hurtgen
and Member Brame do not pass on the holding of that case. In find-
ing the case distinguishable, Member Hurtgen further finds that there
was no evidence in Mod Interiors, as there is here, that employees
were under a continuing obligation to report changes of addresses.
3 Although a finding of bad faith is not a precondition for a find-
ing that an employer has failed to comply substantially with the Ex-
celsior rule, the Board has held that a finding of bad faith will pre-
clude a finding that an employer was in substantial compliance with
the rule. North Macon Health Care Facility, 315 NLRB 359, 361
(1994).
4 Member Hurtgen further finds that although the Petitioner be-
came aware, before the election, that 10 of the addresses on the list
(about 7 percent of the total) were incorrect, it did not bring the mat-
ter to the attention of the Regional Office or the Employer. Nor did
the Petitioner give the Employer an opportunity to secure and fur-
nish corrected addresses prior to the election.
Bear Truss, Inc. and Interiors Systems Local 1045,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, Petitioner. Case 7–RC–
21097
July 23, 1998
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
The National Labor Relations Board has considered
an objection regarding an election held June 25, 1997,
and the hearing officer’s report (pertinent portions of
which are attached as Appendix) recommending dis-
position of it. The election was conducted pursuant to
a Stipulated Election Agreement. The revised tally of
ballots showed 67 for, and 69 against, the Petitioner.
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the hearing offi-
cer’s findings and recommendations, and finds that a
certification of results of election should be issued.
The hearing officer found no merit in the Petition-
er’s objection which contends that the election must be
set aside because the Excelsior1 list of employees’
names and addresses provided by the Employer con-
tained 10 inaccurate addresses out of approximately
142 eligible voters. Contrary to our dissenting col-
league, we agree with the hearing officer’s finding, for
the reasons stated below, that the circumstances here
are insufficient to warrant a new election. In conclud-
ing that the Employer substantially complied with the
Excelsior requirements, however, we emphasize that it
is important to the holding of fair elections that em-
ployers supply unions with timely, complete and accu-
rate information on Excelsior lists. ‘‘The Excelsior rule
is . . . intended . . . to achieve important statutory
goals by ensuring that all employees are fully informed
about the arguments concerning representation and can
freely and fully exercise their Section 7 rights.’’ Mod
Interiors, 324 NLRB 64 (1997).2
In adopting the hearing officer’s recommendation to
overrule the Petitioner’s Objection 1, we emphasize the
absence of evidence that the illegible names and incor-
rect addresses on the Excelsior list were due to inten-
tional misconduct or bad faith on the part of the Em-
ployer.3 The Excelsior list, developed by the Employ-
er’s payroll contractor, was ultimately derived from ad-
dresses provided by employees to the Employer’s own
personnel office employee. They provided their ad-
dresses when they were first hired, and the Employer’s
operations manager indicated in his unrebutted testi-
mony that employees were under a continuing obliga-
tion to report address changes to that personnel office
employee if they moved. The list was clear and leg-
ible, but was rendered partly illegible when the Em-
ployer faxed it to the Board’s Regional Office. When
the Regional Office apprised the Employer of the prob-
lem, the Employer promptly cooperated and supplied
the Regional Office with a legible copy of the list.
Such cooperation is to be encouraged, and is an indica-
tion that the Employer was not acting in bad faith
when it submitted its original list. From the new copy
supplied, the Regional Office was able to clarify, over
the telephone, any questions that the Petitioner raised
as to names and addresses appearing on the list. The
Petitioner did not request another copy of the list.4
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Interiors Systems Local 1045,
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, and that it is not the exclusive
representative of these bargaining unit employees.
CHAIRMAN GOULD, dissenting.
I would reverse the hearing officer’s finding of no
objectionable conduct, sustain the Petitioner’s Objec-
tion 1, and set aside the election held on June 25,
1997. Contrary to my colleagues, I find that the illegi-
ble and inaccurate eligibility list faxed by the Em-
ployer was objectionable where, as here, the election
was decided by a close margin and the inaccuracies
may have compromised the Petitioner’s ability to com-
municate with a determinative number of voters. See
my concurring opinion in Fountainview Care Center,
323 NLRB 990 (June 16, 1997). See also Mod Interi-
ors, 324 NLRB 164 (1997).
The Board has long recognized that the purpose of
the Excelsior rule is not to test employer good faith or
‘‘level the playing field’’ between petitioners and em-
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1163BEAR TRUSS, INC.
ployers, but to achieve important statutory goals by en-
suring that all employees are fully informed about the
arguments for and against representation and can freely
and fully exercise their Section 7 rights. North Macon
Health Care Facility, 315 NLRB 359, 360–361 (1994).
