Rite-Care Poultry Co, Inc.

RITE-CARE POULTRY CO Rite-Care Poultry Company , Inc. and Amalgamated Meat Cutters & Butcher Workmen of North Amer- ica, AFL-CIO, Petitioner. Case 15-RC-4202 August 21, 1970 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, MCCULLOCH, BROWN, AND JENKINS On November 28, 1969, the Regional Director for Region 15 issued his Supplemental Decision and Cer- tification of Results of Election in the above-entitled proceeding in which he overruled the Petitioner's objections to conduct affecting the results of the elec- tion.' Thereafter, pursuant to National Labor Rela- tions Board Rules and Regulations, the Petitioner filed a request for review of the Regional Director's Supplemental Decision, contending, inter alia, that he erred in overruling Objections 1 and 2 by failing to conclude that the list of names and addresses of eligible voters supplied by the Employer did not comply substantially with the requirements of Excels- ior 2 The Employer filed opposition thereto. By telegraphic order dated February 17, 1970, the National Labor Relations Board granted the request for review. The Board has considered the entire record in this case, including the Regional Director's Supple- mental Decision and the arguments contained in the Petitioner's request for review and the Employer's opposition thereto, and makes the following findings: The Petitioner contends that the facts as found by the Regional Director concerning Objections 1 and 2' demonstrate that the Employer failed to comply with the requirements of Excelsior. We agree. As found by the Regional Director, the list which the Employer supplied for the most part provided only the initials of forenames of employees. More significantly, it provided only the names of the town or city where the employees lived and, in some instances, a route number.' Omitted from the addresses The tally of ballots for the election showed that of approximately 289 eligible voters, 103 cast valid ballots for, and 113 against, the Petitioner, 5 cast challenged ballots, and 2 cast void ballots Excelsior Underwear Inc., 156 NLRB 1236 The section of the Regional Director's Supplemental Decision which deals with Objections I and 2 is attached hereto as Appendix A We observe that 13 pairs of individuals had the same surnames Seven pairs of individuals had the same first initials and identical surnames Some pairs with identical names had the same town and route number We also observe that in at least two instances employees received mail 41 were street addresses and/or post office box numbers, which information it appears the Employer had in its files and in fact utilized in making its own mailings of campaign propaganda to its employees. Shortly after receiving the aforesaid list the Petition- er wrote a letter to the Regional Director complaining that the list did not contain "correct" names and that the addresses were "incomplete" but indicated it wished to proceed with the scheduled election, reserving its right to file objections based on the list. The Regional Director advised the Employer of the Petitioner's complaint concerning the list. The Employer made no response. Prior to the election the Petitioner made no attempt to use the list supplied by the Employer in mailing campaign propaganda to employees and it advised the Regional Director that the incomplete list was confusing and made a correct mailing impossible. It made one mailing to some employees using the addresses supplied by them on their authorization cards. However, as more fully detailed in the Regional Director's decision, the Petitioner, to support its claim that the list supplied by the Employer was inadequate to reach employees by mail, used it in mailing letters to the approximately 289 eligible voters after the election to inform them of its intentions to file objec- tions to conduct affecting the election results, and 55 of the letters were returned. Upon the foregoing, we conclude that the Employer did not comply substantially with the requirements of Excelsior because the list of names and addresses which it supplied did not include information available from its files as to street addresses and/or post office box numbers. The Regional Director found that, although the Employer did not furnish a complete list of names and addresses of eligible voters, as required by Excelsior, the Petitioner "did not use the list for purposes which led to the Excelsior rule, but seeks to use it as a technical reason to have an election set aside." We do not agree. The purposes of the Board's requirement enunciated in Excelsior were several. The most obvious was to remove impediments to communication. As described more fully below, Petitioner lacked the opportunity to communicate with allof the electorate. Another purpose was "to facilitate early resolution of disputes over voting eligibility."5 Still another was "to insure accuracy and currency of the names and addresses as it [the Employer's list] is the most reliable source of such information."6 Even had Petitioner from the Employer addressed with full first and last names but did not receive the Petitioner's mailing that did not contain their full name ' Murphy Bonded Warehouse, Inc, 180 NLRB No 29. 