Merchants Transfer Co.

National Labor Relations Board - Board Decisions

Mar 31, 2000

330 N.L.R.B. 1165 (N.L.R.B. 2000)

MERCHANTS TRANSFER CO. 1165
Merchants Transfer Company and PACE Interna-
tional Union, AFL–CIO.1 Case 15–RC–8199
March 31, 2000
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on May 27, 1999, and the hearing officer’s report
recommending disposition of the objections. The elec-
tion was held pursuant to a Stipulated Election Agree-
ment. The tally shows 27 for and 29 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings2 and recommendations as modified3 and finds that
the election must be set aside and a new election held.
The hearing officer found merit in the Petitioner’s Ob-
jection 3, which alleges that the election must be set
aside because the Employer provided an Excelsior4 list
with inaccurate addresses. For the following reasons, we
agree with the hearing officer.
The hearing officer found that the addresses of 13 of
the 58 employees on the Excelsior list were incorrect.
The Petitioner was ultimately able to find correct ad-
dresses for 7 of the 13 employees, but was unable to con-
tact the remaining 6 employees before the election.
Thus, the Employer provided incorrect addresses for
22.41 percent of the employees on the Excelsior list and
even with further efforts the Petitioner was still unable to
reach 10.34 percent of the employees.
The hearing officer also found that in assembling the
addresses of employees on the Excelsior list, the Em-
ployer acted in a “grossly negligent manner.” In this
connection, the record shows that the Employer’s presi-
dent, Tom Taul, admitted that he had known since 1992
that the Company had incorrect addresses for many of its
rank-and-file employees. In fact, he testified that the
Company ceased mailing W-2 forms to employees be-
cause many were returned by the Post Office due to in-
correct addresses. Further, Taul testified that although
supervisors maintain updated lists of employee phone
numbers so that employees can be contacted when the
Employer needs to adjust their work schedules he did not
direct anyone to telephone the employees to verify the
accuracy of the addresses on the Excelsior list. In sum,
the record shows that although Taul knew that a signifi-
cant number of employee addresses on the Excelsior list
were incorrect, he nevertheless forwarded it to the Union
without taking a step that was readily available to him to
correct the inaccuracies.5 In our view, such conduct
demonstrates gross negligence or bad faith on the part of
the Employer.
1 On January 4, 1999, the United Paperworkers International Union,
AFL–CIO, CLC merged with the Oil, Chemical and Atomic Workers
International Union. Accordingly, the caption has been amended to
reflect that change.
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 a clear preponderance 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 Because we adopt the hearing officer’s recommendation to sustain
Objection 3, we find it unnecessary to pass on his recommendations
that Objections 1 and 9 should also be sustained.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the remainder of the Petitioner’s
Objection 1, and Objections 2, 4, 6, 7, and 8.
4 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
Although a finding of gross negligence or bad faith is
not a precondition for the conclusion that an employer
has failed to comply substantially with the Excelsior rule,
the Board has held that a finding of gross negligence or
bad faith will preclude a finding that an employer was in
substantial compliance with the rule. See North Macon
Health Care Facility, 315 NLRB 359, 361 (1994). See
also Women in Crisis Counseling, 312 NLRB 589 (1993)
(“Board may set aside an election because of an insub-
stantial failure to comply with the Excelsior rule if the
employer has been grossly negligent or acted in bad faith
in providing inaccurate addresses”).
Our dissenting colleague’s reliance on Singer Co., 175
NLRB 211, 212 (1969), is misplaced. In Singer, the ad-
dresses the employer provided the union were the same
addresses it used in communicating with the employees.
In the instant case, unlike Singer, the Employer admitted
that it no longer used the addresses it had submitted on
its Excelsior list because mailings were returned as unde-
liverable. Therefore, unlike the employer in Singer, the
