J.P. Phillips, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 2001

336 N.L.R.B. 1279 (N.L.R.B. 2001)

J.P. PHILLIPS, INC. 1279
J.P. Phillips, Inc. and Operative Plasterers and Ce-
ment Masons International Association, Local 5,
AFL–CIO, Petitioner and International Union
of Bricklayers & Allied Craftworkers, Locals 56
& 74, AFL–CIO. Case 13–RC–20544
December 17, 2001
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to a mail ballot
election held April 9–23, 2001, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 31 for the Petitioner,
10 for the Intervenor,1 and 2 for neither, with 2 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and brief and has decided to adopt the hearing
officer’s findings and recommendations only to the ex-
tent consistent with this Decision and Direction of Sec-
ond Election, and finds that the election must be set aside
and a new election held.2
Intervenor’s objections Nos. 1–3 allege that there were
irregularities regarding the submission of the required
Excelsior3 list. In support of these objections, the Inter-
venor contends, inter alia, that it received, via facsimile
(fax) from the Region, an incomplete Excelsior list, and
later received, via mail from the Region, an untimely
Excelsior list. The Intervenor argues that the Petitioner
possessed a complete list for a significantly longer period
of time than the Intervenor did.
The relevant facts are as follows. An election petition
was filed on February 2, 2001,4 and a Decision and Di-
rection of Election was issued on March 14. On March
21, the Employer provided the Regional Director with a
list containing the names of employees eligible to vote in
the election. Contrary to the Excelsior requirements,
however, this list did not contain the employees’ ad-
dresses. Nonetheless, the Region faxed this list to the
parties through their counsel that same day. On March
22, the Employer submitted a revised list to the Region.
The hearing officer correctly found that this list substan-
tially complied with the Excelsior requirements. On
March 23, the Region faxed the March 22 list to the par-
ties’ counsel. However, the Intervenor contends, and the
hearing officer found, that the faxed list received by the
Intervenor on March 23 was incomplete, because the fax
did not include the third page of the three-page list. The
Petitioner received a complete list via fax on March 23.

