North Macon Health Care Facility

National Labor Relations Board - Board Decisions

Oct 26, 1994

315 N.L.R.B. 359 (N.L.R.B. 1994)

359
315 NLRB No. 50
NORTH MACON HEALTH CARE FACILITY
1 During the course of the hearing, the Employer objected to the
hearing officer’s evidentiary rulings admitting into evidence P. Exh.
1 (a copy of the Excelsior list with annotations showing which of
the addresses on the list were incorrect) and refusing to admit Emp.
Exh. 1 (certain reports prepared by Petitioner after unsuccessful at-
tempts to contact employees at the home addresses shown on the Ex-
celsior list). However, we find that these issues are not properly be-
fore us, as the Employer has not filed exceptions to the hearing offi-
cer’s rulings in this regard. Although the Employer notes in its brief
that it filed motions for special permission to appeal these issues, the
motions were denied on the grounds that the hearing officer’s report
had issued while the motions were pending, and the Employer was
specifically advised that the appeals ‘‘are denied without prejudice
to your renewing your arguments in appropriately filed exceptions.’’
Nevertheless, the Employer did not file exceptions with the Board.
2 Excelsior Underwear, 156 NLRB 1236 (1966).
3 With respect to the number of incorrect addresses, the hearing of-
ficer noted that the list was based on the Employer’s most recent
records and that the Employer seldom had occasion to send mail to
its employees.
4 Chairman Gould and Member Devaney would find also that the
election should be set aside because of the large number of incorrect
employee addresses on the Excelsior list submiitted by the Em-
ployer. Member Stephens finds it unnecessary to reach this issue.
North Macon Health Care Facility and United
Steelworkers of America, AFL–CIO. Case 10–
RC–14442
October 26, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, AND COHEN
The National Labor Relations Board has considered
objections to an election held December 8, 1993, and
the hearing officer’s report recommending disposition
of them (pertinent portions of which are attached as an
appendix). The election was conducted pursuant to a
Stipulated Election Agreement, and the tally of ballots
shows that of approximately 143 eligible voters, 57
cast valid votes for the Petitioner and 71 cast votes
against the Petitioner. There were six challenged bal-
lots, a number insufficient to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs and adopts the hearing officer’s
findings and recommendations only to the extent con-
sistent with this decision.1
In Objection 10, the Petitioner contends that the Em-
ployer provided a ‘‘substantial number of incorrect and
incomplete addresses for the eligible voters and re-
fused to supply complete names of voters, thereby vio-
lating the intent of the Excelsior2 rules which give[]
the union an opportunity to communicate with eligible
voters prior to the election. This act . . . destroys the
laboratory conditions necessary for a free and fair elec-
tion.’’
The hearing officer found that the Employer pro-
vided a list of eligible voters containing 33 incorrect
addresses and with employees’ last names and first ini-
tials rather than their full names. In support of its ob-
jection, the Petitioner produced the Excelsior list pro-
vided by the Employer. The Employer submitted its
own copy of the Excelsior list and a copy of the com-
puter-generated payroll records of the unit employees
provided it by a management corporation and based on
the Employer’s records. The payroll records included
employees’ addresses and full first and last names. On
the Excelsior list it provided the Union, however, the
Employer had deleted the employees’ first names and
supplied only the first letter of the employees’ given
names. Further, nearly 23 percent of the addresses on
the Excelsior list, or 33 out of 144, were incorrect.
The hearing officer recommended that the Petition-
er’s objection be overruled, noting that the Board has
held that it will not apply the Excelsior rule ‘‘mechani-
cally’’ to set an election aside on the basis of an im-
perfect list, in the absence of an employer’s deliberate
or grossly negligent attempt to avoid compliance with
the Excelsior rule. The hearing officer found no evi-
dence of such gross negligence or bad faith. With re-
spect to the Employer’s use of initials rather than first
names, the hearing officer found that, although the
Board does not condone the practice, this shortcoming
does not rise to the level of a substantial failure to
comply with the rule’s requirements.3
In its exceptions, the Petitioner argues, in essence,
that the Board’s policy of not applying the Excelsior
rule ‘‘mechanically’’ has allowed exceptions to its
strict application effectively to erode the rule, that the
spirit of the rule is violated where nearly 25 percent
of the addresses provided are incorrect and the full
names of employees are not supplied, and that no
means other than an accurate Excelsior list exist
whereby a petitioner can obtain such information.