'Id. 185 NLRB No. 10 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtained a full and correct list of names and addresses from sources other than the Employer-which it had not-"such a list does not carry the same assurance of accuracy and completeness as a list obtained by an employer from the employment records."' We do not agree with the Regional Director's conclusion that a more complete list based on informa- tion contained in the Employer's files would not have been of material benefit to the Petitioner, and we reject his interpretation of our decisions in Singer and Telonic Instruments.e In Singer, the petitioning union had lost an election by a wide margin-267 votes for and 770 against representation-and the Board concluded that a list which provided only surnames and forename initials and had other inad- vertent omissions but had correct addresses was in substantial compliance with Excelsior. Here, the elec- tion results were close and the defects in the list were much more serious. In our view, the ommission of available information as to street addresses and/ or post office box numbers of eligible voters is the type of defect which can effectively remove employees from the reach of the campaign appeals of participat- ing labor organizations.' Indeed, here, as demonstrated by the Petitioner's postelection mailing which was made to test the usefulness of the Employer's list, 55 of the approximately 289 eligible voters could not be reached.10 In Telonic Instruments the employer had inadvertently omitted four eligibles from the Excelsior list (two of whom the union already knew) but supplied them before the election. The Board referred to the fact that in cases where employers had made some attempt to comply strictly with its requirements, Excelsior was not mechanically applied. The Board pointed out, however, that an inaccurate or incomplete list may in some circumstances furnish grounds for setting aside an election. For the reasons above set forth, we are unable to agree with the Regional Director that setting aside the election in ' N.LR.B v Beech-Nut Life Savers, Inc, 406 F 2d 253, 260 (CA 2) The Singer Company, 175 NLRB No 28; Telonic Instruments, a Division of Telonic Industries, Inc, 173 NLRB No 87 ' We note particularly that this defect in a list seriously impairs the ability of labor organizations to locate 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 11 The Regional Director stated that a substantial proportion of the 55 employees who could not be reached by this mailing had provided their addresses on authorization cards which they signed for the Petitioner We have been advised administratively that 20 of these 55 employees signed authorization cards The fact that as many as 35 employees could not have been reached if the Petitioner attempted to use the list in mailing campaign appeals indicates, in our view, that the list was substantially defective. the circumstances of this case would be a mechanical application of the rule." Finally, we reject a conclusion that Petitioner did not need the list and therefore was not entitled to a complete and correct one. This issue was discussed at length in our decision in Murphy Bonded Ware- house, Inc., supra. The considerations there set forth are equally applicable here. For those reasons and for the reasons stated in our Excelsior decision, we find that there is a need in this case for an election eligibility list containing the names and addresses of all eligible voters, to be provided by the Employer in accordance with the conditions set out below. Accordingly, we hereby sustain Objections 1 and 2, and we shall order that the election be set aside and direct a second election. ORDER IT IS HEREBY ORDERED that the election conducted herein on September 12, 1969, among the employees of Rite-Care Poultry, Inc., at its Logansport, Louisia- na, plant be, and it hereby is, set aside. [Direction of Second Election omitted from publica- tion.] " In a case such as the instant one, where the defects in the list were serious in nature , where the Petitioner promptly brought the defects to the attention of the Regional Director, where the Employer did nothing to correct them, and where they have been found to have substantially impaired the Petitioner 's ability to reach employees, we are also unable to agree with the Regional Director's view that the Petitioner was not prejudiced by the defects because it made no attempt to use the list in mailing campaign appeals Indeed, any attempt on the part of the Petitioner to use the list as a means of effectively communicating with the electorate would have been a futile act APPENDIX A (EXCERPT FROM REGIONAL DIRECTOR'S SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION) Objections 1 and 2 These objections are combined in that they both contend the Employer did not comply with the requirements of the Excelsior case.' The Employer, pursuant to the Decision and Direction of Election issued in this matter, timely submitted an Excelsior list to the Board's Fifteenth Regional Office on August 22, 1969. The Regional Office in turn made the list available to the Petitioner. The Petitioner, in 1 Excelsior Underwear, Inc, 156 NLRB 1236, NLRB v Wyman- Gordon Company 394 U.S 759 RITE-CARE POULTRY CO 43 a letter dated August 30, 1969, from its International representative, Willie Berry, objected to the list alleg- ing it did not "contain correct names" and the address- es were "incomplete." However, the letter contained, "We waive whatever rights would be granted to us at this time and ask that you proceed with the election as scheduled for September 12, 1969, reserving our rights to file proper objections at the proper time should we deem it necessary." By letter dated September 3, 1969, the Fifteenth Regional Office of the National Labor Relations Board advised counsel for the Employer of the Petitioner's objections to the list. There was no