ure.
1 The Intervenor in this case is International Union of Bricklayers &
Allied Craftworkers Locals 56 and 74 (Bricklayers).
2 We adopt the hearing officer’s recommendation to overrule the
Intervenor’s objections relating to alleged irregularities regarding the
mail balloting proced
3 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
4 All dates refer to 2001, unless otherwise indicated.
On March 29, the Region mailed to the parties’ coun-
sel and the local unions complete copies of the March 22
list. At the hearing, the parties stipulated that Bricklay-
ers Local 74 received this mailed list on March 30, while
Bricklayers Local 56 received its copy on April 2. As
stated above, the election was conducted on April 9
through April 23.
The hearing officer recommended, inter alia, overrul-
ing Intervenor’s objections regarding the Excelsior list.
She found that, even though both Bricklayers locals did
not receive a complete Excelsior list on March 23, the
fact that the list was “obviously incomplete” should have
led the Intervenor to “take affirmative steps to obtain
additional copies of the March 22” list. The hearing of-
ficer also found that the Intervenor did not need the Ex-
celsior list for its campaign because evidence showed
that the Intervenor was able to contact eligible voters
without the list. Finally, the hearing officer found that,
because Bricklayers Local 74 received a complete copy
of the Excelsior list in the mail on March 30, the Interve-
nor had the list 10 days before the election, and, thus,
there was no reason to set aside the election. For the
reasons discussed below, we reverse the hearing officer
and set aside the election.
Under Excelsior, an employer must submit a list of
employees who are considered eligible to vote in an elec-
tion to the Regional Director within 7 days after the ap-
proval of an election agreement or the issuance of a deci-
sion and direction of election. Excelsior Underwear,
Inc., supra at 1239–1240. The list must contain employ-
ees’ names and addresses. Id. After an employer pro-
vides the Regional Director with the list, “[t]he Regional
Director . . . shall make this information available to all
parties in the case. Failure to comply with this require-
ment shall be grounds for setting aside the election
whenever proper objections are filed.” Id. at 1240. See
generally NLRB Casehandling Manual (Part Two) Rep-
resentation Proceedings, Sec.11312.1.
The Excelsior rule is designed “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 164 (1997), citing North
336 NLRB No. 130
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
Macon Health Care Facility, 315 NLRB 359, 360–361
(1994). “The Excelsior rule helps achieve this goal of
‘an informed employee electorate’ by giving unions the
right of access to employees that employers already have,
thus enabling employees to hear” from all parties on the
unionization question. Special Citizens Futures Unlim-
ited, 331 NLRB 160 (2000), citing Thiele Industries, 325
NLRB 1122 (1998). These principles hold true equally
where two unions are competing to represent employees.
Regarding the delayed receipt of an Excelsior list, “the
relevant inquiry is whether the delay—however caused—
interfered with the purpose behind the Excelsior re-
quirements of providing employees with a full opportu-
nity to be informed of the arguments concerning repre-
sentation, so that they can fully and freely exercise their
Section 7 rights.” Alcohol & Drug Dependency Services,
326 NLRB 519, 520 (1998) (footnote omitted), citing
Mod Interiors, supra. “It is extremely important that the
information in the Excelsior list be not only timely but
complete and accurate so that the union may have access
to all eligible voters.” Mod Interiors, supra. Finally,
“tangible evidence” of prejudice to a party who did not
timely receive an Excelsior list is not required. Alcohol
& Drug Dependency Services, supra at fn. 8.
Here, we find that the Intervenor’s delayed receipt of a
complete Excelsior list can be attributed to the Region.
As stated above, the March 22 list faxed by the Region to
the Intervenor on March 23 was incomplete because the
fax did not include a necessary page containing approxi-
mately 48 names and addresses. (There were 102 eligi-
ble employees dispersed over different locations.) Thus,
the Region failed to send successfully a complete list to
the Intervenor. The Petitioner, however, received, via
fax, a complete copy of the March 22 list on March 23.
And, as stated above, the hearing officer essentially
found that, although the list faxed to the Intervenor was
incomplete, the Intervenor did not need the list because,
first, it did not take affirmative steps to procure a com-
plete list, and, second, it was contacting eligible employ-
ees without the benefit of a complete list.
We disagree with this conclusion. First, it is well es-
tablished that “[t]he Excelsior requirement applies to all
elections, and a union’s ability or inability to obtain the
Excelsior information through alternative means in no
way affects or substitutes for the Excelsior require-
ments.” Alcohol & Drug Dependency Services, supra fn.
8.
Second, the duty to send an Excelsior list to the parties
lies squarely with the Region. See Section 11312.2 of
NLRB Casehandling Manual (Part Two) Representation
Proceedings: “Immediately upon receipt [of the list from
the employer], the Regional Director should mail the list
to all labor organizations or individual petitioners in-
volved.” In the circumstances of this case, the Intervenor
was under no obligation to take affirmative steps to pro-
cure a complete list. The nonconforming list of March
21, which had been faxed to the Intervenor on that same
date, contained significantly fewer names than the con-
forming list (or the incomplete list faxed to the Interve-
nor on March 23). Thus, contrary to the hearing officer,
it is not at all clear that the Intervenor would have, or
should have, recognized that it had received an “obvi-
ously incomplete” list on March 23.
Finally, contrary to the hearing officer, the fact that
one of the Bricklayers locals ultimately received a com-
plete Excelsior list in the mail 10 days before the begin-
ning of the election is not determinative. Section
11302.1 of NLRB Casehandling Manual (Part Two),
Representation Proceedings states that an election “may
not be held sooner than 10 days after” the Regional Di-
rector has received the Excelsior list. But “[t]his provi-
sion merely directs that the Board will give the petitioner
an opportunity to make use of the list for at least 10 days
before conducting the election.” Mod Interiors, Inc.,
supra. (Emphasis added.) As stated above, the decision
and direction of election issued on March 14. The Em-
ployer submitted a conforming list to the Region on
March 22. Thus, all parties could have had the list for
almost 3 weeks before the election instead of the mere
10-day minimum.
What is determinative here is that, because the Peti-
tioner received a complete Excelsior list on March 23, it
had the list for 7 days longer than Bricklayers Local 74
had the list, and 10 days longer than Bricklayers Local
56 had the list. Due to the Region’s failure to send a
complete Excelsior list to the Intervenor on March 23,
the Petitioner possessed the list significantly longer.
This disparity placed the Intervenor at an obvious disad-
vantage and on its face interfered with employees’ “full
opportunity to be informed of the arguments concerning
representation, so that they can fully and freely exercise
their Section 7 rights.” Special Citizens Futures Unlim-
ited, supra. See also Alcohol & Drug Dependency Ser-
vices, supra at 520 (disparity “interfered with the purpose
behind the Excelsior requirements of providing employ-
ees with a full opportunity to be informed of the argu-
ments concerning representation”). Accordingly, we
shall set aside the election.
[Direction of Second Election omitted from publication.]