For the reasons stated below, we find merit in the
Petitioner’s objections with respect to the Employer’s
failure to include employees’ first names on the Excel-
sior list. Therefore, we set aside the election and order
that a second election be scheduled.4 Further, we hold
that an employer’s failure to provide the full first and
last names of employees is a deviation from the
Board’s policy that an employer must ‘‘substantially
comply’’ with the Excelsior rule and tends to interfere
with a free and fair election. Although bad faith is
generally not relevant in this area, under the particular
circumstances of this case, we also find that the Em-
ployer’s deliberate deletion of the unit employees’ first
names from the list provided by its management com-
pany is evidence of a bad-faith effort to impede the
Petitioner’s access to eligible voters and thus to avoid
its responsibilities under Excelsior.
Our analysis begins with the Board’s holding in Ex-
celsior itself. In that case, the Board determined that
objections based on the employers’ denial of the peti-
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 156 NLRB at 1240 (emphasis added and citations omitted).
6 Id. (emphasis added and citations omitted).
7 Id. This consideration has taken on even greater significance in
light of the Supreme Court’s recent decision in Lechmere, Inc. v.
NLRB, 502 U.S. 527 (1992), in which the Supreme Court strictly in-
terpreted NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), to
limit further organizers’ access to company property.
8 Excelsior, 156 NLRB at 1241.
9 Id. (emphasis in original). Thus, the fact that, as the hearing offi-
cer found, the Petitioner here was ultimately able to make contact
with all but 12 of the employees is irrelevant.
10 Id. at 1243 (citations omitted).
11 Id. at 1244.
tioners’ requests for the names and addresses of eligi-
ble voters raised grave questions respecting the admin-
istration of the Act. In response, the Board established
a requirement that will be applied in all election
cases. That is, within 7 days [after the approval
of an election agreement or the direction of an
election], an employer 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 infor-
mation available to all parties in the case. Failure
to comply with this requirement shall be grounds
for setting aside the election whenever proper ob-
jections are filed.5
The Board reasoned that the new rule was based on
two fundamental bases: first, its recognition that Con-
gress had entrusted to the Board alone the function of
conducting elections
free from interference, restraint, or coercion . . .
[and] other elements that prevent or impede a free
and reasoned choice. Among the factors that un-
doubtedly tend to impede such a choice is a lack
of information with respect to one of the choices
available. . . . [A]n employee who has had an ef-
fective opportunity to hear the arguments con-
cerning representation is in a better position to
make a more fully informed and reasonable
choice. Accordingly, we think that it is appro-
priate for us to remove the impediment to com-
munication to which our new rule is directed.6
Second, the Board also perceived an intensely prac-
tical necessity for the new rule. It contrasted the situa-
tion of the employer, which is assured of continuing
opportunities to present its views respecting unioniza-
tion to employees to that of a petitioner, ‘‘whose orga-
nizers normally have no right of access to plant prem-
ises,’’7 and therefore has no method by which it can
be sure of reaching employees with its arguments in
favor of representation, so that some employees might
be unaware of them. The Board’s express aim in pro-
mulgating the Excelsior rule was to ensure, as far as
possible, that all employees be ‘‘exposed to the argu-
ments for, as well as against, union representation.’’8
The fact that unions might, by expending resources
and energy in other ways, gain access to some, or even
most, employees, was not sufficient; the Board explic-
itly discounted the availability of alternative means of
communication with employees as a factor weighing
against the requirement that employers provide a list of
the names and addresses of eligible voters:
This is not, of course, to deny the existence of
various means by which a party might be able to
communicate with a substantial portion of the
electorate even without possessing their names
and addresses. It is rather to say what seems to
us obvious—that the access of all employees to
such communications can be insured only if all
parties have the names and addresses of all the
voters.9
Nor was the Board moved by the arguments that re-
quiring employers to provide such a list would be bur-
densome or would infringe on any employer rights.