See also Excelsior Underwear, 156 NLRB 1236, 1241
(1966). In the instant case, the Petitioner’s representa-
tive testified that he had so much difficulty in trying
to decipher the list that he had to contact the Region
for clarifications from the Employer. He further testi-
fied that, only a few days before the election, he dis-
covered that 10 of the approximately 142 addresses
were inaccurate. In the circumstances of this case,
where the election was decided by two votes, these in-
accuracies involved determinative votes. In my view,
this inaccurate information may have compromised the
Petitioner’s ability to communicate with all of the eli-
gible voters and deprived those employees of the abil-
ity to cast a free and reasoned vote. Accordingly, I
would set aside the election.
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS TO THE
CONDUCT AFFECTING THE RESULTS OF
THE ELECTION
. . . .
Objection No. 1
In this objection allegation the Petitioner asserts that the
Employer interfered with the conduct of election by furnish-
ing an inaccurate and illegible election eligibility list. The
Petitioner called one witness, Edward Musser, in support of
this objection allegation. The Employer called two witnesses,
Larry Helman and Larry Steffenhagen, regarding its position
on the objection allegation. Their pertinent testimony is re-
counted below:
Edward Musser testified that he had occupied the position
of union representative/organizer for about one year. He tes-
tified that there had been previous elections with Bear Truss,
the most recent in 1996. Musser testified that a union official
picked up the Excelsior list on June 11, 1997 at the Board
Regional Office. (The list that was received by the Petitioner
was entered into evidence as Petitioner’s Exhibit No. 1.)
Musser testified that he found the list difficult to read, hav-
ing difficulty trying to decipher the names and addresses.
Thereafter, probably the next day, Musser telephoned the
Board agent handling the case and said that he was having
difficulty figuring out the spelling of the names. After going
over the list with the Board agent, on that occasion, and
again later the following week, Musser obtained the correct
spellings of the names. Musser testified that he did not do
any mailing of literature during the election campaign. How-
ever, a few days prior to the election, he did conduct home
visitations. It was at that time, according to Musser, that he
found that some of the addresses on the Excelsior list were
incorrect. Musser testified that he made approximately 80
home visits, and for 10 of those he did not find the person
who was listed on the Excelsior list to be at that address.
Musser did not contact the Board agent about the addresses.
He said that because the home visits were done on Monday,
June 23 or Tuesday, June 24, just prior to the election date
of Wednesday June 25, 1997, he felt it was too late to con-
tact the Board.
Larry Helman testified that he occupied the position of op-
erations manager for the Employer for approximately 2
years. Helman said that upon receiving the request for the
Excelsior list from the Board agent, he contacted the outside
accounting firm, Roslund Prestage, which does the Employ-
er’s payroll, for an alphabetized list of its employees and
their addresses. (The information regarding the addresses of
the employees is originally obtained by the personnel depart-
ment at Bear Truss from the W-4 the employees fill out
when they are hired. Any subsequent change of address is
done on a form for that purpose. This information is sent to
the accounting firm for payroll and other purposes.) In re-
sponse to the request from Helman, Roslund Prestage faxed
a copy of their most current employee listing to Helman.
Helman then faxed a copy of that list to the Regional Office.
According to Helman, some names on the list were obliter-
ated with a heavy dark line, those individuals being employ-
ees who were no longer employed by the Employer or who
were supervisors and/or managerial persons. Some of the
other names, approximately 13, had a thin line drawn
through them. According to Helman, he drew such a line
though the names because he did not think they would be
eligible to vote because they were hired as ‘‘89 day employ-
ees.’’ Subsequently, Helman said that he received a tele-
phone call from the Board agent who said that a gentleman
from the union was having a hard time reading the list.
Helman was asked to send another list. Thereupon, Helman
sent the original list from Roslund Prestage to the Regional
Office by U.S. mail. Helman testified that he was not con-
tacted again by the Board about any diffculties with the Ex-
celsior list prior to the election. Helman did testify that he
did have a conversation at some point prior to the election
with the Board agent about the ‘‘89 day employees’’ and
was told by the Board agent that according to case law they
would be eligible to vote, and Helman said, ‘‘Fine, no prob-
lem.’’ Helman stated that the Board agent did not ask to
have him re-send those names and addresses. Helman testi-
fied that Employer’s Exhibit No. 1 was a copy of the list that
was received from Roslund Prestage and mailed to the Re-
gional Office.
Larry Steffenhagen testified that he was employed as a
crew leader for the Employer, and served as the observer for
the Employer at the election held on June 25, 1997. He said
that during the course of the election he sat with the Peti-
tioner observer at the table and checked the names of em-
ployees as they came into vote. He said that at no time did
they have difficulty finding the names on the list, or reading
the names.
Discussion:
Petitioner asserted in its closing argument that because the
Excelsior list was difficult to read, and contained 10 incor-
rect addresses, the election should be set aside. Petitioner ar-
gued that this is particularly necessary in view of the election
being decided by a few votes. Moreover, the Petitioner ar-
gued that the Board should as a matter of policy refuse to
accept facsimiles for Excelsior purposes.
