Special Citizens Futures

National Labor Relations Board - Board Decisions

May 18, 2000

331 N.L.R.B. 160 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
Special Citizens Futures Unlimited, Inc. and District
Council 1707, AFSCME, CSEA, Petitioner.
Case 2–RC–21895
May 18, 2000
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held at the Employer’s three group homes on October 17
and 18, 1997,1 and the Regional Director’s Report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 9 ballots for and 16 against the
Union, with 4 challenged ballots, an insufficient number
to affect the results.2
The Board has reviewed the record in light of the ex-
ceptions and briefs and adopts the Regional Director’s
findings and recommendations only to the extent consis-
tent with this Decision, and finds that the election must
be set aside and a new election held.
On September 19 and 23, respectively, the Union and
the Employer executed a Stipulated Election Agreement.
Pursuant to item 2 of that election agreement, the Em-
ployer agreed to submit an Excelsior3 list to the Regional
Office within 7 days of the agreement’s approval. Con-
trary to established Board procedure, the Regional Office
failed to notify the parties immediately upon the election
agreement’s approval on September 26.4 Specifically,
the Regional Director’s preelection letter to the parties,
although dated September 26, was not mailed out until
October 2, along with the election notices. The letter, in
addition to notifying the parties of the election agree-
ment’s approval, also directed the Employer to file an
Excelsior list “containing the full names and addresses of
all eligible voters” with the Regional Office on or before
Friday, October 3, in order to be timely filed. The letter
also warned that the Employer’s failure to comply “shall
be grounds for setting aside the election whenever proper
objections are filed.”
On October 3, the Petitioner’s counsel telephoned the
Employer’s counsel to ascertain when the Excelsior list
would be submitted to the Regional Office. In response,
the Employer’s counsel contacted the Regional Office
and was informed that the Excelsior list was due that
day. At approximately 6:24 p.m. that evening, after the
Regional Office had closed,5 the Employer’s counsel
transmitted an Excelsior list to the Regional Office by
facsimile. The 3-page list, comprised of 27 names and
addresses, included only the employees’ surnames and
first initials, rather than their full names as required.

1 All dates are in 1997 unless otherwise indicated.
2 The tally of ballots inadvertently stated that there were approxi-
mately “40” employees eligible to vote in the election; the correct
number is 30.
3 See Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
4 See Sec. 11312.1(a) of the NLRB Casehandling Manual (Part
Two), Representation Proceedings.
5 The Regional Office’s official closing time is 5:15 p.m.
On the afternoon of Monday, October 6, the Regional
Office transmitted a copy of that list to the Petitioner’s
counsel by facsimile; however, counsel received only
two of the three pages. There was no indication that the
list was a provisional one. Upon receipt of the list, the
Petitioner’s counsel faxed it to the Petitioner’s director of
organizing. Later that day, however, the Employer’s
counsel submitted a second, revised Excelsior list to the
Regional Office. This list omitted one name from the
original list and included four additional names. Unlike
the original Excelsior list, this list included both the em-
ployees’ first and last names.
Again contrary to established Board procedure, the
Regional Office did not immediately forward the second
Excelsior list to the Petitioner’s counsel.6 Rather, the
Regional Office waited until the afternoon of the follow-
ing day, October 7, when it then transmitted a copy of
that list by facsimile. The Petitioner’s counsel was not
advised that the list was meant to supersede the list it had
received the day before. Unaware of the disparity be-
tween the two lists, the Petitioner’s counsel did not for-
ward the second list to the Petitioner’s organizing staff.
On October 15, at the Regional Office’s request, the Em-
ployer submitted yet a third Excelsior list, with employ-
ees’ names organized by polling site. The election was
conducted on October 17 and 18.