Rather, the Board reasoned:
The arguments against imposing a requirement of
disclosure are of little force especially when
weighed against the benefits resulting therefrom.
Initially, we are able to perceive no substantial in-
fringement of employer interests that would flow
from such a requirement. A list of employee
names and addresses is not like a customer list,
and an employer would appear to have no signifi-
cant interest in keeping the names and addresses
of his employees secret (other than a desire to
prevent the union from communicating with his
employees—an interest we see no reason to pro-
tect). Such legitimate interest in secrecy as an em-
ployer may have is, in any event, plainly out-
weighed by the substantial public interest in favor
of disclosure where, as here, disclosure is a key
factor in insuring a fair and free electorate.10
The Board also rejected the argument that provision of
employee names and addresses infringed on any rights
of employees, e.g., their Section 7 right to refrain from
union activities. The Board found that the Section 7
rights were exercised when the employee voted for or
against union representation.11
The interpretation of the Excelsior rule adopted by
the Board today with respect to employees’ names de-
rives from the Board’s emphasis on the fundamental
importance of the rule to a reasoned exercise of the
Section 7 right and of the fundamentally practical na-
ture of the rule. The Excelsior rule was not promul-
gated to test employer good faith, to augment other
means of communication, or merely to ‘‘level the play-
ing field’’ between petitioners and employers. It was
imposed so that unions would have access to all eligi-
ble voters. As the Board stated, the prompt and com-
361NORTH MACON HEALTH CARE FACILITY
12 Id. at 1242.
13 Thrifty Auto Parts, 295 NLRB 1118, 1118 (1989).
14 Accordingly, we overrule the contrary holdings in St. Francis
Hospital, 249 NLRB 180, 181 (1980), and other similar cases.
15 In this case, for example, the Employer admittedly maintains
lists of employees which include their first names; indeed, in the
first election the Employer voluntarily assumed the burden of gener-
ating an additional list of employees for production to the Union
from which first names had been redacted.
16 In this case, the first election was conducted, by agreement of
the Employer, on its premises during two 2-hour periods on Decem-
ber 8, 1993.
17 We note that the language of the Direction of Second Election
has been revised to reflect our holding here. We further direct that
the Excelsior language set forth below, together with a citation to
this decision, shall be used in all future election cases.
plete disclosure of employee names and addresses is
‘‘necessary to insure an informed electorate.’’12 Under
Excelsior, an employer’s failure to provide a complete
and accurate list of eligible voters is an injury to em-
ployees, not just to petitioners; an incomplete or inac-
curate list can effectively prevent employees from ob-
taining information necessary for the free and fully in-
formed exercise of their Section 7 rights. The Board
has long recognized that the rule is prophylactic, so
that ‘‘[e]vidence of bad faith and actual prejudice is
unnecessary because . . . the potential harm from list
omissions is deemed sufficiently great to warrant a
strict rule that encourages conscientious efforts to com-
ply.’’13
Thus, we find that, in ruling that employers must
provide the names and addresses of eligible voters, the
Board intended that employers provide the employees’
full names. There is no language in the Excelsior deci-
sion that even suggests that an employer has
‘‘substantial[ly] compli[ed]’’ with the rule where the
employer has deliberately deleted the employees’ first
names in working up the Excelsior list from its payroll
or other records. Consequently, we find that the Em-
ployer here was not in ‘‘substantial compliance’’ with
the Excelsior rule, and we clarify the ‘‘substantial
compliance’’ standard accordingly. Further, although,
as noted above, a finding of bad faith is not a pre-
condition for the conclusion that an employer has
failed to comply substantially with the rule, we shall
view the submission of an Excelsior list containing
only last names and first initials as evidence of a bad-
faith effort to avoid the obligations the Excelsior rule
imposes.14
We further find that, based on our administrative ex-
perience in the area of representation elections, retro-
active application of our clarification of the Excelsior
rule will further the purposes of the Act. See Deluxe
Metal Furniture Co., 121 NLRB 995, 1006–1007
(1958) (‘‘the judicial practice of applying each pro-
nouncement of a rule of law to the case in which the
issue arises and to all pending cases in whatever stage
is traditional and, we believe, the wiser course to fol-
low’’). See also Iron Workers Local 3 v. NLRB, 843
F.2d 770 (3d Cir. 1988) (per curiam) (approving retro-
active application of Deklewa rules regarding 8(f) col-
lective-bargaining agreements), enfg. John Deklewa &
Sons, 282 NLRB 1375 (1987), cert. denied 488 U.S.