Employer here provided the Union with addresses that
were “less accurate than it used for its own purposes.”
175 NLRB at 212.
Bear Truss, Inc., 325 NLRB 1162 (1998), is also inap-
posite. There, when the employer was informed by the
Regional Office that its Excelsior list was rendered par-
tially illegible by the fax transmission, the employer
“promptly cooperated and supplied the Regional Office
with a legible copy of the list,” thus indicating “that the
5 In its exceptions, the Employer argues that the Union failed to alert
the Employer or the Board to the problem with the Excelsior list. Any
such failure on the Union’s part, however, is immaterial because, as
explained above, the Employer knew at the time it furnished the Excel-
sior list to the Union that a significant number of employee addresses
were inaccurate.
Our dissenting colleague’s reliance on Women in Crisis Counseling,
312 NLRB 589 (1993), is also misplaced. In finding that there was no
evidence that the inaccurate addresses the employer provided for the
Excelsior list were the result of bad faith or gross negligence, the Board
noted that on being informed by the Regional Office of the inaccura-
cies, “the Employer immediately obtained and submitted corrected
addresses to the Resident Office, which relayed them to the Petitioner
on that same day.” Here, the Employer knew that many of the ad-
dresses it was supplying were incorrect but made no effort to correct
them.
330 NLRB No. 165
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
Employer was not acting in bad faith when it submitted
the original list.” Furthermore, although the employer’s
submission included errors on approximately 7 percent
of the addresses, there was no showing that the employer
knew that it was supplying incorrect addresses.
Nor does Lobster House, 186 NLRB 148 (1970), sup-
port Member Brame’s position. In that case, the Board
affirmed the rule that an election may be set aside if an
employer has been grossly negligent and acted in bad
faith, but held that, while the employer may have been
negligent in not supplying address changes it apparently
received before the election, it was not grossly negligent,
nor did it act in bad faith. Underlying the Board’s deci-
sion, however, was a set of facts different from those
involved here. In that case, the employer did not supply
five corrected addresses that may have been reported to
its restaurant between the submission of the Excelsior list
and the election, but, if so, apparently were not for-
warded from the restaurant to its corporate offices where
the master employee list was kept and from which the
Excelsior list had been prepared. Lobster House, there-
fore, is simply a case where the employer maintained two
sets of business records and its system for updating ad-
dresses from one set to the other did not produce a list
that was perfectly current. The employer’s system for
transmitting correct addresses was inefficient, or at
worst, negligent in its operation. By contrast, the Em-
ployer here had no system for transmitting correct ad-
dresses. Thus, it knew that its addresses were wrong,
and yet it supplied those addresses to the Union.6 Cf.
Texas Christian University, 220 NLRB 396, 398 (1975)
(although Excelsior list contained inaccuracies, “there is
no indication that at the time of the submission of the list
the Employer was aware of the inaccuracies in the ad-
dresses”); Fontainebleau Hotel Corp., 181 NLRB 1134
fn. 1 (1970) (although Excelsior list contained inaccura-
cies in addresses, “there is no indication that the Em-
ployer knew of the inaccuracies”).
Our colleague also relies on Dr. David M. Brotman
Memorial Hospital, 217 NLRB 558 (1975). In that case,
the employer’s initial list was not attacked as objection-
able, even though some addresses were incorrect. After
the Regional Director sought correct addresses, the em-
ployer declined to supply them, even though it had the
same on file. Notwithstanding this, the Board declined
to overturn the election because the election margin was
substantial and the number of address corrections the
employer refused to provide comprised only 2 percent of
the eligible voters. Obviously, none of these facts is pre-
sent here.
In short, the dissent’s claim that this is a case in which
the Employer provided “its latest, best, list” lacks support