CHAIRMAN HURTGEN, concurring.
I concur. I write separately, however, to emphasize
that this case differs from Alcohol & Drug Dependency
Services, 326 NLRB 519 (1996), a case in which I dis-
sented.
J.P. PHILLIPS, INC. 1281
In Alcohol & Drug Dependency Services, two “de-
lays,” both of which were attributable to the Region, re-
sulted in the union’s untimely receipt of the Excelsior
list. First, the Region erroneously directed the employer
to provide it with the list by October 31, rather than by
October 30. Second, although the Region received the
list from the employer on October 31, it waited until No-
vember 3 to mail it to the union. As a result of the Re-
gion’s errors, the union did not receive the list until No-
vember 5, 5 days before the election. The majority found
that these delays justified setting aside the election.
In my dissent, I stated, inter alia, that, “[w]here . . . de-
lays [regarding receipt of an Excelsior list] are not attrib-
utable to the Employer, the Board will set aside the elec-
tion only if the Union can show that it was materially
prejudiced by the delay.” 326 NLRB at 520. In Alcohol
& Drug Dependency, there was no showing of material
prejudice.
Like Alcohol & Drug, the instant case involves an er-
ror by the Region, not by the Employer. However,
unlike that case, there is prejudice to one of the two
competing unions.1 On March 22, the Employer submit-

1 The Unions are Plasterers Local 5 (Petitioner) and Bricklayers Lo-
cals 56 and 74 (Intervenor).
ted a valid Excelsior list to the Region. On March 23,
the Region faxed the three-page list to the parties. The
Petitioner received the complete list. However, due to an
error in the Region’s transmission, the Intervenor re-
ceived only two pages of the list. Thus, it did not receive
48 names and addresses (out of 102). On March 29, the
Region mailed a complete copy of the list to the parties.
One Intervenor local received this list on March 30. The
other Intervenor local received its copy on April 2. The
mail ballot election was held from April 9 through April
23.
In sum, the Petitioner received the complete list 7–10
days before the Intervenor received it.2 It is clear that the
Excelsior list is very important for purposes of commu-
nicating with employees. In light of this, it seems appar-
ent to me that a union that has the list 7–10 days before
its rival is blessed with a significant advantage. The rival
is at a concomitant disadvantage, and is substantially
prejudiced vis-à-vis the other union. In light of this, and
in view of the Board’s compelling interest in assuring
fairness and the appearance of fairness in elections, I join
my colleagues in setting aside the election.
2 That is, as noted, one local of the Intervenor received the list on
March 30 and the other received it on April 2.