Dr. David M. Brotman Memorial Hospital

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dr. David M. Brotman Memorial Hospital andService and Hospital Employees Union, Local 399, SEIU, AFL-CIO, Petitioner. Case 31-RC-2784 April 28, 1975 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a Stipulation for' Certification Upon Consent Election approved on July 11, 1974, by the Regional Director for Region 31 of the National Labor Relations Board, an election by secret ballot was con- ducted on July 18, 1974, under his direction and super- vision, among employees in the stipulated unit. After the election, each party was furnished with a tally of ballots which showed that, of approximately 976 eligi- ble voters, 729 cast ballots, of which 277 were for Peti- tioner, 409 were against, 35 were challenged, and 8 were void. The challenges are insufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to the election. In accordance with National Labor Relations Board Rules and Regulations, the Regional Director con- ducted an investigation and, on October 9, 1974, issued and served on the parties his Report on Objections and Challenged Ballots, in which he recommended that Ob- jection 1 be sustained,' that Objections 2 through 8 be overruled, that the election be set aside, and that a second election be directed. Thereafter, the Employer filed timely exceptions to the Regional Director's re- port and a supporting brief, and the Petitioner filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding 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 concerning the representation of 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 the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: I The relevant portion of the Regional Director's report dealing with Objection 1 is attached as an appendix All employees of Dr. David M. Brotman Memorial Hospital at its location at 3828 Hughes Avenue, Culver City, California; excluding all physicians, registered nurses, occupational thera- pists, clinical laboratory technologists, pharma- cists, the accountant, and all other professional employees; employees of the Personnel Depart- ment, secretaries to heads of major departments, and all other managerial or confidential em- ployees; guards and supervisors as defined in the Act. 5. The Board has considered the Regional Director's report, the Employer's exceptions, and the entire re- cord in the case, and adopts the Regional Director's report only to the extent consistent herewith.2 Petitioner's Objection 1 alleged that the list of eligi- ble voters and their addresses provided by the Em- ployer failed substantially to comply with the require- ments set forth in the Excelsior Underwear decision3 and that the Employer, at times subsequent to the sub- mission of the original list, refused requests to provide updated information in its possession. The list contained 967 names of which 5 were im- properly included. The Regional Director found that 117 addresses were incorrect; these inaccuracies con- stituted 12 percent of the list. It is not disputed that the Employer provided the best information available to it at the time the list was compiled. Subsequently, the Employer obtained 20 address corrections. The Board agent contacted the Employer's attorney in an attempt to secure the more current information and preclude possible objections to the election, but the latter de- clined to provide it unless the agent could inform him of any precedent or rule requiring that he do so. The Regional Director found that the erroneous in- clusions and incorrect addresses in the list supplied did not constitute a substantial failure to comply with the requirements. He did conclude, however, that the Em- ployer's refusal to provide the updated material on re- quest was in bad faith and, consequently, that the Em- ployer had not substantially complied with the spirit of the Excelsior decision. Accordingly, he recommended that Objection 1 be sustained and the election be set aside. Where, as here, it has been brought to the Board agent's attention that the Excelsior list contains a num- ber of incorrect addresses, and the Board agent makes a specific request of the Employer that the list be up- dated with any new corrected addresses now in the possession of the Employer, such request should be honored. The basis of the Excelsior decision was that Z In the absence of exceptions thereto, we pro forma adopt the Regional Director's recommendations that Objections 2 through 8 be overruled. 3 Excelsior Underwear Inc, 156 NLRB 1236 (1966). 