6 Contrary to the contention of our dissenting colleague, we are not
saying that the Employer has a duty to investigate. We are saying that
the Employer in this case knowingly supplied incorrect addresses.
in the record. Because the facts clearly show that the
Employer itself recognized that the list was essentially
worthless for its own purposes, a far more accurate char-
acterization of this case is that the Employer provided its
“laid-to-rest list.”
Here, as discussed above, the record fully supports the
hearing officer’s finding that, at least, the Employer was
grossly negligent in providing an Excelsior list with in-
accurate addresses. In these circumstances, the Em-
ployer’s conduct constitutes a failure to comply with the
Excelsior rule. Accordingly, we shall sustain the Peti-
tioner’s Objection 3 and set aside the election.
[Direction of Second Election is omitted from publica-
tion.]

MEMBER BRAME, dissenting.
The majority finds that the Employer engaged in ob-
jectionable conduct by furnishing the Union with an Ex-
celsior1 list, which contained inaccurate addresses for
some of the unit employees. Solely on the basis of this
finding, they nullify the results of the election and direct
that a second election be held.2 Contrary to the majority,
I would overrule this objection. It is undisputed that the
list furnished to the Petitioner included the most recent
and accurate information in the Employer’s possession.
In these circumstances, there is no precedent and no war-
rant for setting aside the election.
In Objection 1, the Petitioner contends that the Em-
ployer engaged in objectionable conduct when Supervi-
sor Mike Lamey observed Union Organizer Thomas dis-
tributing union fliers to employees as they entered the
facility’s parking lot a few weeks prior to the election
and then questioned employee Eagan “about” the hand-
bill he had received from Thomas as Eagan entered the
facility. The hearing officer sustained the objection,
finding that by observing Eagan accepting the flier and
then interrogating him about it, Lamey “‘crossed the
threshold’ from the permissible act of watching Thomas
handbilling to the impermissible act of surveillance in
violation of Section 8(a)(1) of the Act.”
In Objection 3, the Petitioner asserts that the Employer
provided an Excelsior list with inaccurate addresses. The
hearing officer found that the addresses of 13 of the 58
employees on the list provided by the Employer were
incorrect. Thus, the Employer provided incorrect ad-
dresses for 22.41 percent of the employees on the Excel-
sior list.3 There is no evidence or contention that any
eligible voter’s name was omitted from the list. The Pe-
titioner did not advise the Employer or the Board that the
Excelsior list was deficient prior to the election. Never-
1 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
2 The majority finds it unnecessary to pass on Petitioner’s Objections
1 and 9. For the reasons set forth below, I would also overrule those
objections.
3 The Petitioner was able to find correct addresses for 7 of the 13
employees prior to the election, but was unable to locate or contact the
remaining 6 employees.
MERCHANTS TRANSFER CO. 1167
theless, the hearing officer found that the Employer acted
in a “grossly negligent manner” in preparing the Excel-
sior list because the Employer knew that many addresses
on the list were inaccurate but made no effort to correct
the known inaccuracies.
In Objection 9, the Petitioner claims that the Employer
engaged in objectionable conduct by withholding infor-
mation on employee Debbie Tanner’s employment
status. Tanner was one of the employees listed on the
Excelsior list furnished by the Employer. About a week
before the election, which was held on May 27, 1999,
Tanner took a leave of absence to care for her sick father
in Georgia.
On May 26, Tanner requested an extended leave of ab-
sence, which was denied.4 During the preelection con-
ference the next day, the Petitioner asked if there were
any changes to the Excelsior list and the Employer re-
sponded that there were no changes. During the second,
and final, voting session, the Petitioner’s observer asked
the Employer’s observer if Tanner would return to work
and vote, and the Employer’s observer told him that
Tanner had called in a week and a half ago and said she
was not coming back. The hearing officer found that,
while these facts were not very troubling when viewed in
isolation, they provided further support for the conclu-
sion that the Employer was grossly negligent in the man-
ner in which it assembled the Excelsior list.
The Majority’s Decision
As noted above, the majority does not pass on Objec-
tions 1 and 9. With regard to Objection 3, the majority
concludes, without discussion or citation to any author-
ity, that the Employer’s failure to verify and correct the
addresses on the Excelsior list demonstrates gross negli-
gence or bad faith on the part of the Employer and estab-
lishes that the Employer did not comply with the Excel-
sior rule. The majority asserts that it is immaterial that
the Petitioner did not alert the Employer or the Board to
the problems with the inaccurate addresses because the
Employer knew that the addresses were inaccurate. They
therefore set aside the election.
Analysis
Objection 1
Contrary to the hearing officer, the evidence adduced
at the hearing does not establish that the Employer en-
gaged in surveillance of employees’ union activities. As
the hearing officer correctly recognized, an employer
does not engage in objectionable conduct merely by ob-
serving open and public handbilling at or near its prem-
ises. See, e.g., Roadway Package Systems, 302 NLRB
961 (1991); Chemtronics, Inc., 236 NLRB 178 (1978),
enfd. 98 LRRM 1559 (2d Cir. 1979) (unpublished deci-

