Mod Interiors

164 324 NLRB No. 33 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In the absence of exceptions, we adopt, pro forma, the Acting Regional Director’s recommendation to overrule the Petitioner’s Ob- jection 3. 2 There is no evidence or contention that the inaccuracies on the original voter eligibility list were the result of Employer gross neg- ligence or intentional misconduct. The Employer supplied the most recent information it had in its possession. Mod Interiors, Inc. and Interior Systems Local 1045, United Brotherhood of Carpenters and Joiners of America, AFL–CIO, Petitioner. Case 7–RC–20952 August 7, 1997 DECISION AND DIRECTION OF A SECOND ELECTION BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS The National Labor Relations Board has considered objections to an election held December 12, 1996, and the Acting Regional Director’s report recommending disposition of them. The election was conducted pursu- ant to a Stipulated Election Agreement. The tally of ballots shows 4 for and 5 against the Petitioner, with 1 challenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief and adopts the Acting Regional Director’s findings and recommendations1 only to the extent consistent with this decision. As found by the Acting Regional Director, on No- vember 25, 1996, the Employer provided an alphabet- ized list containing the names and addresses of 10 em- ployees. On December 2, the Petitioner notified the Regional Office that 4 of the 10 addresses on the Ex- celsior list were incorrect.2 On December 4, 8 days be- fore the election, the Regional Office received a cor- rected list and the list was faxed to the Petitioner the same day. In its exceptions, the Petitioner argues that the election should be set aside because of the large number of incorrect addresses and the closeness of the election. We find merit in this exception. Under the Board’s Excelsior rule, an employer must file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Di- rector of an election agreement or after a Direction of Election and no extension of time is granted except in extraordinary circumstances. Excelsior Underwear, 156 NLRB 1236 (1966). It is extremely important that the information in the Excelsior list be not only timely but complete and accurate so that the union may have ac- cess to all eligible voters. The Excelsior rule is not in- tended to test employer good faith or ‘‘level the play- ing field’’ between petitioners and employers, but to achieve important statutory goals by ensuring that all employees are fully informed about the arguments con- cerning representation and can freely and fully exercise their Section 7 rights. North Macon Health Care Facil- ity, 315 NLRB 359, 360–361 (1994). In all the cir- cumstances of this case, we are not satisfied that the Employer has substantially complied with the require- ments of the Board’s Excelsior rule. Forty percent of the addresses on the original list were inaccurate and the corrected list was received by the Petitioner for use in its informational campaign only 8 days before the election. Thus, for a week following the date the eligi- bility list was originally due, Petitioner was unable to communicate with nearly half of the unit employees, thus effectively preventing them from obtaining infor- mation necessary for the exercise of their Section 7 rights. In an election, such as this one, decided by a close margin, this lack of information may have im- peded a free and reasoned choice. The dissent suggests that there is no support for our statement that the incorrect addresses prevented effec- tive communication by the Petitioner. The issue of a union’s access to employees is irrelevant to the appli- cation of the Excelsior rule. As discussed above, the Excelsior rule was adopted in the hope of insuring a ‘‘fair and informed’’ electorate, and the Board has long held that to look beyond the issue of substantial compliance with the rule and into the additional issue of whether employees were actually informed about election issues would ‘‘spawn an administrative mon- strosity.’’ Sonfarrel, Inc., 188 NLRB 969, 970 (1971). The Board has also held that a union’s ability to com- municate with employees by means other than the eli- gibility list does not influence the determination of whether the employer has substantially complied with its Excelsior duty. Thrifty Auto Parts, 295 NLRB 1118 (1989). Our dissenting colleague argues, citing the Board’s Casehandling Manual, that the Petitioner is only enti- tled to the list for 10 days. Section 11302.1 Manual (Part Two) states that an election ‘‘may not be held sooner than 10 days after’’ the Regional Director has received the Excelsior list. This provision merely di- rects that the Board will give the petitioner an oppor- tunity to make use of the list for at least 10 days be- fore conducting the election. Under the Board’s deci- sion in Excelsior, the employer must file the names and addresses of all eligible voters with the Regional Director within 7 days after approval of the election agreement. Depending on when the election is sched- uled, the petitioner is entitled to the list for signifi- cantly more than 10 days. The dissent further suggests that we are giving the Petitioner some additional ‘‘entitlement.’’ In fact, we are attempting to ensure that the Petitioner has access to the information that the Board requires the Em- ployer to provide for the entire period set forth in the Direction of Election. The eligibility list is due 7 days VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00164 Fmt 0610 Sfmt 0610 D:\NLRB\324.018 APPS10 PsN: APPS10 165 MOD INTERIORS 1 An error as to addresses is less serious than an error as to names. See Women in Crisis Counseling, 312 NLRB 589 (1993). 