217 NLRB No. 89 DR. DAVID M. BROTMAN MEMORIAL HOSPITAL the disclosure of names and addresses of all eligible voters would maximize the likelihood that all voters will be exposed to all arguments for, as well as against, union representation. A refusal to divulge newly secured information to the Board agent with respect to incorrect addresses previously submitted cannot be reconciled with the intent and purpose of the Excelsior rule. We are not holding that the Employer is obligated to investigate and secure additional information. While we agree with the Regional Director that the information should have been furnished to the Board agent as part of compliance with the Excelsior rule, we do not agree that setting aside the election is warranted on the particular facts of this case. The Board has stated that the Excelsior rule is not to be mechanically app lied4 and has frequently refused to set an election aside because of an insubstantial failure to comply therewith.' There is no question of gross negligence or of bad faith involved in the preparation of the list that was timely submitted. The number of corrected ad- dresses that the Employer could have corrected on in- formation in its possession would represent approxi- mately 2 percent of the eligible voters. We do not find that its failure to do so would likely have materially hampered the Union's ability to contact employees. As the tally of ballots shows that the Union has not received a majority of valid votes cast in the election, and as the challenged ballots are insufficient in number to affect the results, we shall certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid votes have not been cast for Service and Hospital Employees Union, Local 399, SEIU, AFL-CIO, in the election held herein, and that said Union is not the exclusive representative of the employees in the unit found ap- propriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER JENKINS, dissenting: The Board's Excelsior rule6 is not some purposeless exercise that we require an employer to perform. Rather, the rule's purpose and intent is to insure that, in a National Labor Relations Board election, all voters will receive maximum exposure to the arguments, both 4 Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB 588,589 (1968), Program Aids Company, Inc.,. I63 NLRB 145, 146 (1967) 5 West Coast Meat Packing Company, Inc, 195 NLRB 37 (1972), The Lobster House, 186 NLRB 148 (1970), Fontainebleau Hotel Corp., 181 NLRB 1134 (1970). 6 Excelsior Underwear, 156 NLRB 1236 (1966) 7 West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972); The Lobster House, 186 NLRB 148 (1970), Fontainebleau Hotel Corp., 181 NLRB 1134 (1970); Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB 588 (1968) 559 for and against, union representation. In applying the rule, the Board has long recognized that occasional errors will occur in the preparation of such lists and, in acceptance of this fact, we have as a matter of policy declined to set elections aside on this basis where the errors were insubstantial in nature and it was evident that the employer had acted in good faith in attempting to comply with our requirements. By the same token, we' have always, in such cases, recognized that even insubstantial errors should not be excused where they are the product of the employer's gross negligence or deliberate bad faith.' Here, the Excelsior list submitted by the Employer had 122 inaccuracies of one kind or another involving 12 percent of the names on the list. While the initial list was prepared on the basis of the best information avail- able to the Employer at that time, it is undisputed that thereafter the Employer obtained 20 address correc- tions which it refused to make available to the Board even though the information was specifically requested by us. My majority colleagues recognize the Employer's obligation to honor such a request from the Board and accept the fact that the Employer's deliberate with- holding of such information constitutes a failure to comply with our Excelsior rule. Yet they excuse this breach of the rule on grounds that the information withheld had a insubstantial effect on the election. Such an interpretation of our Excelsior rule has never been the law until today and I seriously question whether we can expect the same degree of compliance with our rule after tacitly accepting a deliberate and major breach of its requirements. For the reasons stated, I would adopt the Regional Director's recommendation that Petitioner's Objection 1 be sustained and direct that a second election be conducted. APPENDIX OBJECTION 1 1. The Excelsior list submitted by the Employer failed to substantially comply with the require- ments as set forth in the Excelsior Underwear de- cision. More specifically, the list contained inclu- sion of numerous supervisors and other persons ineligible to vote pursuant to the Stipulation for Certification Upon Consent election as well as im- proper addresses for a substantial portion of the bargaining unit employees contained on the list. Moreover, despite the fact that the inappropri- ateness of the Excelsior list was called to the atten- tion of the Employer (both by oral conversations and by carbon copy of a letter, dated July 9, 1974, 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addressed to Harry C. Kessel, Board Agent), the Employer did not take any affirmative steps to transmit a more accurate list to the Petitioner. However, Petitioner has subsequently been made aware that a more accurate list was, in fact, com- piled by the Employer and utilized for its own pre-election purposes. It should be noted that the Union did engage in a door-to-door campaign and therefore the inap- propriateness of the Excelsior list seriously ham- pered and affected the Union's organizing drive. More specifically, considerable time was spent in contacting persons contained on the inappropriate Excelsior list, who were not, in fact, eligible to vote. Similarly many eligible bargaining