The Lobster House

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 148 (N.L.R.B. 1970)

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Lobster House and Culinary Workers and
Bartenders Union Local 814, Hotel and
Restaurant Employees ' International Union,
AFL-CIO, Petitioner . Case 31-RC-1255
October 28, 1970
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification upon
Consent Election, an election by secret ballot was
conducted on January 9, 1970, under the direction
and supervision of the Regional Director for Region
31, among the employees in the appropriate unit. At
the conclusion of the election, the parties were
furnished a tally of ballots which showed that, of
approximately 90 eligible voters, 69 cast ballots, of
which 27 were for, and 41 against, the Petitioner.
There was one void ballot. Thereafter, the Petitioner
filed a timely objection to conduct affecting the
results of the election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation and, on April 21,
1970, issued and duly served on the parties his Report
on Objections in which he recommended that the
objections be sustained, the election be set aside, and
a new election be directed, as set forth in the attached
report. Thereafter, the Employer filed timely excep-
tions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all
employees employed by the Employer at 4211
Admiralty Way, Marina Del Rey, California, except
office clerical employees, gardeners, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
5. In its objection the Petitioner contends that the
Employer did not furnish the names and addresses of
all eligible voters as required by Excelsior Underwear
Inc., 156 NLRB 1236, and Wyman-Gordon Company,
394 U:S. 759. Petitioner alleges that 20 out of 97
addresses on the Excelsior list were erroneous. As
more fully set forth in his report, the Regional
Director found that 16 of the addresses were faulty
and that the Employer, therefore, had not substantial-
ly complied with the Excelsior rule. The Regional
Director also found that the Employer did not
exercise due diligence in preparing the list. We do not
agree and adopt the Regional Director's report only
to the extent consistent with this Decision.
It is now well settled that the Excelsior rule will not
be applied mechanically. E.g., Program Aids Co., 163
NLRB 145. In Valley Die Cast, 160 NLRB 1881, the
Board found that the employer had substantially
complied with the rule even though 48 of 314
addresses were never correctly furnished to the union.
More recently, the Board has held that approximately
56 incorrect addresses in a list of some 300 did not
vitiate the employer's attempt to comply with the
Excelsior requirement. Fontainebleau Hotel Corp., 181
NLRB No. 176. The case the Regional Director relied
on, in finding that a 16-percent error rate was not
substantial compliance, dealt with the omission of
names and addresses, not inaccuracy. There, the
employer left out the names and addresses of 4 of 36
eligible voters, potentially denying the union an
opportunity to contact a substantial portion of the
electorate. Pacific Gamble Robinson Co., 180 NLRB
No. 84. Here the Employer did not omit the names of
any eligible voters. We find that the number of errors
in the Excelsior list was not so substantial as to require
setting the election aside without further inquiry and
do not adopt the Regional Director's recommenda-
tion on this point.
The Regional Director's principal basis for recom-
mending that the election be set aside is his finding
that the Employer had not exercised due diligence in
preparing the Excelsior list. The report shows that the
Petitioner received the list approximately December
18, 1969, some 3 weeks before the January 9, 1970,
election. The list reflected the content of the Employ-
er's records as of that date except for two clerical
errors and the omission of two zip codes; which latter
might have aided the delivery of two letters. The
Regional Director also found that sometime after the
Excelsior list was submitted, but before the election,
the Employer received five changes of address and
did not report them to the Board or the Petitioner.
Generally, the Board will not set an election aside
because of an insubstantial failure to comply with the
Excelsior rule if the employer has not been grossly
negligent and has acted in good faith. Telonic
Instruments, 173 NLRB No. 87. While the Employer
186 NLRB No. 27
THE LOBSTER HOUSE 149
may have been negligent in not supplying address
changes it apparently received before 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 here, the Employer furnished its latest,
best list. We shall overrule the objection. Cf. The
Singer Co., 175 NLRB No. 28. As the tally of ballots
shows that the Petitioner has not received a majority
of the valid ballots cast, we shall certify the results of
the election.
CERTIFICATION OF RESULTS OF ELEC-
TION
It is hereby certified that a majority of the valid
votes has not been cast for Culinary Workers and
Bartenders Union Local 814, Hotel and Restaurant
Employees' International Union, AFL-CIO, and that
said labor organization is not the exclusive represent-
ative of the employees in the unit found appropriate
within the meaning of Section 9 (a) of the National
Labor Relations Act, as amended.
MEMBER BROWN , dissenting:
In agreement with the Regional Director's recom-
mendations , I would sustain the Excelsior objection
and direct a new election.
REPORT ON OBJECTIONS
Pursuant to a petition filed on November 10, 1969, and a
Stipulation for Certification Upon Consent Election
thereafter executed by the parties, an election by secret
ballot was conducted under the direction and supervision
of the undersigned on January 9, 1970, among the
employees of the Employer in the unit agreed appropriate.'
After the election each party was furnished with a tally of
ballots which showed that of approximately 90 eligible
voters, 69 cast ballots, of which 27 were cast in favor of the
Petitioner, 41 were against, and 1 was void.