2 A Petitioner is entitled to the list for only 10 days prior to an election. See Casehandling Manual (Part Two), Section 11302.1. My colleagues assert that the Petitioner was ‘‘entitled’’ to the list from November 27 until December 12, about 2 weeks. There is no support for this view. The only entitlements are: (1) The Region is entitled to the list 7 days after the direction or stipulation of election, and the Region should immediately send it to the petitioner; (2) the election will not be held sooner than 10 days after Regional receipt of the list. Because the Board controls the timing of the election, the Board can effectively choose to give the petitioner more than 10 days of usage of the list. But this is not to say that the petitioner is ‘‘entitled’’ to more than 10 days. 3 My colleagues assert that, prior to the supplying of the four cor- rect addresses, the Union ‘‘was unable to communicate’’ with the four employees. There is no support for this assertion. We know only that the Employer did not supply correct addresses. Contrary to the assertion of the majority, I am not asking the ques- tion of ‘‘whether employees were actually informed about election issues.’’ Rather, I ask only whether the Union had the ability to in- form employees about these issues. As stated above, the Union has not established that it lacked such ability. My colleagues assert that the ability to inform employees is not the issue. I agree that where an employer does not furnish an Excel- sior list, the election is to be set aside without further inquiry. How- ever, where, as here, the employer does furnish a list, the issue is one of ‘‘substantial compliance.’’ In resolving that issue, I would consider, inter alia, whether the union had the ability to commu- nicate with the employees. Thrifty Auto Parts, 295 NLRB 1118 (1989), is not to the contrary. At most, that case holds that the Board will not inquire into whether omitted employees in fact garnered in- formation about election issues, e.g., from other sources. As noted above, I do not ask whether employees were actually informed; I ask whether the union had the ability to inform. after the direction of the election. Section 11312.1 of the Casehandling Manual (Part Two). The Petitioner is entitled to receive the list as soon as it is filed. While it is true that the Region might issue the Direction of Election at a later date resulting in a later due date for the eligibility list, the fact remains that the Direction of Election is the trigger event determining when the list is due. In this case, it is undisputed that a complete and accurate list was due on November 27. The elec- tion was scheduled for December 12, and the Peti- tioner did not receive accurate addresses for 40 percent of the unit until December 4. Thus, if the Employer had met its obligation under Excelsior, the Petitioner would have received a complete and accurate list by November 27 and been able to use that list from No- vember 27 until the December 12 election, a period of approximately 2 weeks. Our dissenting colleague would also obligate the pe- titioner to seek a delay of the election to cure the em- ployer’s objectionable conduct. Neither the Board’s rules nor its decisions compel such an action. Excelsior imposes a duty on the employer and provides that the employer’s failure to comply with the rule is grounds for setting aside the election whenever proper objec- tions are filed. We see no reason to require the peti- tioner to choose between a prompt election and an ac- curate Excelsior list when the employer’s compliance with the rule would have avoided the problem in the first place. In these circumstances, where the original list con- tained a significant number of inaccurate addresses and the corrected list was only available to the Petitioner for 8 days before the election, we find that the Em- ployer has not substantially complied with the Excel- sior requirements. Accordingly, the election must be set aside and a new election directed. [Direction of Second Election ommitted from publi- cation.] MEMBER HIGGINS, dissenting. I agree with the Regional Director that the Petitioner has not established a basis for setting aside the elec- tion. On November 20, the Regional Director directed an election. On November 25, 1996, the Employer timely submitted an Excelsior list. On December 2, the Peti- tioner told the Regional Office that four addresses were incorrect. There is no contention or evidence that the incorrect addresses were due to intentional mis- conduct or bad faith on the part of the Employer. The Regional Office apprised the Employer of the problem, and the Employer promptly secured and furnished the correct addresses. The Petitioner received the correc- tion on December 4. The election was set for Decem- ber 12, and the Petitioner did not ask for a postpone- ment. The Regional Director overruled the objection and I would affirm that decision. In this regard, I note: (1) the only error was with respect to addresses, not names;1 (2) the error was not intentional or in bad faith; (3) the Employer acted promptly to secure and provide the correct addresses; (4) the Petitioner did not ask for a delay in the election; (5) the Petitioner had the accurate information for 8 days.2 In these circumstances, and absent controlling au- thority, I would not reverse the reasoned judgment of the Regional Director.3 VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00165 Fmt 0610 Sfmt 0610 D:\NLRB\324.018 APPS10 PsN: APPS10