Days Inns of America, Inc.

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Days Inns of America, Inc. and Nortico Corporation and Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737, AFL-CIO, Petition- er. Case 12-RC-4458 January 30, 1975 DECISION ON REVIEW AND CERTIFICATION OF RESULTS OF ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On June 28, 1974, the Regional Director for Region 12 issued a Supplemental Decision on Objections, Order, and Direction of Second Election in the above-entitled proceeding, in which he sustained the Petitioner's Objection 1 and overruled the remaining objections.' Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's Supplemental Decision on the grounds that in sustaining Objection 1 he departed from precedent and made factual findings which were clearly erroneous. By telegraphic order dated August 5, 1974, the request for review was granted and the second election directed was stayed pending decision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings. Objection I alleges that the list of names and addresses of eligible voters supplied by the Employer prior to the election contained 26 incorrect addresses and therefore did not meet the requirements of Excelsior.2 The Regional Director found that 16 (13.2 percent) of the addresses of the 121 eligible voters on the list were defective. As 14 of the 16 defective addresses for the most part varied substantially from those contained in the Employer's records and the Employer produced no records to substantiate its use The election herein was conducted on April 11, 1974, pursuant to a Decision and Direction of Election and an Order Amending Decision and Direction of Election to Update Eligibility Date, issued by the Regional Director on October 12, 1973, and March 8, 1974, respectively . The tally of ballots for the election showed that , of approximately 121 eligible voters, 71 ballots were cast, of which 10 were for, and 54 against , the Petitioner, and 7 were challenged . The Petitioner filed nine numbered objections 2 Excelsior Underwear Inc, 156 NLRB 1236 (1966). , The 13 defective addresses submitted vaned from those contained in the files in the following particulars : "Rt. #" for "Rt 1" (Amick, D ), "628 W. Smith Apt #7" for "628 W South St , Apt. 7" (Bracy, H.); "218 W 216 NLRB No. 72 of the other two incorrect addresses, he concluded that submission of a list with such inaccuracies constitutes gross negligence, tantamount to omission of the names insofar as written communication with the employees is concerned, and is not substantial compliance with Excelsior. The Employer asserts that the facts do not support a finding that it was grossly negligent or acted in bad faith and that the percentage of inaccurate addresses herein is not so substantial as to constitute noncompliance with Excelsior. The Employer in its request for review stated that its motel operations are highly seasonal and that it has experienced an employment turnover rate of 500 percent in the most recent 12 months, as illustrated by the fact that 24 percent of the employees included on the Excelsior list had terminated their employ- ment prior to the election. As found by the Regional Director, the managers of the motel restaurant and cafeteria and the motel manager's secretary who typed the list derived the names of current employees from the payrolls and obtained the addresses either from application or personnel forms or by asking the employees themselves or others who knew them. The secretary testified that records were scattered. As to 13 of the 16 defective addresses of the eligible voters on the list submitted by the Employer, there were in fact significant variations from the addresses of these employees contained in the Employer's files on their application or personnel forms.3 The other three defective addresses were obtained from other sources above mentioned. As is evident, the defects in the addresses, if produced by errors in transcrip- tion, were in some cases minor and in others the result of varying degrees of carelessness . In five instances,4 the street addresses supplied were dis- tinctly different from those contained in the files, and one might speculate that those responsible for preparing the list had reason to believe the addresses in the files were stale and, as in the three cases where no record addresses were available, they may have accepted information from other sources as to current addresses which turned out to be erroneous. The Board generally will not set an election aside because of an insubstantial failure to comply with the Excelsior rule if the Employer has not been grossly Smith" for "218 W South St." (Brooks, J. A.); "Orlando, Fla " for "Apopka, Fla." (Brower, P. & Denmark, D.); "420 W Oak Rde Rd " for "420 W Oak Ridge Rd. #207" (Gilbert, D.); "918 Portage St " for "3131 Oak Ridge Rd., Bldg 9 #4" (Haus, S.); "113 Apt.o Park Ave." for "113 Apt D, Park Ave " (Johnson, V. H ); "E 7th St." for "17 S. Highland" (Jones, H.), "2026 Ornge Cnter Blvd" for "2026 Orange Center Blvd. #I" (Lampkin, C.), "700 Crestlake Dr " for "7000 Crestlake Dr." (Sharkey, J ); "147 W 15th St " for "147A E 15th St." (Shuman, D.); "2929 W Oakridge Rd " for "4422 Banneka St." (Slaughter, H.). 4 Haus, S.; Jones, H., Slaughter, H.; Bracy, H.; and Brooks, J A The errors in the two last named were more likely careless typographical ones DAYS INNS 385 negligent and has acted in good faith .5 In the instant case, we note first of all that the Employer's motel operations here involved experience very high em- ployee turnover, in part because of seasonality of the operations, and in part because of the transient nature of the labor force from which it obtains its employees. As found by the Regional Director, the Employer's personnel files were chaotic and scat- tered. These are factors we must consider in assessing the Employer's compliance with our rule. We do not condone the apparent unconcern for complete accuracy exhibited in the Employer's use of initials for given names and in abbreviating and in some cases omitting portions of addresses, instead of supplying the more complete information in its files; the carelessness of its managers or the secretary who typed the list, in transcribing some of the addresses; and the evident lack of any effort to verify or proofread the typewritten list for obvious typographi- cal errors, However, these shortcomings, in our opinion, do not, without more, justify the conclusion that the Employer exercised gross negligence or exhibited bad faith in submitting the list containing the above-described inaccurate addresses. In the circumstances, we disagree with the Regional Direc- tor's conclusion that the Employer's submission of these 16 defective addresses was tantamount to omission of the names insofar as communication with the employees is concerned.6 As we do not apply the Excelsior rule mechanically, we find here that the Employer substantially complied with the rule even though 16 of the 121 addresses (13.2 percent) of eligible voters listed contained inaccura- cies.7 Accordingly, the Petitioner's Objection 1 is hereby overruled, and as all the objections have been overruled and 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 ELECTION It is hereby certified that a majority of the valid votes have not been cast for Hotel, Motel, Restau- rant Employees and Bartenders Union, Local 737, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. S West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972); The Co./ Omaha Branch d/b/a Gamble Robinson Co., 180 NLRB 532 (1970), and Lobster House, 186 NLRB 148 (1970); Fontainebleau Hotel Corporation, 181 Sonfarrel, Inc, 188 NLRB 969 (1971 ), which involved omissions of names NLRB 1134 (1970). and addresses of eligible voters from the list , are inapposite. 6 For this reason , the cases relied upon by him, Pacific Gamble Robinson 7 See the cases cited in fn 5, supra