unit em- ployees were not contacted by the Petitioner due to the fact that no current address was available. Based upon the foregoing, it is contended that the failure to substantially comply with the re- quirements set forth in the Excelsior Underwear decision had a substantial effect on the election and the Petitioner's ability to communicate with bargaining unit employees. The Employer's Excelsior list, containing approxi- mately 967 names and addresses, was timely received by the Region on June 17, 1974, and forwarded to the Petitioner the next day. This information was taken by the Employer from a computer list of approximately 1300 employees. The information furnished by the computer is based upon original records in the Person- nel Department and the computer list is used by the Employer to file Federal and State, withholding tax reports. All employees are required to furnish their current address at the time of hire on a W-4 form, but unless an employee notifies the Employer of subsequent changes, the information in the computer remains as originally programmed. Prior to May 1974, in orienta- tion meetings during the first month of employment, employees were requested to keep the Hospital ap- prised of address changes. In early May 1974, an em- ployee handbook was issued to all employees contain- ing the same request. The investigation disclosed that the Petitioner, in various mailings of literature to em- ployees on the list, supplied by the Employer, had ap- proximately 66 envelopes returned by the U.S. Postal Service as "Undeliverable," and 57 were returned by the Postal Service with address changes. Petitioner also discovered through house calls that an additional 51 addresses were incorrect. The 117 uncorrected inac- curacies constituted 12% of the list. The Employer used the same list to make mailings-of campaign litera- ture to the employees. After the first 5 of these mail- ings, the Employer had received as many as 50-60 let- ters returned as "undeliverable." The Employer attempted to correct these addresses through contact with employees' supervisors, but received only about 20 corrections and received as many as 73 returns as "un- deliverable" from subsequent mailings. Petitioner, in a letter received by the Region on July 9, 1974, with a copy to Employer's counsel, contended the Excelsior list did not substantially comply with Board require- ments in that it contained the names of 10 supervisors and 76 incorrect addresses, The Employer's counsel was contacted by the Board Agent and declined to update the Excelsiorlist contending there was no Board precedent for such action. He was advised by the Board Agent that he could preclude possible objections at a later date if the Employer provided the available cor- rections to the Petitioner, however the Employer's at- torney still declined to provide available corrections unless a Board case could be cited specifically requiring such action. No such case was cited. Of the 10 employees alleged by the Petitioner in its letter to be supervisors, 5 were clearly in job classifica- tions excluded from the unit by stipulation of the par- ties. The Employer advised these 5 before the election that they were apparently ineligible and had been placed on the list inadvertently. The other 5 employees were in job classifications not excluded from the unit by the election agreement. Subsequent to the election, Petitioner submitted the names of. 68 additional em- ployees whom it believed were ineligible to vote. Of these 78 employees alleged to be ineligible by the Peti- tioner, 34 did not vote, 41 voted without challenge and 3 voted under challenge by the Petitioner. I conclude that the inadvertent inclusion of a small number of ineligible employees is not sufficient grounds upon which to overturn the election. Petitioner's con- tention, after the election, that there were large number of ineligible names on the list, is in the nature of a post election challenge, which, under established Board practice, is not entitled to consideration. Oppenheim Collins & Co., 103 NLRB 1257. Accordingly, I con- clude that the mere fact that the eligibility list included the names of certain individuals who were not eligible to vote is not alone sufficient to establish that the Em- ployer willfully and knowingly submitted a list with the fraudulent intent of affecting the Union's organizing drive or the outcome of the election. The Board gener- ally will not set an election aside because of an insub- stantial failure to comply with the Excelsior rule if the Employer has not been grossly negligent and has acted in good faith. I conclude here, however, that the Em- ployer's refusal to transmit the available, corrected ad- dresses for Petitioner's use, even though based on the lack of legal precedent -requiring the Employer to do so, was in bad faith. As I have found the Employer acted in bad faith in failing to provide address corrections on DR. DAVID M. BROTMAN MEMORIAL HOSPITAL 561 request, I conclude that the Employer has not substan- Industries, Inc., 173 NLRB 588; The Lobster House, tially complied with the letter or the spirit of the Excel- 186 NLRB 148. Accordingly, the undersigned recom- sior rule. Telonic Instruments, a Division of Telonic mends that Objection 1 be sustained.