In his report, the Regional Director, relying on Pole-
Lite Industries, 229 NLRB 196, 197 (1977),7 concluded
that the Employer here had substantially complied with
the Excelsior rule, although it had failed to submit the
Excelsior list in a timely manner. He based his conclu-
sion upon the factors then considered relevant by the
Board, including, inter alia, (1) the number of days which
the list was overdue; (2) the number of days which the
union had the list prior to the election; and (3) the num-
ber of employees eligible to vote in the election. The
Regional Director reasoned that the Employer had sub-
mitted the first Excelsior list after the close of business
on the 7th day after the approval of the election agree-
6 See Sec. 11312.2 of the NLRB Casehandling Manual (Part Two),
Representation Proceedings, which provides that the Excelsior list
should be mailed to all parties “[i]mmediately upon receipt.” See also
Mod Interiors, 324 NLRB 164, 165 (1997) (explaining that the peti-
tioner is “entitled to receive the list as soon as it is filed”); Sec.
102.113(d) of the Board’s Rules and Regulations which provides, in
pertinent part, that the Board may serve certain documents, including
Excelsior lists, by facsimile transmission.
7 In Pole-Lite, the Board found that the employer had substantially
complied with the Excelsior rule where it sent the list by hand delivery
on the date that it was due; the delay of receipt of the list by the Re-
gional Office by 3 calendar days and 1 business day was due to holiday
traffic; and the union had the list for 14 days prior to the election, and
thus had sufficient time to communicate with the relatively small unit
of 29 employees.
331 NLRB No. 19
SPECIAL CITIZENS FUTURES UNLIMITED 161
ment, and that the revised list, which cured any deficien-
cies in the first list, was submitted only 3 calendar days
and 1 business day later. In addition, he also reasoned
that the 10 days during which the Petitioner had the Ex-
celsior list in its possession prior to the election was am-
ple time for it to communicate with the relatively small
unit of 30 employees.
Considering the size of the unit, that the Petitioner had
the Excelsior list for 10 days, and that the Petitioner had
failed to establish that its election campaign had been
materially prejudiced by the late receipt of the Excelsior
list, the Regional Director concluded that any prejudice
the Petitioner may have suffered due to the Regional
Office’s error was “de minimis,” and did not warrant
setting aside the election. Accordingly, the Regional
Director recommended that the Petitioner’s Excelsior
objections be overruled and that a certification of results
be issued. We disagree.
It is well established that the purpose behind the Excel-
sior rule “is not intended to test employer good faith or
‘level the playing field’ between petitioners and employ-
ers, but to achieve important statutory goals by ensuring
that all employees are fully informed about the argu-
ments concerning representation and can freely and fully
exercise their Section 7 rights.” Mod Interiors, supra,
324 NLRB at 164, citing North Macon Health Care Fa-
cility, 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 em-
ployees that employers already have, thus enabling em-
ployees to hear not just the employer’s views, but also
the union’s arguments in support of unionization. Thiele
Industries, 325 NLRB 1122 (1998). Contrary to the Re-
gional Director, we find that the delay here in the Peti-
tioner’s receipt of a complete and accurate Excelsior list
interfered with this purpose.
The Board had in mind the reasons behind the Excel-
sior Underwear employee list requirement, described
above, in Alcohol & Drug Dependency Services, 326
NLRB 519 (1998), which issued after the Regional Di-
rector’s report in the instant case. In Alcohol & Drug
Dependency Services, the Board concluded that the elec-
tion should be set aside because, “contrary to the Excel-
sior requirements, the Employer did not provide the list
to the Region within 7 days of the Regional Director’s
approval of the election agreement. Further, contrary to
established Board procedure, the Region, upon receipt of
the list, did not immediately mail it to the Union.” Id. In
reaching this conclusion, the Board held that in cases
involving a delayed receipt of an Excelsior list, “the rele-
vant 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.” Id.
Specifically, in Alcohol & Drug Dependency Services,
the election was set aside when the delay attributed to the
Regional Office caused the list to be submitted 4 days
later than it should have been, so that the union had ac-
cess to the list for only 5 days before the election. The
Board, agreeing with the Regional Director, found that
this delay diminished the time during which the union
could communicate with unit employees. Id. at fn. 8.