response to this letter. The Petitioner states that its objections are that the Excelsior list contained the first initial of the employees' first names and full last names on an overwhelming majority of those listed on the Excelsior list and, furthermore, the addresses of those on the list living in cities contained the name of the city only, without further information, and the addresses of those living in the country listed only the route number, without further information. In support of these objections, and as proof of its claim that incomplete names and addresses were prejudicial to their position, the Petitioner submitted 55 unopened envelopes which contain a letter Petition- er sent out on or about September 13 and 14, 1969, after the election to all those listed on the Excelsior list.' These 55 had been addressed using the informa- tion from the Excelsior list. This was the only mailing by the Petitioner where the Excelsior list was used.' The Petitioner did have one other mailing, but there they used addresses from the authorization cards. It should also be noted that Petitioner had more complete addresses for a substantial portion of the 55 on its own authorization cards. An analysis of these 55 returned shows that they were returned for various reasons, as set out below. The reasons shown were either checked by the Post Office or written in by the postal carrier. They are grouped by the undersigned for clarification purposes. GROUP] Reason Given: "Moved-no order." One returned: M. Harvey, Route 1, Shelbyville, Tex. GROUP2 Reason Given: "Not for route number" (number of route was shown). Four returned: B. Smith, J. Smith, A. Sudds, M. Sudds, all Route 2, Mansfield, La. GROUP3 Reason Given: "Addressee unknown"-"Insufficient address." Five returned: O. Brown, Carthage, Tex.; ' This letter advised the employees that the Petitioner intended to file objections to the election ' The Petitioner orally stated that this mailing after the election was to test or check the Evice(sior list B. A. Griffith, Tenaha, Tex.; G. Hill, Carthage, Tex.; W. Hudson, Mansfield, La.; S. Patterson, Carthage, Tex. GROUP4 Reason Given: "Addressee unknown." Eighteen returned: A. R. Brown, Logansport, La.; O. Brown, Logansport, La.; C. Canada, Mansfield, La.; L. Green, Logansport, La.; L. Jones, Route 1, Logansport, La.; R. McCraney, Route 4, Mansfield, La.; M. McPhear- son, Joaquin, Tex.; A. Mathis, Route 2, Logansport, La.; W. Morris, Joaquin, Tex.; H. Parker, Logansport, La.; A. Patton, Logansport, La.; L. E. Peoples, Route 1, Logansport, La.; H. Peques, Logansport, La.; B. Thomas, Longstreet, La.; P. Williams, Route 2, Logansport, La , E. Windham, Center, Tex.; R. Windham, Center, Tex.; O. Yarborough, Teneha, Tex. GROUP5 Reason Given: "Insufficient address." Twenty-Seven returned. A. Adkins, Mansfield, La.; J. A. Anderson, Mansfield, La.; I. Bennett, Route 3, Mansfield, La.; O. D. Brown, Route 3, Mansfield, La.; J. Byrd, Mansfield, La.; D. Copeland, Route 3, Mansfield, La.; E. Davis, Route 3, Mansfield, La.; M. Drain, Route 3, Mansfield, La.; W. E. Gilliard, Mansfield, La.; B. L. Jones, Route 1, Mansfield, La.; D. Jones, Route 1, Mansfield, La.; M. Jones, Mansfield, La.; L. Murphy, Mansfield, La.; F. Parker, Route 4, Mans- field, La.; S. Parrott, Route 2, Mansfield, La.; L. Randolph, Mansfield, La.; M. Robinson, Mansfield, La.; M. Rogers, Route 3, Mansfield, La.; C. Stanley, Route 3, Mansfield, La.; F. A. Thomas, Route 3, Mansfield, La.; T. H. Turner, Mansfield, La.(on list T. N. Turner); W. C. Turner, Mansfield, La.; D. Watson, Mansfield, La.; D. Wells, Mansfield, La.; B. N. Williams, Mansfield, La.; C. R. Williams, Route 1, Logansport, La.; L. Windham, Center, Tex. As Petitioner points out, there are seven pairs of individuals on the Excelsior list with identical first initials and identical last names. They are as follows: L. Brown, Logansport, La. and L. Brown, Logansport, La.; O. Brown, Carthage, Tex. and O. Brown, Logansport, La.; D. Jones, Route 1, Mansfield, La. and D. Jones, Route 1, Mansfield, La.; C. Thomas, Route 1, Joaquin, Tex. and C. Thomas, Logansport, La.; D. Whitaker, Route 1, Grand Cane, La. and D. Whitaker, Route 1, Grand Cane, La.; N. Wilson, Logansport, La. and N. Wilson, Route 1, Longstreet, La.; R. Windham, Center, Tex. and R. Windham, Route 2, Joaquin, Tex. The letters to both persons designated O. Brown came back. One of the envelopes was marked "Addressee unknown-insufficient address." The other was marked "Addressee unknown." The R. Windham letter sent to Center, Texas, was returned with the notation "Addressee 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unknown," and one of the D. Jones envelopes was returned marked "Insufficient address." In addition, a comparison of the names and address- es listed in the five groups set out above to the Excelsior list shows that there are many instances where there are more than one person with the same family name, though with different first initials. The Assistant Postmaster-In-Charge at the Mansfield, Louisiana, Branch Office of the United States Post Office, a Mr. Campbell, stated that a complete first name would help in delivering mail only if the particu- lar postman who services the route has personal knowledge of where the person receives his mail. According to him, many of the people concerned received their mail in other persons' mail boxes and because of this there is no record of their names or initials with the Post Office Department. The Employer states that it requires each applicant for employment to complete a form that has a blank