889 (1988).
Contrary to our dissenting colleague, we find no cir-
cumstances here sufficient to overcome the Board’s
presumption in favor of retroactivity. As discussed
above, application of the rule that an Excelsior list
must include employees’ full names serves important
statutory goals by ensuring that all employees are fully
informed about the arguments concerning representa-
tion. It would be anomalous for the Board to certify
results of elections conducted without compliance with
the Excelsior rule as set forth herein, after the Board
has found that such elections do not ensure that em-
ployees are fully informed about the arguments con-
cerning representation and thus are not able to exercise
fully their Section 7 rights.
Nor do we agree with our dissenting colleague’s ar-
gument that employers would be prejudiced by the ret-
roactive application of our holding. In practical terms,
retroactive application will require that a second elec-
tion be held, and that the employer provide an Excel-
sior list containing full names prior to that election.
Any burden imposed on the employer by this require-
ment is extremely slight. Thus, there is no indication
that preparation of a list of employees which includes
their full names will require employers to expend any
additional time or effort.15 Nor do we perceive any
significant burden resulting from the mechanics of
holding a second election. Athough many employers
accommodate Board elections by allowing them to be
conducted on the employer’s premises and by releasing
employees from duty for appropriate periods of time so
that they may vote, such accommodations involve at
most a minimal burden and in any event are, of course,
voluntarily assumed.16
Although it is true that a second election may result
in a certification of representative, whereas the first
election did not, we decline to find prejudice to em-
ployers on that basis. Any certification of representa-
tive that may result from the holding of a second elec-
tion would occur only if a majority of unit employees
currently desire representation. It would be inconsistent
with the Act’s animating principles to find that an em-
ployer is prejudiced by the Board’s recognition of em-
ployee choice under these circumstances.
Thus, the Board finds that the election must be set
aside and a new election directed.
[Direction of Second Election omitted from publica-
tion.]17
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 St. Francis Hospital, 249 NLRB 180 (1980). As that case made
clear, the fact that the employer’s records contained full names did
not warrant a contrary result.
2 Although Chairman Gould and Member Devaney would set aside
the election on the additional basis of incorrect addresses, there is
no Board majority for so doing. With respect to this issue, the hear-
ing officer ruled, with appropriate case citations, that the incorrect
addresses were insufficient to warrant setting aside the election. I
would adopt this ruling. Thus, this dissent focuses on the ‘‘name’’
issue.
3 A change could also have been accomplished by rule-making
under Sec. 6 of the Act. Such a rule would, of course, operate pro-
spectively.
4 My colleagues assert that retroactivity will result only in a sec-
ond election. However, the fact is that my colleagues take away
from the Employer and employees a certification of the Petitioner’s
loss, and deprive the Employer and employees of 1 year’s repose
from the conduct of an election. See Sec. 9(c)(3).
MEMBER COHEN, dissenting.
My colleagues have made a change in the law and
in established practice, and they have applied the
change retroactively. In my view, assuming that the
change is warranted—an issue that I do not reach in
this case—this retroactive application is fundamentally
unfair to the Employer who relied on then-extant law
and practice. Accordingly, I dissent.
The Supreme Court has set forth three factors to be
considered in determining the legality of a retroactive
application of a change in law. Chevron Oil Co. v.
Huson, 404 U.S. 97 (1971). These factors are: (1)
whether the decision that is to be applied retroactively
establishes a new principle of law, either by overruling
clear past precedent on which litigants may have relied
or by deciding an issue of first impression; (2) the ef-
fect of retroactivity on accomplishing statutory objec-
tives; and (3) the inequity imposed by retroactive ap-
plication.
