Rite-Care Poultry Co, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1970

185 N.L.R.B. 41 (N.L.R.B. 1970)

RITE-CARE POULTRY CO
Rite-Care Poultry Company , Inc. and Amalgamated
Meat Cutters & Butcher Workmen of North Amer-
ica, AFL-CIO, Petitioner . Case 15-RC-4202
August 21, 1970
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY MEMBERS FANNING, MCCULLOCH, BROWN, AND
JENKINS
On November 28, 1969, the Regional Director for
Region 15 issued his Supplemental Decision and Cer-
tification of Results of Election in the above-entitled
proceeding in which he overruled the Petitioner's
objections to conduct affecting the results of the elec-
tion.' Thereafter, pursuant to National Labor Rela-
tions Board Rules and Regulations, the Petitioner
filed a request for review of the Regional Director's
Supplemental Decision, contending, inter alia, that
he erred in overruling Objections 1 and 2 by failing
to conclude that the list of names and addresses
of eligible voters supplied by the Employer did not
comply substantially with the requirements of Excels-
ior 2 The Employer filed opposition thereto.
By telegraphic order dated February 17, 1970, the
National Labor Relations Board granted the request
for review.
The Board has considered the entire record in
this case, including the Regional Director's Supple-
mental Decision and the arguments contained in the
Petitioner's request for review and the Employer's
opposition thereto, and makes the following findings:
The Petitioner contends that the facts as found
by the Regional Director concerning Objections 1
and 2' demonstrate that the Employer failed to comply
with the requirements of Excelsior. We agree.
As found by the Regional Director, the list which
the Employer supplied for the most part provided
only the initials of forenames of employees. More
significantly, it provided only the names of the town
or city where the employees lived and, in some
instances, a route number.' Omitted from the addresses
The tally of ballots for the election showed that of approximately
289 eligible voters, 103 cast valid ballots for, and 113 against, the
Petitioner, 5 cast challenged ballots, and 2 cast void ballots
Excelsior Underwear Inc., 156 NLRB 1236
The section of the Regional Director's Supplemental Decision which
deals with Objections I and 2 is attached hereto as Appendix A
We observe that 13 pairs of individuals had the same surnames
Seven pairs of individuals had the same first initials and identical surnames
Some pairs with identical names had the same town and route number
We also observe that in at least two instances employees received mail
41
were street addresses and/or post office box numbers,
which information it appears the Employer had in
its files and in fact utilized in making its own mailings
of campaign propaganda to its employees.
Shortly after receiving the aforesaid list the Petition-
er wrote a letter to the Regional Director complaining
that the list did not contain "correct" names and
that the addresses were "incomplete" but indicated
it wished to proceed with the scheduled election,
reserving its right to file objections based on the
list. The Regional Director advised the Employer
of the Petitioner's complaint concerning the list. The
Employer made no response.
Prior to the election the Petitioner made no attempt
to use the list supplied by the Employer in mailing
campaign propaganda to employees and it advised
the Regional Director that the incomplete list was
confusing and made a correct mailing impossible.
It made one mailing to some employees using the
addresses supplied by them on their authorization
cards. However, as more fully detailed in the Regional
Director's decision, the Petitioner, to support its claim
that the list supplied by the Employer was inadequate
to reach employees by mail, used it in mailing letters
to the approximately 289 eligible voters after the
election to inform them of its intentions to file objec-
tions to conduct affecting the election results, and
55 of the letters were returned.
Upon the foregoing, we conclude that the Employer
did not comply substantially with the requirements
of Excelsior because the list of names and addresses
which it supplied did not include information available
from its files as to street addresses and/or post office
box numbers.
The Regional Director found that, although the
Employer did not furnish a complete list of names
and addresses of eligible voters, as required by
Excelsior, the Petitioner "did not use the list for
purposes which led to the Excelsior rule, but seeks to
use it as a technical reason to have an election set
aside." We do not agree.