On January 19, 1970, the Petitioner filed timely2
objections to conduct of the election and to conduct
affecting the results of the election, a copy of which was
duly served on the Employer. Pursuant to Section 102.69 of
the Board's Rules and Regulations, Series 8 as amended,
the undersigned, after reasonable notice to all parties to
present relevant evidence, has completed an investigation
of the objections, duly considered all evidence submitted by
the parties and otherwise disclosed by the investigation,
and hereby issues this Report thereon.
The Petitioner's objections, in their entirety are as
follows:
On December 11, 1969, the Regional Director of
Region 31 directed the Employer to submit to the
Petitioner an election eligibility list containing the
names and addresses of all the eligible voters, in
accordance with the Excelsior Underwear Inc. and the
Wyman-Gordon Company cases.
The Union received a list of names and addresses of
employees at the Lobster House, as of December 5,
1969. On this list there were approximately 97 names
and addresses. The Union, in attempting to contact
these persons, have found 20 wrong addresses, thus
making it virtually impossible to contact all the eligible
voters.
The Employer, in response to a letter from the
undersigned setting forth the Excelsior3 requirement,
timely filed a list setting forth the names and addresses of
employees eligible to vote in the election, and a copy of the
list was duly submitted to the Petitioner. The investigation
discloses, however, that 16 of the addresses were, either
incorrect or so incomplete as to be unusable for mailing
purposes.
The Employer is a corporation engaged in the operation
of a chain of establishments, one of which is the Marina Del
Rey restaurant concerned herein. Unit employees are hired
at the restaurant and at the time of hire are required to
submit employment application forms or W-4 forms
(Employer's Withholding Exemption Certificates) which,
inter alia, provides spaces for full names and addresses,
including zip code numbers. The restaurant keeps a record
of each name and address for its own use and transmits the
W-4 forms and employment application forms to the
Employer's corporate office in Santa Barbara, California,
approximately 100 miles away. At the corporate office a
card index is maintained wherein there is a card for each
employee, showing name and address and providing a
space for "address change" along with other information.
The Employer states that the "Excelsior" list was prepared
from these index cards at its corporate office.
Although the Petitioner received its copy of the
"Excelsior" list on or about December 18, 1969, it made no
attempt to use the list until Monday, January 5, 1970.
Starting on that day and continuing until January 8, it
conducted a campaign of home visits to employees, and on
January 7, made a mailing of campaign literature to them.
A few of the mailings to employees were returned to the
Petitioner from the Post Office on January 9, the day of the
election, and many more in the following week. Also, in the
course of the home visits, the Petitioner representatives
encountered instances in which the address shown on the
list could not be located or in which the employee appeared
not to live at the address given. Apparently, it was not until
the week after the election that the Petitioner, upon finding
the number of letters returned and checking with its 5
representatives as to the results of their home visits, realized
the extent to which the "Excelsior" list was defective. The
I All employees employed by the Employer at 4211 Admiralty Way,
Marina Del Rey, California , except office clerical employees , gardeners,
guards and supervisors as defined in the Act.
2 The envelope containing the objections was deposited in the U.S. Post
Office in Los Angeles early on the morning of Friday, January 16, 1970,
and was mailed by special delivery. A postmark shows that the special
delivery envelope was being processed at the post office at 10 a . m. that
morning . Nevertheless, the envelope, although correctly addressed , was not
delivered at the Board office until the morning of Monday, January 19,
1970. The undersigned has concluded that the delay in receiving the
objections at the Regional Office is not attributable to the objecting party
and has investigated and considered the issues raised by the objections. Rio
de Oro Uranium Mines, Inc., 119 NLRB 153.
3 Excelsior Underwear Inc., 156 NLRB 1236.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner has offered evidence that the addresses shown on
the list are incorrect as to 22 employees , but the
investigation shows that the Petitioner is mistaken as to 3 of
these. It has not been possible up to this time to verify as to
the addresses of 3 others, 2 of whom had ceased their
employment by the date of the election.
Of the 16 known incorrect addresses , 12 were incorrect
because the employees concerned had moved after their
initial employment and these changes were not reflected on
the corporate office index cards . Of the remaining 4
incorrect addresses, 2 were incorrect because of clerical
errors in preparing the list and 2 were incorrect because the
city in each case was stated as Los Angeles, whereas one of
the employees concerned resides in Venice , California, and
the other in Marina Del Rey. Venice, in fact, is part of the
City of Los Angeles, but has a separate post office
designation, while Marina Del Rey is an unincorporated
area of Los Angeles County, but also has a separate post
office . Examination of the W-4 form prepared by these last
2 employees shows that in each case the employee stated his
city as Los Angeles, but in each case included the zip code
number which would have clarified the designation. The
Employer failed to include any zip code numbers on the
"Excelsior" list, although that information was part of its
records and in some, if not all, cases was included on the
index cards from which the list was prepared.
As to the employees who had moved, the Employer's
restaurant manager, the official in direct charge of the
establishment concerned herein, states that new employees
are told at the time of hire that they should report changes
in address . He states further that such information, when
received, is supposed to be relayed from his office to the
corporate office, but he acknowledges that the information
is not always relayed. Of the employees interviewed in
connection with investigation, 9 state that they were never
told that they should report changes in address, 1 does
recall such an instruction , and the rest do not recall. Of the
12 employees whose addresses were shown incorrectly
because they had moved, 5 state that they notified the
restaurant of the change in address prior to the election.