With respect to the first factor, the law was clear
that an employer complied with Excelsior requirements
even if the employer gave only first initials and last
names of employees, rather than full names.1 Indeed,
my colleagues candidly concede that ‘‘the contrary
holdings in St. Francis’’ are to be ‘‘overruled.’’ Thus,
the law was clear, and it is being changed.
With respect to the second factor, I do not believe
that a ‘‘full name’’ requirement is a necessary ingredi-
ent for the accomplishment of a statutory purpose. My
colleagues assert that a ‘‘full name’’ requirement will
give unions greater access to employees and will result
in a better-informed electorate. Assuming arguendo
that the new requirement will help to achieve these
goals, this is not to say that the statutory purpose has
been unfulfilled in the past. There is no showing that
the prior rule led to the destruction of ‘‘laboratory con-
ditions’’ for the conduct of elections. Indeed, the
Board has conducted elections, without the ‘‘full
name’’ requirement, for 28 years under Excelsior.
There is no suggestion that these elections have been
invalid, i.e., that they have not been held under labora-
tory conditions.
Finally, as to the third factor, the imposition of the
new rule is patently unfair to the Employer. The Em-
ployer relied on then-extant law, and the Petitioner lost
the election. My colleagues now change the law and
take that result away.2 Moreover, my experience com-
pels the conclusion that the Employer’s failure to in-
clude full names was in no way determinative of the
outcome of the election. Thus, even if my colleagues
wish to impose a ‘‘full name’’ requirement, there is no
reason to upset the election here. If my colleagues
wish, as a matter of policy, to change the Excelsior
rule by requiring full names, they could accomplish
that change by other means. For example, in Shepard
Convention Services, 314 NLRB 689 fn. 3 (1994), my
colleagues denied as premature a preelection challenge
to the use of initials. They could have simply included
a ‘‘full name’’ requirement in their preelection order.3
Instead, they now overturn an accomplished election
result and put the parties and employees through an-
other election.4 I therefore dissent.
APPENDIX
(Hearing Officer’s Report on Objections and
Recommendation on Objections)
FINDING OF FACTS AND CONCLUSIONS
Objection 10:
During the period following the filing of the petition
and until the election, the Employer provided a substan-
tial number of incorrect and incomplete addresses for
the eligible voters and refused to supply complete
names of voters, thereby violating the intent of the Ex-
celsior rules which gives the union an opportunity to
communicate with eligible voters prior to the election.
This act further destroys the laboratory conditions nec-
essary for a free and fair election.
The issue, herein, is not controlled by credibility findings.
Indeed, the relevant facts are not in dispute. Rather, the reso-
lution of this issue is one controlled by Board law. In sup-
port of this objection, the Petitioner submitted the Excelsior
list, provided by the Employer, as Petitioner’s Exhibit 1. It
is undisputed that the Employer used initials for the employ-
ees’ given names. The Petitioner noted that of the 144 ad-
dresses provided thereon, a total of 33 were incorrect. In fur-
ther support thereof, the Petitioner supplied copies of 19 re-
turned envelopes, returned by the post office due to a variety
of reasons, namely, insufficient address, not deliverable as
addressed, no forwarding address and ‘‘attempt not known’’
(in evidence as P. Exh. 2). The addresses on the 19 returned
envelopes were taken from the list. The 19 returned enve-
lopes are part of the 33 incorrect addresses in contention,
herein, and not in addition thereto. A review of Petitioner’s
Exhibit 2 reveals that at least 9 of the documents were not
mailed to the employees until well after the election. The re-
maining 10 were mailed and returned by the post office, or
363NORTH MACON HEALTH CARE FACILITY
3 As provided in the Regional Director’s Order Directing Hearing
and Notice of Hearing either party may, within 14 days from the
issuance of this report, file with the Board an original and 7 copies
of exceptions. Immediately upon filing such exceptions, the party fil-
ing the same shall serve a copy with the Regional Director. If no
timely exceptions are filed, the Board may adopt the recommenda-
tion of the Report.