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1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer filed a motion to reopen the record, received on
July 30, 1997. In that motion, the Employer urged that the hearing
be reopened so that it could present evidence with respect to the
issue that the Petitioner had other avenues to contact the employees,
and indeed did reach employees despite the errors in the addresses.
The Board has held that the issues of the union’s actual access to
employees, or the extent to which employees are aware of the elec-
tion issues and arguments are not litigable in applying the Excelsior
rule. ‘‘To look beyond the question of substantial completeness of
the lists and into the further question of whether employees were ac-
tually informed about the election issues despite their omission from
the list would spawn an administrative monstrosity. Thus, no inquiry
is therefore made into the question of whether the union might have
obtained some additional names and addresses of eligible employees
prior to the election or whether the omitted employees might have
garnered sufficient information about the issues to have made an in-
telligent choice. Sonfarrel, Inc., 188 NLRB 969 (1971). Thus, I
would deny the motion on the basis that the evidence is not relevant
to the disposition of the case. The Employer also asserted that 9 not
10 addresses were incorrect on the list. This factor will not affect
my ultimate finding on the issue, and thus I will not reopen the
record on this account. Accordingly, the motion is denied.
The Employer takes the position that it complied with the
Excelsior requirement, that it faxed a legible Excelsior list to
the Board, and upon the request of the Board agent imme-
diately followed up with a hard copy. The Employer also as-
serts that it sent the most recent and best possible informa-
tion it possessed as to employee names and addresses. Fi-
nally, the Employer notes that it did not act in bad faith or
with gross negligence in this matter.1
Although the Excelsior rule is not to be applied mechani-
cally, it is well established that substantial compliance is re-
quired. Gamble Robinson Co., 180 NLRB 532 (1970). The
Employer, by omitting a substantial number of voters’ names
from the Excelsior list, can defeat the very purpose of the
Excelsior rule: ‘‘to further the fair and free choice of bar-
gaining representatives . . . by encouraging an informed
employee electorate and by allowing unions the right to ac-
cess to employees that management already possesses.’’
EDM of Texas, 245 NLRB 934 (1979) (quoting NLRB v.
Wyman-Gordon Co., 394 U.S. 759 (1969)). The Board views
the omission of names and addresses of eligible voters from
the Excelsior list as a more serious matter than inaccuracies
regarding names and addresses.
In the case of omissions from the Excelsior list, the Board
presumes that an employer’s failure to supply a substantially
complete eligibility list has a prejudicial effect on the elec-
tion. Thus, the question of whether the omissions were the
result of bad faith or mere inadvertence does not influence
the calculation of whether compliance has been substantial or
not. Evidence of bad faith is unnecessary in these situations
because the potential harm from list omissions is deemed
sufficiently great to warrant a strict rule that encourages con-
scientious compliance, Thrifty Auto Parts, Inc., 295 NLRB
1118 (1989). In Thrifty Auto Parts, Inc., supra, omissions of
9.5% of eligible voters’ names from the eligibility list re-
sulted in setting aside the election in the absence of bad
faith. A similar result was reached in Gamble Robinson Co.,
supra, where 10% of eligible voters were inadvertently left
off the list. In a recent case, Shore Health Care, 323 NLRB
No. 172 (1997), omission of 5% of eligible voters from the
Excelsior list was sufficient to set an election aside where the
employer had acted in bad faith. In cases where such omis-
sions were not found to be substantial enough to affect the
results of the election, the omissions amounted to 7% in
Kentfield Medical Hospital, 219 NLRB 174 (1975), and 6%
in Advance Industrial Security, 230 NLRB 72 (1977).
However, as noted above, the Board views the omission
of names and addresses of eligible voters from the Excelsior
list as a more serious matter than mere inaccuracies regard-
ing names and addresses, and this distinction is given effect
in determining whether the employer had substantially com-
plied with the Excelsior rule. Thrifty Auto Parts, supra. In
this line of cases the Board generally will not set an election
aside because of an insubstantial failure to comply with the
Excelsior rule if the employer has not been grossly negligent
and has acted in good faith. In Lobster House, 186 NLRB
148 (1970), inaccuracies on the Excelsior list were found to
be of an insubstantial nature to affect the results of the elec-
tion, where 20 out of 97 addresses were erroneous (a 16%
error rate). Similarly, in West Coast Meat Packing Co., Inc.,
195 NLRB 37 (1972), 22% of addresses on the Excelsior list
were inaccurate, the inaccuracies were not found to be sub-
stantial enough to require setting aside the election. In that
case, the addresses had been drawn from the W-4 forms
completed by employees. In Days Inns of America, 216
NLRB 384 (1975), 13.2 % of voter addresses were incorrect,
those addresses also having been drawn from employee per-
sonnel forms. In Fountainebleau Hotel Corp., 181 NLRB
1134 (1970), the Board found substantial compliance with
the Excelsior requirement despite inaccuracies on the list
which involved 18% of eligible voters. In Women in Crisis
Counseling & Assistance, 312 NLRB 589 (1993), there was
a 30% inaccuracy rate, and the Board ruled that the employer
had substantially complied with the requirements of the Ex-
celsior rule, by providing the full names and addresses of all
the eligible voters it had on file.