The purposes of the Board's requirement enunciated
in Excelsior were several. The most obvious was to
remove impediments to communication. As described
more fully below, Petitioner lacked the opportunity
to communicate with allof the electorate.
Another purpose was "to facilitate early resolution
of disputes over voting eligibility."5 Still another was
"to insure accuracy and currency of the names and
addresses as it [the Employer's list] is the most reliable
source of such information."6 Even had Petitioner
from the Employer addressed with full first and last names but did
not receive the Petitioner 's mailing that did not contain their full name
' Murphy Bonded Warehouse , Inc, 180 NLRB No 29.
'Id.
185 NLRB No. 10
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained a full and correct list of names and addresses
from sources other than the Employer-which it had
not-"such a list does not carry the same assurance
of accuracy and completeness as a list obtained by
an employer from the employment records."'
We do not agree with the Regional Director's
conclusion that a more complete list based on informa-
tion contained in the Employer's files would not
have been of material benefit to the Petitioner, and
we reject his interpretation of our decisions in Singer
and Telonic Instruments.e In Singer, the petitioning
union had lost an election by a wide margin-267
votes for and 770 against representation-and the
Board concluded that a list which provided only
surnames and forename initials and had other inad-
vertent omissions but had correct addresses was in
substantial compliance with Excelsior. Here, the elec-
tion results were close and the defects in the list
were much more serious. In our view, the ommission
of available information as to street addresses and/
or post office box numbers of eligible voters is the
type of defect which can effectively remove employees
from the reach of the campaign appeals of participat-
ing labor organizations.' Indeed, here, as demonstrated
by the Petitioner's postelection mailing which was
made to test the usefulness of the Employer's list,
55 of the approximately 289 eligible voters could
not be reached.10 In Telonic Instruments the employer
had inadvertently omitted four eligibles from the
Excelsior list (two of whom the union already knew)
but supplied them before the election. The Board
referred to the fact that in cases where employers
had made some attempt to comply strictly with its
requirements, Excelsior was not mechanically applied.
The Board pointed out, however, that an inaccurate
or incomplete list may in some circumstances furnish
grounds for setting aside an election. For the reasons
above set forth, we are unable to agree with the
Regional Director that setting aside the election in
' N.LR.B v Beech-Nut Life Savers, Inc, 406 F 2d 253, 260 (CA
2)
The Singer Company, 175 NLRB No 28; Telonic Instruments, a
Division of Telonic Industries, Inc, 173 NLRB No 87
' We note particularly that this defect in a list seriously impairs
the ability of labor organizations to locate employees at the home addresses
for the purpose of making face-to-face campaign appeals Clearly, under
Excelsior, it was contemplated that the addresses should be adequate
to enable labor organizations to use the list to make such personal
appeals to employees at their homes
11 The Regional Director stated that a substantial proportion of the
55 employees who could not be reached by this mailing had provided
their addresses on authorization cards which they signed for the Petitioner
We have been advised administratively that 20 of these 55 employees
signed authorization cards The fact that as many as 35 employees
could not have been reached if the Petitioner attempted to use the
list in mailing campaign appeals indicates , in our view , that the list
was substantially defective.
the circumstances of this case would be a mechanical
application of the rule."
Finally, we reject a conclusion that Petitioner did
not need the list and therefore was not entitled to
a complete and correct one. This issue was discussed
at length in our decision in Murphy Bonded Ware-
house, Inc., supra. The considerations there set forth
are equally applicable here. For those reasons and
for the reasons stated in our Excelsior decision, we
find that there is a need in this case for an election
eligibility list containing the names and addresses
of all eligible voters, to be provided by the Employer
in accordance with the conditions set out below.
Accordingly, we hereby sustain Objections 1 and
2, and we shall order that the election be set aside
and direct a second election.
ORDER
IT IS HEREBY ORDERED that the election conducted
herein on September 12, 1969, among the employees
of Rite-Care Poultry, Inc., at its Logansport, Louisia-
na, plant be, and it hereby is, set aside.
[Direction of Second Election omitted from publica-
tion.]