The Board stated, however, that further “tangible” evi-
dence of prejudice, such as evidence of specific actions
that the union had planned but was unable to undertake
due to the late receipt of a list, was not required to estab-
lish that the delay resulting from the Regional Office’s
error had prejudiced it. Id. In deciding to set aside the
election, the Board also considered that the employees
were dispersed over five locations, that the unit was rela-
tively large, consisting of, at minimum, the 100 employ-
ees who voted, and that the vote, at 48 for and 50 against,
with 1 challenged ballot, was extremely close. Id. As
noted above, the fact that the delay was attributable to the
Regional Office rather than the Employer was not deter-
minative. Id.
In the instant case, it is undisputed that the first list
provided by the Employer, which set forth only the em-
ployees’ last names and first initials, but not their full
first names, was not in keeping with the Excelsior rule.
See Laidlaw Waste Systems, 321 NLRB 760 (1996), cit-
ing North Macon, supra, 315 NLRB at 361. Further, the
Petitioner’s counsel received only two of the three pages
of the first Excelsior list. Although the Employer sub-
mitted a revised Excelsior list the next business day,
thereby curing the deficiencies in the first list, neither the
Employer nor the Regional Office advised the Peti-
tioner’s counsel that the second list, which he received 4
days late, was not a duplicate of the first list, but rather a
revised list meant to supersede it. Unaware of the dispar-
ity between the two lists, the Petitioner’s counsel never
forwarded the complete and revised list, which omitted
one name and added four new names to the original list,
to the Petitioner’s organizing staff for use in its election
campaign. We further note that the unit employees
worked at three different facilities. Under these circum-
stances, the Petitioner here was at an obvious disadvan-
tage in communicating with the unit employees. See
Alcohol & Drug Dependency Services, supra; Women in
Crisis Counseling & Assistance, 312 NLRB 589 (1993).
Finally, we disagree with the Regional Director’s reli-
ance on the Petitioner’s possession of the list for 10 days
prior to the election and its failure to show that it had
been prejudiced by the Regional Office’s delay in for-
warding the lists. As explained in Mod Interiors, supra,
324 NLRB at 164, the Board’s practice is to give a peti-
tioner an opportunity to make use of an Excelsior list for
at least 10 days before the election. See Section 11302.1
of NLRB Casehandling Manual (Part Two), Representa-
tion Proceedings. Inasmuch as an employer must file the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
Excelsior list with the Regional Office within 7 days
after the approval of the election agreement, and a peti-
tioner is entitled to that list as soon as it is filed, a peti-
tioner could, as in the instant case, be entitled to that list
for more than 10 days, depending on when the election is
scheduled. Mod Interiors, supra at 164.
Our dissenting colleague, for the reasons set forth in
his dissent in Alcohol & Drug Dependency Services, su-
pra, would not set aside the instant election. He finds, in
agreement with the Regional Director, that the Employer
acted in good faith and in substantial compliance with
the Excelsior requirements. We do not disagree; how-
ever, as noted above, that is not the relevant inquiry here.
Rather, for purposes of determining whether to set aside
an election in cases of delay, the Board has made clear
that it will look only at whether that delay “interfered
with the purpose behind the Excelsior requirements.” Id.
Accordingly, in directing a second election here, we rely
solely on the fact that the Petitioner was prevented from
making full use of the Excelsior list because of its de-
layed receipt. Contrary to our dissenting colleague’s
view, we reiterate that a showing of actual injury by vir-
tue of the shorter time is unnecessary for purposes of
setting aside an election. See id. at fn. 8 and the cases
cited therein. We do, however, note that the record es-
tablishes that the Petitioner was impeded in its ability to
communicate with the unit employees.
Under all of these circumstances, we conclude that the
purposes behind the Excelsior requirement of providing
employees with a full opportunity to be informed of the
arguments concerning representation have been frus-
trated. Accordingly, we find that the election must be set
aside and a new election directed.
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting.
I agree with the Regional Director that the Employer
was in substantial compliance with the Excelsior re-
quirements and that the election should not be set aside.
The case involves deficiencies on the part of the
NLRB Regional Office and the Union, i.e., everyone
except the Employer. Further, notwithstanding these
deficiencies, the Union had the Excelsior list for 10 days
prior to the election. Despite all of this, my colleagues
overturn the election, which the Union lost.
