Women in Crisis Counseling

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 589 (N.L.R.B. 1993)

589
312 NLRB No. 99
WOMEN IN CRISIS COUNSELING
1 The National Labor Relations Board has considered the objec-
tions in an election held on August 4, 1992, and the Regional Direc-
tor’s report recommending disposition of them. The election was
held pursuant to a Stipulated Election Agreement. The tally of bal-
lots shows 10 for and 16 against the Petitioner, with 4 challenged
ballots, an insufficient number to affect the election.
2 In the absence of exceptions, the Board adopts, pro forma, the
Regional Director’s recommendation to overrule the Petitioner’s Ob-
jections 2–5.
3 Contrast Thrifty Auto Parts, 295 NLRB 1118 (1989) (omission
of 2 of 21 names, 9.5 percent of eligible unit employees, was sub-
stantial noncompliance) with West Coast Meat Packing Co., 195
NLRB 37 (1972) (inaccuracies in 10 of 42 addresses, 22 percent,
and omission of 2 names, 4 percent, was substantial compliance).
4 See Excelsior Underwear, 156 NLRB at 1239–1243.
5 See Wasatch Medical Management Services, 272 NLRB 1180
(1984).
6 See Lobster House, 186 NLRB 148 (1970).
Women in Crisis Counseling & Assistance and
United Food and Commercial Workers Union
Local 1496, AFL–CIO, Petitioner. Case 19–RC–
12587
September 30, 1993
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue presented here is whether the Regional Di-
rector correctly recommended sustaining the Petition-
er’s objection and setting aside the results of a rep-
resentation election because the list of 20 eligible em-
ployees prepared by the Employer contained 6 inac-
curate addresses.1 The Board has reviewed the record
in light of the exceptions and brief and has adopted the
Regional Officer’s findings and recommendations,2
only to the extent consistent with this decision. For
reasons which follow, we reverse the Regional Direc-
tor and find that the Employer substantially complied
with the eligibility list requirements of Excelsior Un-
derwear, 156 NLRB 1236 (1966).
The relevant facts are not in dispute. On July 20,
1992, the Board’s Resident Office received from the
Employer and transmitted to the Petitioner an Excel-
sior list with the names and addresses of 20 eligible
unit employees. The Employer obtained the addresses
from its personnel files. On July 28, the Petitioner no-
tified the Resident Office that six addresses on the list
were incorrect because mail sent to those addresses
had been returned as ‘‘undelieverable’’ or ‘‘addressee
unknown.’’ On July 29, the Resident Office informed
the Employer about the incorrect addresses. The Em-
ployer immediately obtained and submitted corrected
addresses to the Resident Office, which relayed them
to the Petitioner on that same day. There is no evi-
dence or contention that the original inaccuracies were
the result of bad faith or gross negligence by the Em-
ployer. The election was conducted on August 4.
The Regional Director found that the 30-percent in-
accuracy rate for addresses represented a failure by the
Employer to submit an eligibility list which substan-
tially complied with the Excelsior requirements. We
disagree.
It is well settled that the Excelsior rule will not be
applied mechanically. See, e.g., Program Aids Co., 163
NLRB 145, 146 (1967). In determining whether an
employer has substantially complied with the rule, the
Board has consistently viewed the omission of names
as more serious than inaccuracies in addresses.3 This
distinction derives from a consideration of the policies
underlying the Excelsior rule. The Board devised that
rule for two basic purposes: (1) to insure an informed
electorate by affording all parties an equal opportunity
to communicate with eligible employees, and (2) to ex-
pedite the resolution of questions of representation by
minimizing challenges based solely on lack of knowl-
edge as to the voter’s identity.4
The omission of names from an Excelsior list is far
more likely to frustrate the Board’s purposes than inac-
curacies in addresses. A party that is unaware of an
employee’s name suffers an obvious and pronounced
disadvantage in communicating with that person by
any means and in assessing prior to the election wheth-
er that person is eligible to vote. A party with an em-
ployee’s name but an inaccurate 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 ad-
dress inaccuracies in Excelsior lists reflects a prag-
matic recognition that an employer reasonably should
know the names of employees in its current work force
but may be less able, without prompt disclosure from
the employees themselves, to maintain a completely
accurate list of their current addresses.
We do not mean to suggest that inaccurate address-
es, standing alone, can never be the basis for finding
that an employer has not substantially complied with
the Excelsior rule.5 In addition, the Board may set
aside an election because of an insubstantial failure to
comply with the Excelsior rule if the employer has
been grossly negligent or acted in bad faith in provid-
ing inaccurate addresses.6 In this case, however, we
find that the number of address inaccuracies in the Ex-
celsior list was not substantial enough to require set-
ting aside the election. Furthermore, as previously
noted, it is undisputed that the inaccurate addresses
were not the result of gross negligence or bad faith.
Accordingly, we shall overrule the Petitioner’s Objec-
tion 1 and certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is certified that a majority of the valid ballots
have not been cast for United Food and Commercial
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 But see West Coast Meat Packing Co., 195 NLRB 37 (1972)
(22-percent inaccuracy and 4-percent omission constitute substantial
compliance with Excelsior).
Workers Union Local 1496, AFL–CIO and that it is
not the exclusive representative of these bargaining
unit employees.
MEMBER DEVANEY, dissenting.
My colleagues reverse the Regional Director and
find that the Employer substantially complied with the
requirements of Excelsior Underwear, 156 NLRB 1236
(1966). I disagree.
The facts are not in dispute. Six of 20 addresses
provided were incorrect. This constitutes an inaccuracy
rate of 30 percent. I agree with the Regional Director
that a 30-percent inaccuracy rate is simply too high,
even in the absence of an employer’s bad faith or
gross negligence.
As my colleagues note, the Board has viewed the
omission of names and addresses as more serious than
inaccuracies in addresses. However, at some point
even address inaccuracies can be so substantial as to
require setting aside the election. I believe that the
limit has been exceeded in this case.
In Rite-Care Poultry Co., 185 NLRB 41 (1970), the
Board discussed the rationale for the requirement that
addresses be correct. It noted that one of the purposes
of Excelsior was to remove impediments to commu-
nication. It further noted that address inaccuracy ‘‘seri-
ously impairs the ability of labor organizations to lo-
cate 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.’’ Id. at 42 fn. 9. Although the Petitioner
in the instant case did eventually obtain the correct ad-
dresses a couple of days before the election, prior to
that time the Petitioner did not have the opportunity to
communicate with 30 percent of the unit employees at
their homes. Under such circumstances, I believe that
the delay effectively impaired the Petitioner’s ability to
make personal appeals to unit employees at their
homes.
While I recognize that the Excelsior rule is not to
be applied mechanically, I have not found any case in
which the Board has endorsed such a high inaccuracy
rate.1 I see no reason to do so in this case. I would
set aside the election.