Woodman's Food Markets

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 503 (N.L.R.B. 2000)

WOODMAN’S FOOD MARKETS 503
Woodman’s Food Markets, Inc. and United Food &
Commercial Workers Union Local 1444, Char-
tered by the United Food & Commercial Work-
ers International Union, AFL–CIO, CLC, Peti-
tioner. Case 30–RC–5935
September 29, 2000
DECISION AND ORDER REMANDING
BY CHAIRMAN TRUESDLAE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board has considered
objections to an election held on September 25, 1997,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 36 for, and 49 against the Petitioner, with 7 chal-
lenged ballots,1 an insufficient number to affect the re-
sults of the election.
Having carefully reviewed the entire record, including
the Employer’s exceptions and brief, we adopt the hear-
ing officer’s findings and recommendations only to the
extent consistent with this decision.2 The issue in this
case is whether the Employer’s omission of names of
eligible voters from its Excelsior3 list is grounds for set-
ting aside the election. As the Board has recently held,
“employees have a Section 7 right to make a ‘fully-
informed’ choice in an election, and . . . the purpose of
the Excelsior rule is to protect that right.”4 Given this
critical purpose of the Excelsior list, we have reexamined
our case law on this issue. As explained below, we find
that, in determining whether an employer has substan-
tially complied with the Excelsior requirements, the
Board must consider not only the number of names omit-
ted from the Excelsior list as a percentage of the elector-
ate, but also other factors, including the potential preju-
dicial effect on the election as reflected by whether the
omissions involve a determinative number of voters and
the employer’s reasons for omitting the names.
On September 8, 1997, the Employer submitted an Ex-
celsior list containing the names of employees eligible to
vote. It is undisputed that the names of 12 eligible em-
ployees were omitted from that list. Four of these names
were omitted based on the Employer’s admittedly incor-
rect interpretation of the payroll eligibility requirement.
As for the remainder of the omitted names, the only ex-
planation given in the record is by the Employer’s human
resources representative, Kathy Klein, who testified that
“[i]t could have been [the result of] errors within the pay-
roll department.”