" In a case such as the instant one, where the defects in the list
were serious in nature , where the Petitioner promptly brought the defects
to the attention of the Regional Director, where the Employer did
nothing to correct them, and where they have been found to have
substantially impaired the Petitioner 's ability to reach employees, we
are also unable to agree with the Regional Director's view that the
Petitioner was not prejudiced by the defects because it made no attempt
to use the list in mailing campaign appeals Indeed, any attempt on
the part of the Petitioner to use the list as a means of effectively
communicating with the electorate would have been a futile act
APPENDIX A
(EXCERPT FROM REGIONAL DIRECTOR'S
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF ELECTION)
Objections 1 and 2
These objections are combined in that they both
contend the Employer did not comply with the
requirements of the Excelsior case .' The Employer,
pursuant to the Decision and Direction of Election
issued in this matter, timely submitted an Excelsior
list to the Board's Fifteenth Regional Office on August
22, 1969. The Regional Office in turn made the
list available to the Petitioner. The Petitioner, in
1 Excelsior Underwear, Inc, 156 NLRB 1236, NLRB v Wyman-
Gordon Company 394 U.S 759
RITE-CARE POULTRY CO 43
a letter dated August 30, 1969, from its International
representative, Willie Berry, objected to the list alleg-
ing it did not "contain correct names" and the address-
es were "incomplete." However, the letter contained,
"We waive whatever rights would be granted to us
at this time and ask that you proceed with the election
as scheduled for September 12, 1969, reserving our
rights to file proper objections at the proper time
should we deem it necessary."
By letter dated September 3, 1969, the Fifteenth
Regional Office of the National Labor Relations Board
advised counsel for the Employer of the Petitioner's
objections to the list. There was no response to this
letter. The Petitioner states that its objections are
that the Excelsior list contained the first initial of
the employees' first names and full last names on
an overwhelming majority of those listed on the
Excelsior list and, furthermore, the addresses of those
on the list living in cities contained the name of
the city only, without further information, and the
addresses of those living in the country listed only
the route number, without further information.
In support of these objections, and as proof of
its claim that incomplete names and addresses were
prejudicial to their position, the Petitioner submitted
55 unopened envelopes which contain a letter Petition-
er sent out on or about September 13 and 14, 1969,
after the election to all those listed on the Excelsior
list.' These 55 had been addressed using the informa-
tion from the Excelsior list. This was the only mailing
by the Petitioner where the Excelsior list was used.'
The Petitioner did have one other mailing, but there
they used addresses from the authorization cards.
It should also be noted that Petitioner had more
complete addresses for a substantial portion of the
55 on its own authorization cards.
An analysis of these 55 returned shows that they
were returned for various reasons, as set out below.
The reasons shown were either checked by the Post
Office or written in by the postal carrier. They are
grouped by the undersigned for clarification purposes.
GROUP]
Reason Given: "Moved-no order." One returned:
M. Harvey, Route 1, Shelbyville, Tex.
GROUP2
Reason Given: "Not for route number" (number of
route was shown). Four returned: B. Smith, J. Smith,
A. Sudds, M. Sudds, all Route 2, Mansfield, La.
GROUP3
Reason Given: "Addressee unknown"-"Insufficient
address." Five returned: O. Brown, Carthage, Tex.;
' This letter advised the employees that the Petitioner intended to
file objections to the election
' The Petitioner orally stated that this mailing after the election was
to test or check the Evice(sior list
B. A. Griffith, Tenaha, Tex.; G. Hill, Carthage, Tex.;
W. Hudson, Mansfield, La.; S. Patterson, Carthage,
Tex.
GROUP4
Reason Given: "Addressee unknown." Eighteen
returned: A. R. Brown, Logansport, La.; O. Brown,
Logansport, La.; C. Canada, Mansfield, La.; L. Green,
Logansport, La.; L. Jones, Route 1, Logansport, La.;
R. McCraney, Route 4, Mansfield, La.; M. McPhear-
son, Joaquin, Tex.; A. Mathis, Route 2, Logansport,
La.; W. Morris, Joaquin, Tex.; H. Parker, Logansport,
La.; A. Patton, Logansport, La.; L. E. Peoples, Route
1, Logansport, La.; H. Peques, Logansport, La.; B.