4 The Employer’s president and owner, Thomas Taul, told Tanner on
May 26 that she no longer had a job but that the Employer would con-
sider rehiring her.
sion), supplemental decision 250 NLRB 17 (1980). The
hearing officer apparently found that Lamey’s observa-
tion of the handbilling was objectionable because he also
questioned employee Eagan about the handbill he had
received. However, it is well settled that not every “in-
stance of casual questioning concerning union sympa-
thies violates the Act.” Rossmore House, 269 NLRB
1176, 1177 (1984), affd. 760 F.2d 1006 (9th Cir. 1985)
(quoting Graham Architectural Products v. NLRB, 697
F.2d 534, 541 (3d Cir. 1983)). Instead, the Board em-
ploys “a case-by-case analysis which takes into account
the circumstances surrounding an alleged interrogation
and does not ignore the reality of the workplace.”
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).5
Consistent with the foregoing principles, there is no
basis for finding that Lamey’s questioning Eagan about
the prounion flier was objectionable conduct unless the
surrounding circumstances establish that Lamey’s ac-
tions reasonably tend to interfere with employees’ free
and uncoerced choice in the election. However, there is
no record evidence concerning those circumstances in
this case. The sole evidence in the record concerning
Lamey’s questioning of Eagan is as follows:

HEARING OFFICER: Did [Supervisor Lamey]
question you about the handout?
EAGAN: Yes, sir.
HEARING OFFICER: When?
EAGAN: When I came up the steps.
HEARING OFFICER: What did he say?
EMPLOYER’S ATTORNEY: Once again, we don’t
have an interrogation charge here.
HEARING OFFICER: Yes, I know that, but—was
that the only time he questioned you about the hand-
bill?
EAGAN: Yes, sir.
HEARING OFFICER: And, sure enough, we don’t
have that on the record. That’s not an objection that
has been raised.6

In the absence of record evidence describing what
Lamey said to Eagan, there is no factual basis for a find-
ing that Lamey engaged in objectionable conduct.7
5 See generally my concurring opinion in Randell Warehouse of Ari-
zona, 328 NLRB 1034 (1999).
6 In light of the hearing officer’s somewhat cryptic response to the
Employer’s objection to the taking of evidence concerning the alleged
interrogation, it is not clear that this matter is even properly before us.
However, I find it unnecessary to pass on that issue as I would in any
event overrule the objection.
7 Flexsteel Industries, 311 NLRB 257 (1993); and Carry Cos., 311
NLRB 1058, 1072–1073 (1993), enfd. in pertinent part 30 F.3d 922
(7th Cir. 1994), cited by the hearing officer in support of his finding
that the Employer engaged in objectionable conduct, are plainly distin-
guishable as in both of those cases there was record evidence concern-
ing the questions asked of the employee, including evidence that the
threats were accompanied by statements found by the Board to consti-
tute unlawful threats of reprisal. No such evidence is present in this
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
Objections 3 and 9
In Excelsior Underwear, supra, 156 NLRB at 1236,
1239–1240, the Board established the rule that an em-
ployer “must file with the Regional Director an election
eligibility list, containing the names and addresses of all
the eligible voters. The Regional Director, in turn, shall
make this information available to all parties in the case.”
The purpose of the rule is two-fold: “(1) to insure an
informed electorate by affording all parties an equal op-
portunity to communicate with eligible employees, and
(2) to expedite the resolution of questions of representa-
tion by minimizing challenges solely on lack of knowl-
edge as to the voter’s identity.” Women in Crisis Coun-
seling, 312 NLRB 589 (1993).
It is well settled that the Excelsior rule “will not be ap-
plied mechanically.” Women in Crisis Counseling, su-
pra, 312 NLRB at 589. See also Telonic Industries, 173
NLRB 588 (1969); Program Aids Co., 163 NLRB 145,
146 (1967). Moreover, the Board has recognized that the
omission of an eligible voter’s name from the Excelsior
list is more serious than inaccuracies in addresses, as in
Women in Crisis Counseling, supra at 589:

A party that is unaware of an employee’s name suffer-
san obvious and pronounced disadvantage in commu-
nicating with that person by any means and in assessing
prior to the election whether that person is eligible to
vote. A party with an employee’s name but an inaccu-
rate address at least has a key piece of information
which can be used to identify and communicate with
the person by means other than mail. Moreover, the
Board’s greater tolerance of address inaccuracies in
Excelsior lists reflects a pragmatic recognition that an
employer reasonably should know the names of em-
ployees in its current work force but may be less able,
without prompt disclosure from the employees them-
selves, to maintain a completely accurate list of their
current addresses.