1 The seven ballots, challenged by the Board agent because the vot-
ers’ names did not appear on the Excelsior list, were cast by Michael
Fisher, Sirajul Jackson, David Keesey, Theresa Keesey, Kelly Kreuser,
Rae-Ann Lass, and Jacob Zizzo.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the Union’s Objection 3. Objections
1, 2, 5, and 6 were withdrawn prior to the hearing.
3 Excelsior Underwear, 156 NLRB 1236 (1966).
4 Thiele Industries, 325 NLRB 1122 (1998).
On or about September 21 or 22, the Employer sent
another list which deleted the names of some employees
who had been terminated since the September 8 list. The
September 21 list still omitted the 12 eligible employees.
At the election, the Board agent challenged the ballots
of 19 voters because their names were not on the Excel-
sior list. Before the tally of ballots, the parties resolved
12 of these challenges: they agreed that 7 voters5 were
ineligible and that their ballots would not be counted and
that 5 voters6 were eligible and that their ballots would
be opened and counted. Seven challenged ballots re-
mained unresolved: five of them were cast by Michael
Fisher, Sirajul Jackson, Kelly Kreuser, Rae-Ann Lass,
and Jacob Zizzo, part of the group of 12 employees
whose names were omitted from the list. The remaining
two unresolved challenged ballots were cast by David
Keesey and Theresa Keesey, whose names were not in-
cluded on the Excelsior list apparently because the Em-
ployer believed that they were statutory supervisors.
At the hearing, the parties stipulated that the following
12 eligible voters were omitted from the Excelsior list:
Sirajul Jackson, Rae-Ann Lass, Tara McGraw, Brenda
Rasibeck, Christopher Schenck, Mark Smith, Jennifer
Vargas, Jacob Zizzo, Kelly Kreuser, Lena Haslage, Mi-
chael Fisher, and Mark Neeson.7 The parties also stipu-
lated that these 12 omissions constituted 6.8 percent of
the eligible voters.8
Under the Board’s Excelsior rule, an employer must
file with the Regional Director an election eligibility list
containing the names and addresses of all eligible voters
within 7 days after approval by the Regional Director of
an election agreement or after a Direction of Election,
and no extension of time is granted except in extraordi-
nary circumstances. Excelsior Underwear, 156 NLRB
1236 (1966). The Excelsior rule is not intended to test
employer good faith or “level the playing field” between
5 The seven were Fashawn Brown, Jenny Flaig, James Ludwin, Jer-
emy Moore, Tony Retana, Nicholas Shear, and Cynthia Winburn.
6 The five were Josh Cairo, Lena Haslage, Mark Nelson, Chris
Schenck, and Jennifer Vargas.
7 The parties also stipulated that 16 employees listed on the Excel-
sior list had severed their employment before the submission of the list
and were thus ineligible voters.
8 The hearing officer rejected this stipulation and found that there
were in fact 34 names omitted and thus the percentage of names omit-
ted was 20.7 percent. Based on this higher percentage, the hearing
officer further found that the Employer acted in bad faith. We do not
rely on these findings of the hearing officer.
332 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504
petitioners and employers, but to achieve important statu-
tory goals by ensuring that all employees may be fully
informed about the arguments concerning representation
and can freely and fully exercise their Section 7 rights.
Mod Interiors, Inc., 324 NLRB 164 (1997), citing North
Macon Health Care Facility, 315 NLRB 359, 360–361
(1994). Accordingly, the Board requires that the infor-
mation in the Excelsior list be not only timely but com-
plete and accurate so that the union may have access to
all eligible voters.
In deciding whether an employer’s noncompliance
with the Excelsior rule warrants setting aside the elec-
tion, the Board has repeatedly stated that the Excelsior
rule is not to be “mechanically applied.” Telonic Instru-
ments, 173 NLRB 588, 589 (1968) (citations omitted).
The Board, however, has also recognized that the poten-
tial harm from omissions is sufficiently great to warrant
an approach that encourages a conscientious effort by
employers to comply with the Excelsior requirements.
Thrifty Auto Parts, 295 NLRB 1118 (1989). Accord-
ingly, the Board has looked to whether or not, under the
circumstances of a particular case, the employer has
“substantially complied” with the Excelsior require-
ments. Gamble Robinson Co., 180 NLRB 532 (1970);
Sonfarrel, Inc., 188 NLRB 969 (1971). In the absence of
a showing of bad faith,9 this analysis has traditionally
involved simply calculating the number of omissions as a
percentage of the total number of eligible voters. As
explained below, however, we find that this approach
fails to adequately effectuate the statutory purposes un-
derlying the Excelsior rule by failing to also consider
other factors.
The Board has consistently viewed the omission of
names from the eligibility list as a serious matter because
a party that is unaware of an employee’s name suffers an
obvious and pronounced disadvantage in communicating
with that person by any means. Women in Crisis Coun-
seling, 312 NLRB 589 (1993). See also Thrifty Auto
Parts, supra. Thus, the omission of names from the eli-
gibility list clearly frustrates the policies underlying the
Excelsior rule since the union may be denied the oppor-
tunity prior to the election to inform these voters of its
position on the issues raised before the election. The
Board has also long recognized that the closeness of the
vote is a significant factor in Excelsior cases. Ben Pear-

