Days Inns of America, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 384 (N.L.R.B. 1975)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Days Inns of America, Inc. and Nortico Corporation
and Hotel, Motel, Restaurant Employees and
Bartenders Union , Local 737, AFL-CIO, Petition-
er. Case 12-RC-4458
January 30, 1975
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On June 28, 1974, the Regional Director for Region
12 issued a Supplemental Decision on Objections,
Order, and Direction of Second Election in the
above-entitled proceeding, in which he sustained the
Petitioner's Objection 1 and overruled the remaining
objections.' Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional
Director's Supplemental Decision on the grounds
that in sustaining Objection 1 he departed from
precedent and made factual findings which were
clearly erroneous.
By telegraphic order dated August 5, 1974, the
request for review was granted and the second
election directed was stayed pending decision on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, and
makes the following findings.
Objection I alleges that the list of names and
addresses of eligible voters supplied by the Employer
prior to the election contained 26 incorrect addresses
and therefore did not meet the requirements of
Excelsior.2 The Regional Director found that 16 (13.2
percent) of the addresses of the 121 eligible voters on
the list were defective. As 14 of the 16 defective
addresses for the most part varied substantially from
those contained in the Employer's records and the
Employer produced no records to substantiate its use
The election herein was conducted on April 11, 1974, pursuant to a
Decision and Direction of Election and an Order Amending Decision and
Direction of Election to Update Eligibility Date , issued by the Regional
Director on October 12, 1973, and March 8, 1974, respectively . The tally of
ballots for the election showed that , of approximately 121 eligible voters, 71
ballots were cast, of which 10 were for, and 54 against , the Petitioner, and 7
were challenged . The Petitioner filed nine numbered objections
2 Excelsior Underwear Inc, 156 NLRB 1236 (1966).
, The 13 defective addresses submitted vaned from those contained in
the files in the following particulars : "Rt. #" for "Rt 1" (Amick, D ), "628
W. Smith Apt #7" for "628 W South St , Apt. 7" (Bracy, H.); "218 W
216 NLRB No. 72
of the other two incorrect addresses, he concluded
that submission of a list with such inaccuracies
constitutes gross negligence, tantamount to omission
of the names insofar as written communication with
the employees is concerned, and is not substantial
compliance with Excelsior. The Employer asserts
that the facts do not support a finding that it was
grossly negligent or acted in bad faith and that the
percentage of inaccurate addresses herein is not so
substantial as to constitute noncompliance with
Excelsior.
The Employer in its request for review stated that
its motel operations are highly seasonal and that it
has experienced an employment turnover rate of 500
percent in the most recent 12 months, as illustrated
by the fact that 24 percent of the employees included
on the Excelsior list had terminated their employ-
ment prior to the election. As found by the Regional
Director, the managers of the motel restaurant and
cafeteria and the motel manager's secretary who
typed the list derived the names of current employees
from the payrolls and obtained the addresses either
from application or personnel forms or by asking the
employees themselves or others who knew them. The
secretary testified that records were scattered.
As to 13 of the 16 defective addresses of the eligible
voters on the list submitted by the Employer, there
were in fact significant variations from the addresses
of these employees contained in the Employer's files
on their application or personnel forms.3 The other
three defective addresses were obtained from other
sources above mentioned. As is evident, the defects
in the addresses, if produced by errors in transcrip-
tion, were in some cases minor and in others the
result of varying degrees of carelessness . In five
instances,4 the street addresses supplied were dis-
tinctly different from those contained in the files, and
one might speculate that those responsible for
preparing the list had reason to believe the addresses
in the files were stale and, as in the three cases where
no record addresses were available, they may have
accepted information from other sources as to
current addresses which turned out to be erroneous.
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
Smith" for "218 W South St." (Brooks, J. A.); "Orlando, Fla " for
"Apopka, Fla." (Brower, P. & Denmark , D.); "420 W Oak Rde Rd " for
"420 W Oak Ridge Rd. #207" (Gilbert, D.); "918 Portage St " for "3131
Oak Ridge Rd., Bldg 9 #4" (Haus, S.); "113 Apt.o Park Ave." for "113 Apt
D, Park Ave " (Johnson , V. H ); "E 7th St." for "17 S. Highland" (Jones,
H.), "2026 Ornge Cnter Blvd" for "2026 Orange Center Blvd. #I"
(Lampkin, C.), "700 Crestlake Dr " for "7000 Crestlake Dr." (Sharkey, J );
"147 W 15th St " for "147A E 15th St." (Shuman , D.); "2929 W Oakridge
Rd " for "4422 Banneka St." (Slaughter, H.).
4 Haus, S.; Jones, H., Slaughter , H.; Bracy, H.; and Brooks, J A The
errors in the two last named were more likely careless typographical ones
DAYS INNS 385
negligent and has acted in good faith .5 In the instant
case , we note first of all that the Employer's motel
operations here involved experience very high em-
ployee turnover, in part because of seasonality of the
operations , and in part because of the transient
nature of the labor force from which it obtains its
employees. As found by the Regional Director, the
Employer's personnel files were chaotic and scat-
tered . These are factors we must consider in assessing
the Employer's compliance with our rule. We do not
condone the apparent unconcern for complete
accuracy exhibited in the Employer's use of initials
for given names and in abbreviating and in some
cases omitting portions of addresses , instead of
supplying the more complete information in its files;
the carelessness of its managers or the secretary who
typed the list , in transcribing some of the addresses;
and the evident lack of any effort to verify or
proofread the typewritten list for obvious typographi-
cal errors , However, these shortcomings, in our
opinion, do not, without more, justify the conclusion
that the Employer exercised gross negligence or
exhibited bad faith in submitting the list containing
the above-described inaccurate addresses. In the
circumstances , we disagree with the Regional Direc-
tor's conclusion that the Employer's submission of
these 16 defective addresses was tantamount to
omission of the names insofar as communication
with the employees is concerned.6 As we do not
apply the Excelsior rule mechanically, we find here
that the Employer substantially complied with the
rule even though 16 of the 121 addresses (13.2
percent) of eligible voters listed contained inaccura-
cies.7 Accordingly, the Petitioner's Objection 1 is
hereby overruled, and as all the objections have been
overruled and the tally of ballots shows that the
Petitioner has not received a majority of the valid
ballots cast, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for Hotel, Motel, Restau-
rant Employees and Bartenders Union, Local 737,
AFL-CIO, and that said labor organization is not
the exclusive representative of the employees in the
unit found appropriate within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.
S West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972); The Co./ Omaha Branch d/b/a Gamble Robinson Co., 180 NLRB 532 (1970), and
Lobster House, 186 NLRB 148 (1970); Fontainebleau Hotel Corporation , 181 Sonfarrel, Inc, 188 NLRB 969 (1971 ), which involved omissions of names
NLRB 1134 (1970 ). and addresses of eligible voters from the list , are inapposite.
6 For this reason , the cases relied upon by him, Pacific Gamble Robinson 7 See the cases cited in fn 5, supra