In all these cases there was no showing of bad faith or
gross negligence, and the errors involved inaccuracies and
not the omission of eligible voters from the list. Further, in
many of these cases the vote was close enough to have been
possibly affected by the number of errors on the list. In Lob-
ster House the vote was 27 yes and 41 no; in West Coast,
the vote was 17 yes and 19 no; in Fountainebleau the vote
was 125 yes and 138 no.
However, most recently in Mod Interiors, Inc., 324 NLRB
No. 33 (1997), the Board ordered a new election in the ab-
sence of bad faith, where the original Excelsior list contained
a significant number of inaccurate addresses (40%); a cor-
rected list was only available to the union for eight days be-
fore the election; and the election was decided by a close
margin. In downplaying the good-faith test, the Board noted
that, ‘‘The Excelsior rule is not intended to test employer
good faith or ‘level the playing field’ between petitioners and
employers, but to achieve important statutory goals by ensur-
ing that all employees are fully informed about the argu-
ments concerning representation and can freely and fully ex-
ercise their Section 7 rights.’’ The Board noted that the em-
ployer had not substantially complied with the Excelsior rule
inasmuch as 40% of the addresses on the original list were
inaccurate, and a corrected list was received only eight days
prior to the election, noting that in a close election this lack
of information may have impeded a free and reasoned
choice.
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1165BEAR TRUSS, INC.
2 The Petitioner did not assert at the hearing that it could not read
fully any name or address, only that the quality of the list was poor,
and it could not ascertain the correct spellings of some names. From
my own review of that list, I note that there were a handful of en-
tries that were smudged and the characters in the names or number
in the addresses were difficult to decipher correctly. The names that
had the thin line drawn through them, as testified to by Helman,
were still discernible.
In the instant case, the Employer faxed the Excelsior list
on June 11, 1997, the same day that the Stipulated Election
Agreement was approved. The list that was faxed was leg-
ible. However, for whatever reason, the fax did not come
across with the same clarity as the original document.2 The
Regional Office turned this faxed list over to the Petitioner,
and when it voiced its inability to discern completely certain
names and addresses, the Regional Office contacted the Em-
ployer who immediately put a hard copy in the mail. From
that list, the Board agent was able to clarify over the tele-
phone any questions the Petitioner had as to spellings of
names and addresses, within a few days, but probably less
than 10 days before the election. Petitioner could not recall
the exact dates of the conversations with the Board agent.
The Petitioner was not specific as to which or how many
names and or addresses it could not completely decipher.
The Petitioner never asked for or received another copy of
the list from the Regional Office. Additionally, it came to
light just a day or two prior to the election that the list con-
tained 9 or 10 incorrect addresses.
The percentage of error in the instant case does not ap-
proach the 40% error rate in Mod Interiors. Nine or ten inac-
curate addresses in a list of 142 would constitute an error
rate of about 7%. Even assuming that another 10 addresses
and or names were illegible, that would make for an error
rate of about 14%. However, as in Mod, the election was
close. Notwithstanding this, Mod did not establish a rule
automatically overturning the results of an election where the
number of inaccuracies on the Excelsior list exceeded the
margin of the vote. Had the Board done so the task in this
case would have been easy. Mod does not specifically over-
rule previous case law, including those cases cited above, in-
volving inaccuracies. Furthermore, although at first blush
such a rule would seem to be reasonable, it would require
that if there was one inaccurate address and the election was
decided by one vote, that the election be set aside, even if
the inaccuracy rate was only 1% or less. Thus, it appears that
the Board is still applying a case by case analysis as to
whether the employer had substantially complied with the
Excelsior requirement. I am mindful that this was a close
election, but I do not think that the percentage of inaccura-
cies on the list was sufficient to overturn the election, inas-
much as the number does not approach the 40% in Mod,
which was an inaccuracy rate higher than in all the above-
cited cases.
Finally, as noted above, the Petitioner makes the argument
that the Board should as a matter of policy refuse to accept
facsimile copies for Excelsior purposes. Indeed, this matter
is dealt with in the Board’s Rules and Regulations, Section
102.114. Excelsior lists are not one of the documents listed
in subsection (g) of Section 102.114 for which facsimile
transmissions are not to be accepted for filing.
Accordingly, I recommend that this objection allegation be
overruled.
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