The Employer 's executive vice president states, "There
were 1 or 2 employees who reported an address change
between the time the list of names and addresses of
employees eligible to vote in the election (was prepared)
and the time of the election . There were 5 people whose
addresses changed and of which change we were notified in
Santa Barbara after the list of names and addresses was
mailed, but I do not know if we were notified of the address
change before or after the election ." He concedes that no
effort was made to insure that the Employer's records were
up to date and that no effort was made to notify the Board
or the Petitioner of the corrections which he admits, were
brought to the Employer's attention . He further states,
"There is no system of making sure that employees report
changes in address."
On December 27, 1969, the Employer posted on the
bulletin board at the restaurant a list showing the names of
all employees and asking that address changes be noted on
it by the employees. Three employees stated that they noted
changes the first day the list was posted . However, the
Employer then removed and destroyed the list without
recording the changes shown , allegedly for the reason that
some employees objected to having their correct addresses
known.
The Employer mailed no literature to the employees in
connection with the election campaign and in fact it
normally distributes documents to its current employees by
hand at the restaurant , rather than by mail . The restaurant
manager states as the reason , "The Lobster House , just like
all restaurants , does not mail W-2 forms or any other
information to employees because restaurant employees are
traditionally transient."
The Employer argues that the objections are without
merit because the list submitted was compiled from records
which it kept in the ordinary course of its business and from
information supplied by the employees themselves ; because
the employees had a duty to inform the Employer as to any
changes in their address ; because the Petitioner, having
made a claim to represent a majority of the employees,
should have known the correct addresses ; and that in any
case it cannot be shown that the Employer was culpably
negligent.
The undersigned finds that although the list was taken
from records which the Employer kept in the ordinary
course of its business, 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
restaurant , which it knew to be more up to date . Assuming
that the employees had a duty to inform the Employer as to
changes in their address , a question still arises as to the
Employer's reliance upon that obligation where, as here,
the Employer had knowledge of the unusual mobility of its
employees and its records show that for a number of the
employees who started their employment in June 1967,
when the restaurant opened, the corporate office index
cards reflected only the addresses submitted at that time.
As to the Petitioner's knowledge of correct addresses, the
investigation shows that the Petitioner did have authoriza-
tion cards showing correct addresses for 4 of the 16
employees for whom incorrect or incomplete addresses
were received . The Petitioner states that it relied upon the
list submitted by the Employer rather than its own records
because it knew that its cards reflected only a fraction of
the complement of employees and because it knew its own
records to be 3 or more months old at the time of the
election and it assumed that the Employer 's list would be
up to date.
The undersigned concludes that the Employer, at the very
least, failed to exercise due diligence in its preparation of
the "Excelsior" list. Without deciding whether , under other
circumstances , an Employer of highly mobile employees
would be justified in relying on records up to 2-1/2 years
old which never had systematically been brought up to
date , the undersigned concludes that in this case the
Employer demonstrated a lack of reasonable diligence by
the totality of its conduct, including the failure to report the
5 changes in address which were brought to its attention,
the failure to include the zip code numbers which appeared
THE LOBSTER HOUSE
in its records, and by the clerical errors which occurred, as
well as by its reliance on records which it admittedly had
reason to know were defective. The Employer's reliance on
Valley Die Cast Corporation', in this regard is inapposite
because, unlike the employer in that case, the Employer
here failed to report to the Board the corrections in address
which in fact were brought to its attention. In any event, it
is clear that over 16 percent of the addresses on the list
submitted were incorrect, and thus the Petitioner did not
have opportunity prior to the election to inform a
substantial percentage of the electorate of its position and
the issues raised by It .5 Accordingly, the undersigned
recommends that the objections be sustained.6
CONCLUSION
For the reasons set forth above, and upon the investiga-
tion as a whole, the undersigned has recommended that the
151
objections be sustained. It is further recommended that the
election be set aside and a new election be directed.
As provided in Section 102.69 of the Board's Rules and
Regulations, Series 8, as amended, any party desiring to
take exception to this Report or the recommendations
herein may, within 10 days from the date of issuance of this
Report, file with the Board in Washington, D.C. 20570,
eight copies of such exceptions. The party filing the same
shall serve a copy thereof upon the National Labor
Relations Board, Twelfth Floor, Federal Building, 11000
Wilshire Boulevard, Los Angeles, California 90024.
Signed at Los Angeles, California, this 21st day of April
1970.
Jerrold H. Shapiro,
Acting Regional Director
Region 31
National Labor Relations Board
4 160 NLRB 1881 . Also cf Telonic Instruments, a Division of Telonic Co, 180 NLRB No 84
Industries, 173 NLRB No. 87. 6 Custom Catering Inc, d/b/a Blue Onion, 175 NLRB No 3
5 Pacific Gamble Robinson Co, Omaha Branch d/b/a Gamble Robinson