Thomas, Longstreet, La.; P. Williams, Route 2,
Logansport, La , E. Windham, Center, Tex.; R.
Windham, Center, Tex.; O. Yarborough, Teneha,
Tex.
GROUP5
Reason Given: "Insufficient address." Twenty-Seven
returned. A. Adkins, Mansfield, La.; J. A. Anderson,
Mansfield, La.; I. Bennett, Route 3, Mansfield, La.;
O. D. Brown, Route 3, Mansfield, La.; J. Byrd,
Mansfield, La.; D. Copeland, Route 3, Mansfield,
La.; E. Davis, Route 3, Mansfield, La.; M. Drain,
Route 3, Mansfield, La.; W. E. Gilliard, Mansfield,
La.; B. L. Jones, Route 1, Mansfield, La.; D. Jones,
Route 1, Mansfield, La.; M. Jones, Mansfield, La.;
L. Murphy, Mansfield, La.; F. Parker, Route 4, Mans-
field, La.; S. Parrott, Route 2, Mansfield, La.; L.
Randolph, Mansfield, La.; M. Robinson, Mansfield,
La.; M. Rogers, Route 3, Mansfield, La.; C. Stanley,
Route 3, Mansfield, La.; F. A. Thomas, Route 3,
Mansfield, La.; T. H. Turner, Mansfield, La.(on list
T. N. Turner); W. C. Turner, Mansfield, La.; D.
Watson, Mansfield, La.; D. Wells, Mansfield, La.;
B. N. Williams, Mansfield, La.; C. R. Williams, Route
1, Logansport, La.; L. Windham, Center, Tex.
As Petitioner points out, there are seven pairs
of individuals on the Excelsior list with identical
first initials and identical last names. They are as
follows: L. Brown, Logansport, La. and L. Brown,
Logansport, La.; O. Brown, Carthage, Tex. and O.
Brown, Logansport, La.; D. Jones, Route 1, Mansfield,
La. and D. Jones, Route 1, Mansfield, La.; C. Thomas,
Route 1, Joaquin, Tex. and C. Thomas, Logansport,
La.; D. Whitaker, Route 1, Grand Cane, La. and
D. Whitaker, Route 1, Grand Cane, La.; N. Wilson,
Logansport, La. and N. Wilson, Route 1, Longstreet,
La.; R. Windham, Center, Tex. and R. Windham,
Route 2, Joaquin, Tex. The letters to both persons
designated O. Brown came back. One of the envelopes
was marked "Addressee unknown-insufficient
address." The other was marked "Addressee
unknown." The R. Windham letter sent to Center,
Texas, was returned with the notation "Addressee
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unknown," and one of the D. Jones envelopes was
returned marked "Insufficient address."
In addition, a comparison of the names and address-
es listed in the five groups set out above to the
Excelsior list shows that there are many instances
where there are more than one person with the same
family name, though with different first initials. The
Assistant Postmaster-In-Charge at the Mansfield,
Louisiana, Branch Office of the United States Post
Office, a Mr. Campbell, stated that a complete first
name would help in delivering mail only if the particu-
lar postman who services the route has personal
knowledge of where the person receives his mail.
According to him, many of the people concerned
received their mail in other persons' mail boxes and
because of this there is no record of their names
or initials with the Post Office Department.
The Employer states that it requires each applicant
for employment to complete a form that has a blank
space for insertion of the applicant's full name and
a blank space for the applicant to fill in his full
present address. Though requested to do so, the
Employer did not make these forms available during
the course of the investigation. The Employer stated
that he wasn't sure what clerk made up the list
or from what the list was compiled. However, Plant
Manager Kaiser Wright orally stated that he was
quite sure the forms contained whole names and
not first initials . Also, the eligibility list submitted
by this same Employer on December 12, 1967, for
use in Case 15-RC-3787, revealed that whole first
names were available to the Employer at that time
and at least 85 persons from that list also appeared
on the list in the instant case.