9 Although a finding of bad faith is not a precondition for a finding
that an employer has failed to comply substantially with the Excelsior
rule, the Board has held that a finding of bad faith will preclude a find-
ing that an employer was in substantial compliance with the rule. North
Macon Health Care Facility, supra; Bear Truss, Inc., 325 NLRB 1162
fn. 3 (1998). We agree with and reaffirm this Board policy.
son Plant, 206 NLRB 532, 533 (1973); Mod Interiors,
324 NLRB at 164.
Nevertheless, in applying the "substantial compliance"
rule, the Board in some cases has declined to set aside
the election on the ground that the number of omissions
constituted only a small percentage of the total number
of eligible voters, even though the number of omissions
involved a determinative number of voters. See, e.g.,
Kentfield Medical Hospital, 219 NLRB 174, 175
(1975)(finding that omission of 5 names out of 82 eligi-
ble voters, or 6%, did not warrant setting aside election
notwithstanding that union lost by only 3 votes).
We find that this approach10—which focuses solely on
the percentage of omissions relative to the number of
employees in the unit—fails to adequately effectuate the
purposes of the Excelsior rule. Accordingly, while we
will continue to consider the percentage of omissions, we
will consider other factors as well, including whether the
number of omissions is determinative, i.e., whether it
equals or exceeds the number of additional votes needed
by the union to prevail in the election, and the em-
ployer’s explanation for the omissions.
With respect to whether the omissions involve a de-
terminative number of voters, we note that the Board’s
Excelsior policy was designed to enhance the availability
of information and arguments both for and against union
representation to employees so that they might render a
more informed judgment at the ballot box. Thus, the
proper focus in determining whether an employer has
complied with the requirements of the Excelsior rule
should be on “the degree of prejudice to these channels
of communication, and not the degree of employer fault.”
Avon Products, 262 NLRB 46, 48 (1982). Obviously,
the potentially prejudicial effect on the election is most
clear where the number of omissions may have compro-
mised the union’s ability to communicate with a deter-
minative number of voters. To ignore this circumstance,
therefore, is not only inconsistent with the rule's purpose
but makes little sense. Accordingly, we overrule our
prior cases to the extent they have done so and hold that
whether the omissions involve a determinative number of
names must be considered in determining whether to set
aside the election.11
With respect to the employer’s explanation for the
omissions, we note that omissions may occur, notwith-
10 Cf. EDM of Texas, 245 NLRB 934 fn. 1 (1979) (10-percent omis-
sions does not constitute substantial compliance); Gamble Robinson
Co., 180 NLRB 532 (1970) (11-percent omissions does not constitute
substantial compliance).
11 We do not reach in this case whether the policy adopted here with
respect to the omission of names should also apply to incorrect ad-
dresses.
WOODMAN’S FOOD MARKETS 505
standing an employer's reasonable good-faith efforts to
comply, due to uncertainties about who is an eligible unit
employee or other factors. Thus, we will consider the
employer’s explanation for the omissions.12
Here, the percentage of omissions was relatively small
and, standing alone, might not warrant setting aside the
election. We find, however, that the Union may have
suffered substantial prejudice by its inability to commu-
nicate with these 12 employees since ballots cast by
these employees could have affected the outcome of the
election. We recognize that the Union lost the election
by 13 votes. However, in view of the additional chal-
lenged voters, David Keesey and Theresa Keesey (whose
names were also omitted from the eligibility list because
the Employer believed they were supervisors), the 12
omitted names could be determinative in this case.
We further find that the Employer has not presented a
legally sufficient justification for its omission of the 12
names. In this regard, we note that the Employer incor-
rectly interpreted the payroll eligibility requirement and
that the Employer’s payroll department may have com-

12 As noted above, if the employer acted in bad faith, that is the end
of the inquiry, and the election will be set aside. We hold here that,
absent bad faith, an employer’s explanation will be considered as a
factor in the analysis.
mitted errors. Although this does not show bad faith, it
does show a lack of diligence and due care by the Em-
ployer.13
Accordingly, we shall remand this proceeding to the
Regional Director for a determination as to the Keeseys’
eligibility. If it is determined that they are ineligible, the
omitted names are not determinative and the results of
the election should be certified. If, however, they are
eligible voters, the omission of the 12 names from the
Excelsior list could have affected the outcome of the
election and the direction of a second election is war-
ranted.14
ORDER
It is ordered that this proceeding is remanded to the
Regional Director for Region 30 to investigate and de-
termine the eligibility of David Keesey and Theresa
Keesey and for further appropriate action consistent with
this decision.
13 We also note that the Employer included on the Excelsior list the
names of 16 employees who had quit prior to the Employer’s submis-
sion of the list to the Regional Director. While we find that such con-
duct shows a lack of diligence by the Employer in compiling the list,
we find it unnecessary to rely on this conduct.
14 Under the circumstances of this case, we will not direct that the
ballots of the Keeseys be opened if they are found to be eligible voters.