Laidlaw Medical Transportation, Inc. d/b/a Medtrans and/or American Medical Reserve/AMR - Decision Summary

Laidlaw Medical Transportation, Inc. d/b/a Medtrans and/or American Medical Reserve/AMR (31-RC-7473; 326 NLRB No. 79) Torrance, Calif. Aug. 27, 1998. Chairman Gould and Member Fox sustained the Intervenor's Objection l finding that the Employer did not substantially comply with the Excelsior rule, set aside the election held July 28 and 29, 1997, and directed that a second election be conducted. Member Hurtgen dissented.

The tally of ballots shows 53 for the Petitioner (Professional EMTs and Paramedics, Boilermakers), 141 for the Intervenor (EMTs and Paramedics, a division of NAGE, SEIU), and 277 for neither labor organization, with 27 challenged ballots, an insufficient number to affect the results. The hearing officer found that the Intervenor's mailings to 94 employees during the election campaign were returned to it due to incorrect addresses on the Excelsior list. By letter dated July 1, 1997, the Intervenor informed the Employer of its concern that the Excelsior list contained numerous incorrect addresses and requested an "updated mailing list." The Intervenor reiterated its concern and request in a July 8 telephone conversation with the Employer's counsel. The Employer did nothing further to correct the list.

Chairman Gould and Member Fox stated in finding that the Employer's disregard for the Intervenor's request is incompatible with the Excelsior requirements: "When presented with the Intervenor's report that numerous employees had failed to receive its mailings, the Employer was obligated to use its best efforts to furnish corrected addresses, especially in light of its policy that employees were required to report address changes. The fact that the Postal Service could have forwarded some of the Intervenor's mailings to the employees' correct addresses in no way minimizes this obligation, and the hearing officer's reliance on this fact to find that the Employer substantially complied with its Excelsior duty is erroneous." Chairman Gould believes that whether the Employer acted in good faith is not relevant to resolving an objection to an Excelsior list. Member Fox does not disagree that the Employer may well have been acting in good faith at the time it submitted the original list. She found the objectionable conduct was the Employer's response to the message that a substantial number of the addresses were inaccurate. The majority found it unnecessary to pass on the hearing officer's recommendation to overrule Intervenor's Objection 5.

Dissenting Member Hurtgen noted that there was no evidence that the inaccuracies in the Excelsior list were caused by gross negligence or bad faith on the Employer's part. He noted further that the inaccuracies were limited to employee addresses, not names; and that the return rate was only 4 percent. Member Hurtgen stated: "The Employer had furnished its last best list. Further, as a fail-safe measure, it used the 'please forward' legend on its envelopes; the Intervenor could have done the same. Finally, the Postal Service took care of the problem (except for 4 percent) by giving the Intervenor the new addresses. Intervenor then successfully used these new addresses." Member Hurtgen would adopt the hearing officer's finding regarding Objection 5, that the Employer's display of "Vote Neither" banners at the Southgate, Los Angeles/Jefferson, and Palmdale facilities did not constitute objectionable conduct.

(Chairman Gould and Members Fox and Hurtgen participated.)