about December 1 and 4, 1993. Organizer Randal Rolen tes-
tified that the Petitioner made house calls to employees,
based on the addresses provided on the list. According to
Rolen, in several instances, the addresses did not exist or in-
dividuals other than the named employees lived at the ad-
dresses. According to Rolen, in some cases the individuals
claimed to have resided at the address for extended periods
of time. Additionally, Rolen tesified that in several instances,
addresses failed to include apartment numbers, further hin-
dering the location of employees. Finally, Rolen testified
that, while 33 of the addresses provided were incorrect he
was able to make contact with all but 2l of the employees
on the list, prior to the election.
The Employer submitted a copy of the Excelsior list as
Employer’s Exhibit 46. This document is the same as Peti-
tioner’s Exhibit 1, with the exception of the Petitioner’s
typed written notations regarding the incorrect addresses. The
Employer also submitted a copy of the computer generated
payroll records of all employees, including addresses depart-
ment numbers (Emp. Exh. 47). According to Administrator
Doreen Hansard, the payroll listing was compiled by the Em-
ployer’s payroll department. Pruitt Corporation is responsible
for managing the Employer’s facility, including handling
payroll matters. The addresses on the list were based on the
payroll list provided to the Employer by Pruitt Corporation.
An examination of Petitioner’s Exhibit 1 and Employer’s Ex-
hibit 46 reflect identical addresses. The payroll records, how-
ever, included the given names. In each instance, however,
the initials on the Excelsior list correspond with the given
names and addresses on the payroll records. According to
Hansard, these are the same addresses used by the Employer
during the campaign. Hansard also testified that normally,
the Employer does not have a need to send mail of any kind
to its employees.
The Board has repeatedly held that the rule, set forth in
Excelsior Underwear, Inc., 156 NLRB 1236 (1966), will not
be mechnically applied where there is evidence that the em-
ployer has ‘‘made some attempt’’ to comply with the re-
quirements thereof. Indeed, there must be evidence indicating
a deliberate or grossly negligent attempt to avoid compliance
with the rule, not merely the existence of an imperfect list,
before an election will be set aside. The Board does not
deem an insubstantial failure to comply with the Excelsior
rule to be tantamount to gross negligence or bad faith. The
evidence, herein, established that the Employer provided the
Petitioner with the information in its files. There was no evi-
dence presented to establish that the Employer was aware of
the errors on the list or in some way acted in bad faith in
the submission thereof. To the contrary, the evidence estab-
lished that the Employer relied on the same list during the
campaign. There was evidence offered to show that the Em-
ployer routinely sent mail to its employees, thus putting the
Employer on notice of a need to correct its records. The Peti-
tioner does not contend that any names were omitted from
the list. In this regard, it should be noted that the Board has
drawn a distinction between the submission of incorrect ad-
dresses and omission of names from the list. The record evi-
dence established that due to the errors on the list, the Peti-
tioner was unable to contact 12 employees or less than 9 per-
cent. While, clearly the inaccuracies in the list were largely
the cause of the Petitioner’s inability to contact these em-
ployees, it is equally clear that current case law does not
support a finding of a substantial failure to comply. Simi-
larly, the use of initials for given names, while not condoned,
are shortcomings that do not rise to a level sufficient to war-
rant setting aside the election. Finally, the record is com-
pletely void of evidence warranting a finding of gross neg-
ligence or bad faith. Fontainebleau Hotel Corp., 181 NLRB
1134 (1970); Days Inn, 216 NLRB 384 (1975); West Coast
Meal Packing Co., 195 NLRB 37 (1972); Lobster House,
186 NLRB 148 (1970); Kentfield Medical Hospital, 219
NLRB 174 (1975). Accordingly, Objection 10 is overruled.
RECOMMENDATION
Having found Petitioner’s Objection 10 to be without
merit and having granted the Petitioner’s request to withdraw
Objection 1 through 9 and 11, I recommend to the Board
that the objections be overruled in their entirety and that a
Certification of Results issue.3