The Lobster House

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