Applying these principles, it is evident that the Employer
has complied with its obligation under the Excelsior rule.
As noted above, 22 percent of the addresses on the list pro-
vided by the Employer were shown to be inaccurate. No
names of eligible voters were omitted. The Board has con-
sistently found that inaccurate addresses of the character
presented in this case are insufficient to establish that an
employer has not complied with the Excelsior rule. See
Women in Crisis Counseling, supra (30-percent inaccuracy
rate in addresses not objectionable); West Coast Meat Pack-
ing Co., 195 NLRB 37 (1972) (inaccuracies in 22 percent of
addresses not objectionable).
The majority apparently seeks to distinguish these
precedents by finding that the Employer is guilty of
“gross negligence or bad faith” because it knew that at
least some of the addresses were inaccurate but failed to
update and correct that list. However, the Board has pre-
viously rejected precisely the position advanced by the
majority today. Lobster House, 186 NLRB 148 (1970),
the employer produced an Excelsior list in which 16 of
97 addresses were inaccurate.8 The Regional Director
found that the employer had failed to exercise “due dili-
gence” in the preparation of the list because,

[A]lthough the list was taken from records which the
Employer kept in the ordinary course of business [at its
central office], the Employer was well aware that those
records might be incorrect and that it had other records
readily available, namely, the records kept at the restau-
rant, which it knew to be more up to date. [Id at 150.]

The Board, however, squarely rejected the Regional
Director’s conclusion, holding that,

[W]hile the Employer may have been negligent in not
supplying address changes it apparently received be-
fore the election, it was not grossly negligent. Nor do
we believe that, in the context of this case, its failure
may be attributed to bad faith. Except for the two
clerical errors and the failure to provide two zip codes,
which we do not find meaningful, the Employer fur-
nished its latest, best list. We shall overrule the objec-
tion. [Id. at 148–149.]

The Board has consistently followed the principle that
an employer does not engage in objectionable conduct
when it provides “its latest, best list” in other cases as
well. Thus, in Singer Co., 175 NLRB 211, 212 (1969),
the Board overruled an Excelsior list objection based on
the number of inaccurate addresses where, as here, “It is
not alleged, nor does the record indicate, that the Em-
ployer provided the Petitioner with addresses which were
less accurate than it used for its own purposes . . . the
original Excelsior list provided information comparable
to that available to, and utilized by, the Employer.” See
also Bear Truss, Inc., 325 NLRB 1162, 1164 (1998) (no
objectionable conduct where employer furnished “the
most recent and best possible information it possessed as
to employee names and addresses”); Women in Crisis
Counseling, supra (no evidence or contention that inac-
curate addresses were the result of bad faith or gross neg-
ligence where “[t]he Employer obtained the addresses
from its personnel files”). The majority provides no jus-
tification for its disregard of well-established precedent
in this case.
The clear import of these cases is that the Excelsior
rule does not require an employer to do more than pro-
vide the information contained in its records. Until to-
day, the Board has not held that an employer engages in
objectionable conduct by failing, under any circum-

8 Twelve of the sixteen inaccurate addresses were due to employees
having moved after their initial employment, two were due to clerical
errors, and two were deemed inaccurate because the employer omitted
the zip codes (which would have allowed for identification of the mu-
nicipality in which the given street address was located).
MERCHANTS TRANSFER CO. 1169
stances, to investigate its employee address records to
insure that they are up to date. To the contrary, the
Board has rejected the position that an employer “is obli-
gated to investigate and secure additional information.”
Dr. David M. Brotman Memorial Hospital, 217 NLRB
558, 559 (1975) (no objectionable conduct where em-
ployer failed to provide corrected addresses in its posses-
sion despite Board agent’s request that it do so).9 See
also Days Inns, 216 NLRB 384, 385 (1975) (fact that
employer’s personnel files were scattered and chaotic
“are factors we must consider in assessing the Em-
ployer’s compliance with our [Excelsior] rule”); Texas
Christian University, 220 NLRB 396, 398 (1975) (re-
versing hearing officer’s conclusion that employer en-
gaged in objectionable conduct by failing “to make all
possible efforts to correct the list”).
Consistent with these principles, and contrary to the
majority, the Board has overruled Excelsior list objec-
tions in cases where the employer admittedly knew that
the list contained inaccurate addresses,10 and it has
reached the same result regardless of whether the em-
ployer used the mailing list for its own purposes.11 The
majority’s failure to cite to a single case in which the
Board has set aside an election on facts even remotely
similar to those in this case is itself a damning admission
that they are overruling, sub silentio, precedent of 30
years standing by their decision today.