space for insertion of the applicant's full name and a blank space for the applicant to fill in his full present address. Though requested to do so, the Employer did not make these forms available during the course of the investigation. The Employer stated that he wasn't sure what clerk made up the list or from what the list was compiled. However, Plant Manager Kaiser Wright orally stated that he was quite sure the forms contained whole names and not first initials. Also, the eligibility list submitted by this same Employer on December 12, 1967, for use in Case 15-RC-3787, revealed that whole first names were available to the Employer at that time and at least 85 persons from that list also appeared on the list in the instant case. Thirteen envelopes containing campaign literature which had been mailed by the Employer were submit- ted by the Petitioner and Petitioner's witnesses, and all of these thirteen envelopes had complete names of employees. Additionally, one unit employee stated that she received campaign literature from the Employer addressed to her with her name in full. The Petitioner's postelection mail to her was returned with the address as written on the list. The only difference in the two envelopes is the spelling out of the entire first and middle names. Two other unit employees with identical first initials and last names received campaign mail from the Employer when their names were spelled out in full, but the Petitioner's postelection mail for one of them was returned where only the first initial and last name was used. The Employer presented 42 envelopes containing campaign literature that had been mailed by it on September 8, 1969, using the Excelsior list names and addresses and which had been returned by the Post Office. However, many employees stated during the investigation that they had mail handed them at work which had been returned to the Employer by the Post Office Department. A total of 14 employ- ees stated that at the time they filled out their applica- tion forms, they indicated a Post Office box number at which they received their mail. None of these 14 had a box number next to their name on the Excelsiorlist. None of these 14 employees had changed addresses since filling out their application forms. In addition, at least 20 of the names appearing both on the list in the aforementioned 15-RC-3787 and on the eligibility list in this case had a box number beside their name in the other case but not in this case. There is some evidence, as shown above, that the Employer did not always use the same addresses as that furnished to the Petitioner, and used, at least in some mailings, complete names and addresses that were not supplied to the Petitioner. One witness for whom no full name or box number was supplied on the list produced two envelopes containing cam- paign literature mailed by the Employer and received by her addressed with a full name and post office box number. Mail sent to her by Petitioner after the election using the Excelsior list was returned. The Petitioner had this employee's complete address on an authorization card. Ten other witnesses for whom no post office box number was supplied on the list and who stated that they filled in the application form with a post office box stated that they received mail from the Employer with their post office box number on the envelopes. The Company also sent campaign mail to a unit employee who was not on the list. While the foregoing demonstrates that the Employer did indeed have and use full names for most employees and had and used more complete addresses for an undisclosed number of employees, it is not shown that had the Employer furnished the more complete information it would have been of material benefit to the Petitioner. The Petitioner made no mailing of campaign literature on the basis of the list furnished and therefore was not prejudiced by the inadequacy of the list. In the Singer Company, 175 NLRB No. 28, the Board refused to set an election aside even though it found that the employer used full names and more accurate information than that which it had furnished to the Union. The Board stated "the Excelsior rule requires that an employer furnish a list containing all information necessary, for expedi- tious communication , and, in other circumstances, we might well find the failure to provide full first names to be violative of those requirements. However, in the instant case, the record indicates that the RITE-CARE POULTRY CO supplying of full first names would not have been of material benefit in assisting delivery of Petitioner's communications." And in Telonic Instruments, A Divi- sion of Telonic Industries, Inc., 173 NLRB No. 87, the Board indicated that the Excelsior rule will not be mechanically applied where an employer has "made some attempt" to comply. It would indeed be a mechanical application of the rule of Excelsior to hold that a union can have an election set aside because of a partially defective list where it did not use the list to communicate with eligible voters prior 45 to the election and where it had the information on its authorization cards to correct a substantial portion of the 55 incorrect addresses. The Petitioner in this case did not use the list for purposes which led to the Excelsior rule, but seeks to use it as a technical reason to have an election set aside. Based upon these facts, the undersigned finds that Petitioner's Objections 1 and 2 do not raise substantial or material issues affecting the results of the election. Accordingly, Objections 1 and 2 are overruled.