In brief, the facts are as follows. The stipulation was
approved on September 26. However, contrary to estab-
lished Board procedures, the Region waited until October
2 to send out the poststipulation letter apprising the Em-
ployer of the Excelsior requirements. On October 3,
before the Employer’s receipt of the Region’s letter, the
Union inquired of the Employer as to when the Excelsior
list would be sent to the Region.1 In response, the Em-

1 The letter was sent by regular mail. The Employer asserts that it did
not receive the letter by October 3. There is no claim to the contrary.
ployer faxed the list to the Region on that day. However,
since the Employer had not yet received the Region’s
letter of October 2, the Excelsior list did not contain the
full names of employees. The list contained only sur-
names and first initials. There were 27 names.2
On October 6 (Monday), the Region sent that list to the
Union’s counsel. However, because of a transmission
error, the list contained only two of the three pages. The
Union’s counsel forwarded it, as it was, to the Union’s
organizer.
Also, on October 6, the Employer sent a revised Excel-
sior list to the Region. The list contained full names. It
also corrected inadvertent errors, by deleting one name
and adding four others.3
Contrary to NLRB policy, the Region waited until Oc-
tober 7 to send that list to the Union’s counsel. The Un-
ion’s counsel did not send it to the union organizer. Ac-
cording to my colleagues, he assumed that it was a dupli-
cate of the prior list. If he had simply perused it, he
would have known that this was not so.
On October 15, pursuant to a Regional request, the
Employer sent another Excelsior list, with employees
arranged by polling site.
Based on the above, it is clear that the Employer acted
promptly, correctly and in good faith.4 The Union and
the Region did not act promptly and correctly. Notwith-
standing this, the Union’s agent (the attorney) had a valid
Excelsior list for 10 days prior to the election. In these
circumstances, it is unfair and unwarranted to overturn
the election, which the Union lost.5
My colleagues do not challenge the fact that “the Em-
ployer acted in good faith and in substantial compliance
with the Excelsior requirements.” In my view, this is
sufficient to defeat an objection based on Excelsior.6
Nonetheless, on the basis of Excelsior, my colleagues set
aside the election. In this regard, they rely solely on the
2 The Employer explained to the Region that, because of religious
holidays, it could not then confirm complete accuracy. The Region
gave the Employer the right to modify the list.
3 See fn. 2 supra.
4 As noted above, the Employer’s failure to send the Excelsior list to
the Region within 7 days of the stipulation was the fault of the Region.
5 See my dissent in Alcohol & Drug Dependency Services, 326
NLRB 519 (1998). The cases cited by the majority are inapposite.
Thus, in Mod Interiors, 324 NLRB 164 (1997), 40 percent of the names
on the list originally furnished by the employer were inaccurate and the
revised list was not filed until 8 days before the election. In Thiele
Industries, 325 NLRB 1122 (1998), the Board did not set aside the
election. The employer was foreclosed from filing an objection based
on its own alleged misconduct. The Board also found that there was no
employer “misconduct” where there was “no evidence that the Em-
ployer deliberately omitted the name of any employee that it believed
to be eligible . . . .” Finally, in Laidlaw Waste Systems, 321 NLRB 760
(1996), unlike here, the only list that the employer furnished omitted
the full names of employees, and this error was attributable to the em-
ployer.
6 See, e.g., Lobster House, 186 NLRB 148 (1970); Fontainebleau
Hotel Corp., 181 NLRB 1134 (1970); Gamble Robinson Co., 180
NLRB 532 (1970); Program Aids Co., 163 NLRB 145 (1967); Valley
Die Cast Corp., 160 NLRB 1881 (1966).
SPECIAL CITIZENS FUTURES UNLIMITED 163
asserted fact that “the Petitioner was prevented from
making full use of the Excelsior list because of its de-
layed receipt.” As discussed above, I believe that “good
faith” and “substantial compliance” with Excelsior are
sufficient to defeat an Excelsior objection, at least in the
circumstances of the instant case. However, even accept-
ing as critical the matter on which my colleagues solely
rely, they are incorrect even as to that factor. As noted
above, the Petitioner’s agent had a valid list for 10 days
prior to the election. He simply neglected to send it to
his principal.