9 In Dr. David M. Brotman Memorial Hospital, the employer’s
original Excelsior list included 117 incorrect addresses out of 967 em-
ployees included in the list—an error rate of 12 percent. Subsequently,
the employer obtained 20 address corrections (which comprised 2 per-
cent of the eligible voters) but refused to provide them to the Region
even after being requested to do so. The Board held that even under
these circumstances, the employer’s conduct did not warrant setting
aside the election. In so doing, the Board also stated that, while the
employer should have provided the updated information in its posses-
sion upon the specific request by the Board agent, it was “not holding
that the Employer is obligated to investigate and secure additional
information.” Yet, that is precisely what the majority today holds, in
effect, that the Employer in this case was required to do so.
10 Lobster House, supra (employer knew list contained inaccurate
addresses and did not use it for its own purposes); Singer, supra (em-
ployer knew that addresses were inaccurate as mail sent to its employ-
ees was “customarily” returned as undeliverable).
Significantly, the Board in Lobster House found that the employer
was “well aware that those records might be incorrect” and that it did
have other records available “which it knew to be more up to date.”
186 NLRB at 150. Nevertheless, the Board declined to set aside the
election. The majority, ignoring the teachings of Lobster House and
Dr. David M. Brotman Memorial Hospital, relies on precisely these
facts as the basis for setting aside this election.
The majority asserts that Singer is distinguishable because the em-
ployer there used the addresses to communicate with the employees
while the Employer here did not. My colleagues cite no precedent, and
provide no justification, for their holding that an employer who pro-
vides the only address information in its records, knowing that the
addresses are inaccurate, may avoid a finding that it violated the Excel-
sior rule simply by sending its own mailing to those addresses, but is
somehow guilty of “bad faith and gross negligence” if it does not.
11 Id.
Gravure Packaging, 321 NLRB 1296, 1311–1312
(1996), enfd. mem. 116 F.3d 941 (D.C. Cir. 1997), cited
by the hearing officer in support of his finding that the
Employer engaged in objectionable conduct, is wholly
inapposite. As the Board’s decision makes clear, the sole
basis for finding that the employer there had failed to
comply with the Excelsior rule was the employer’s pro-
vision of only employees’ last names and first initials,
although its records included the employees’ full
names.12 Here, there is no evidence that the Employer
failed to provide the full name of any employee. More-
over, as discussed above, the Employer did not deliber-
ately omit any information from the Excelsior list; in-
stead, it provided the only addresses it had.13
Turning to Objection 9, the Employer’s failure to ad-
vise the Petitioner at the preelection hearing that Tanner
was no longer in its employ likewise provides no basis
for overturning the results of the election, and I note that
the majority does not contend otherwise. The hearing
officer concluded that the Employer’s actions were in-
dicative of the “grossly negligent” manner in which it
assembled the Excelsior list. In reaching this conclusion,
the hearing officer ignores the fact that the Excelsior list
had already been prepared and submitted by the time
Tanner’s employment status changed. While the coop-
eration of all parties to an election in providing notice of
any changes affecting voter eligibility at the preelection
conference is, of course, to be encouraged, there is no
warrant for setting aside an election solely on the basis of
a failure to do so, at least in the absence of any showing
of prejudice to a party to the election. No such showing
has been made in this case.
Conclusion
For the foregoing reasons, I would overrule the Peti-
tioner’s objections and certify the results of the election.
12 See North Macon Health Care Facility, 315 NLRB 359 (1994)
(no substantial compliance with Excelsior rule where employer deliber-
ately omitted employees’ first names in preparing Excelsior list).
13 In Laidlaw Medical Transportation, 326 NLRB 925 (1998), a
panel majority found that the Employer engaged in objectionable con-
duct when it disregarded a request for an “updated mailing list” after
being advised that its original Excelsior list contained numerous errors.
I find it unnecessary to pass on whether Laidlaw was correctly decided
on its facts, as the Petitioner here failed to protest the incorrect ad-
dresses, or to request a corrected list, prior to the election. Compare
Bear Truss, Inc., supra at 1162 (noting that employer’s cooperation in
furnishing legible copy of Excelsior list, after being requested to do so,
“is to be encouraged, and is an indication that the Employer was not
acting in bad faith when it submitted its original list”).