Thirteen envelopes containing campaign literature
which had been mailed by the Employer were submit-
ted by the Petitioner and Petitioner's witnesses, and
all of these thirteen envelopes had complete names
of employees. Additionally, one unit employee stated
that she received campaign literature from the
Employer addressed to her with her name in full.
The Petitioner's postelection mail to her was returned
with the address as written on the list. The only
difference in the two envelopes is the spelling out
of the entire first and middle names. Two other
unit employees with identical first initials and last
names received campaign mail from the Employer
when their names were spelled out in full, but the
Petitioner's postelection mail for one of them was
returned where only the first initial and last name
was used.
The Employer presented 42 envelopes containing
campaign literature that had been mailed by it on
September 8, 1969, using the Excelsior list names
and addresses and which had been returned by the
Post Office. However, many employees stated during
the investigation that they had mail handed them
at work which had been returned to the Employer
by the Post Office Department. A total of 14 employ-
ees stated that at the time they filled out their applica-
tion forms, they indicated a Post Office box number
at which they received their mail. None of these
14 had a box number next to their name on the
Excelsiorlist. None of these 14 employees had changed
addresses since filling out their application forms.
In addition, at least 20 of the names appearing both
on the list in the aforementioned 15-RC-3787 and
on the eligibility list in this case had a box number
beside their name in the other case but not in this
case.
There is some evidence, as shown above, that the
Employer did not always use the same addresses
as that furnished to the Petitioner, and used, at least
in some mailings, complete names and addresses that
were not supplied to the Petitioner. One witness for
whom no full name or box number was supplied
on the list produced two envelopes containing cam-
paign literature mailed by the Employer and received
by her addressed with a full name and post office
box number. Mail sent to her by Petitioner after
the election using the Excelsior list was returned.
The Petitioner had this employee's complete address
on an authorization card.
Ten other witnesses for whom no post office box
number was supplied on the list and who stated
that they filled in the application form with a post
office box stated that they received mail from the
Employer with their post office box number on the
envelopes. The Company also sent campaign mail
to a unit employee who was not on the list.
While the foregoing demonstrates that the Employer
did indeed have and use full names for most employees
and had and used more complete addresses for an
undisclosed number of employees, it is not shown
that had the Employer furnished the more complete
information it would have been of material benefit
to the Petitioner. The Petitioner made no mailing
of campaign literature on the basis of the list furnished
and therefore was not prejudiced by the inadequacy
of the list. In the Singer Company, 175 NLRB No.
28, the Board refused to set an election aside even
though it found that the employer used full names
and more accurate information than that which it
had furnished to the Union. The Board stated "the
Excelsior rule requires that an employer furnish a
list containing all information necessary, for expedi-
tious communication , and, in other circumstances,
we might well find the failure to provide full first
names to be violative of those requirements. However,
in the instant case, the record indicates that the
RITE-CARE POULTRY CO
supplying of full first names would not have been
of material benefit in assisting delivery of Petitioner's
communications ." And in Telonic Instruments, A Divi-
sion of Telonic Industries, Inc., 173 NLRB No. 87,
the Board indicated that the Excelsior rule will not
be mechanically applied where an employer has "made
some attempt" to comply . It would indeed be a
mechanical application of the rule of Excelsior to
hold that a union can have an election set aside
because of a partially defective list where it did not
use the list to communicate with eligible voters prior
45
to the election and where it had the information
on its authorization cards to correct a substantial
portion of the 55 incorrect addresses. The Petitioner
in this case did not use the list for purposes which
led to the Excelsior rule, but seeks to use it as
a technical reason to have an election set aside.
Based upon these facts, the undersigned finds that
Petitioner's Objections 1 and 2 do not raise substantial
or material issues affecting the results of the election.
Accordingly, Objections 1 and 2 are overruled.