Woodman's Food Markets

WOODMAN’S FOOD MARKETS 503 Woodman’s Food Markets, Inc. and United Food & Commercial Workers Union Local 1444, Char- tered by the United Food & Commercial Work- ers International Union, AFL–CIO, CLC, Peti- tioner. Case 30–RC–5935 September 29, 2000 DECISION AND ORDER REMANDING BY CHAIRMAN TRUESDLAE AND MEMBERS FOX, LIEBMAN, AND HURTGEN The National Labor Relations Board has considered objections to an election held on September 25, 1997, and the hearing officer’s report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 36 for, and 49 against the Petitioner, with 7 chal- lenged ballots,1 an insufficient number to affect the re- sults of the election. Having carefully reviewed the entire record, including the Employer’s exceptions and brief, we adopt the hear- ing officer’s findings and recommendations only to the extent consistent with this decision.2 The issue in this case is whether the Employer’s omission of names of eligible voters from its Excelsior3 list is grounds for set- ting aside the election. As the Board has recently held, “employees have a Section 7 right to make a ‘fully- informed’ choice in an election, and . . . the purpose of the Excelsior rule is to protect that right.”4 Given this critical purpose of the Excelsior list, we have reexamined our case law on this issue. As explained below, we find that, in determining whether an employer has substan- tially complied with the Excelsior requirements, the Board must consider not only the number of names omit- ted from the Excelsior list as a percentage of the elector- ate, but also other factors, including the potential preju- dicial effect on the election as reflected by whether the omissions involve a determinative number of voters and the employer’s reasons for omitting the names. On September 8, 1997, the Employer submitted an Ex- celsior list containing the names of employees eligible to vote. It is undisputed that the names of 12 eligible em- ployees were omitted from that list. Four of these names were omitted based on the Employer’s admittedly incor- rect interpretation of the payroll eligibility requirement. As for the remainder of the omitted names, the only ex- planation given in the record is by the Employer’s human resources representative, Kathy Klein, who testified that “[i]t could have been [the result of] errors within the pay- roll department.” 1 The seven ballots, challenged by the Board agent because the vot- ers’ names did not appear on the Excelsior list, were cast by Michael Fisher, Sirajul Jackson, David Keesey, Theresa Keesey, Kelly Kreuser, Rae-Ann Lass, and Jacob Zizzo. 2 In the absence of exceptions, we adopt pro forma the hearing offi- cer’s recommendation to overrule the Union’s Objection 3. Objections 1, 2, 5, and 6 were withdrawn prior to the hearing. 3 Excelsior Underwear, 156 NLRB 1236 (1966). 4 Thiele Industries, 325 NLRB 1122 (1998). On or about September 21 or 22, the Employer sent another list which deleted the names of some employees who had been terminated since the September 8 list. The September 21 list still omitted the 12 eligible employees. At the election, the Board agent challenged the ballots of 19 voters because their names were not on the Excel- sior list. Before the tally of ballots, the parties resolved 12 of these challenges: they agreed that 7 voters5 were ineligible and that their ballots would not be counted and that 5 voters6 were eligible and that their ballots would be opened and counted. Seven challenged ballots re- mained unresolved: five of them were cast by Michael Fisher, Sirajul Jackson, Kelly Kreuser, Rae-Ann Lass, and Jacob Zizzo, part of the group of 12 employees whose names were omitted from the list. The remaining two unresolved challenged ballots were cast by David Keesey and Theresa Keesey, whose names were not in- cluded on the Excelsior list apparently because the Em- ployer believed that they were statutory supervisors. At the hearing, the parties stipulated that the following 12 eligible voters were omitted from the Excelsior list: Sirajul Jackson, Rae-Ann Lass, Tara McGraw, Brenda Rasibeck, Christopher Schenck, Mark Smith, Jennifer Vargas, Jacob Zizzo, Kelly Kreuser, Lena Haslage, Mi- chael Fisher, and Mark Neeson.7 The parties also stipu- lated that these 12 omissions constituted 6.8 percent of the eligible voters.8 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 Director of an election agreement or after a Direction of Election, and no extension of time is granted except in extraordi- nary circumstances. Excelsior Underwear, 156 NLRB 1236 (1966). The Excelsior rule is not intended to test employer good faith or “level the playing field” between 5 The seven were Fashawn Brown, Jenny Flaig, James Ludwin, Jer- emy Moore, Tony Retana, Nicholas Shear, and Cynthia Winburn. 6 The five were Josh Cairo, Lena Haslage, Mark Nelson, Chris Schenck, and Jennifer Vargas. 7 The parties also stipulated that 16 employees listed on the Excel- sior list had severed their employment before the submission of the list and were thus ineligible voters. 8 The hearing officer rejected this stipulation and found that there were in fact 34 names omitted and thus the percentage of names omit- ted was 20.7 percent. Based on this higher percentage, the hearing officer further found that the Employer acted in bad faith. We do not rely on these findings of the hearing officer. 332 NLRB No. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 504 petitioners and employers, but to achieve important statu- tory goals by ensuring that all employees may be fully informed about the arguments concerning representation and can freely and fully exercise their Section 7 rights. Mod Interiors, Inc., 324 NLRB 164 (1997), citing North Macon Health Care Facility, 315 NLRB 359, 360–361 (1994). Accordingly, the Board requires that the infor- mation in the Excelsior list be not only timely but com- plete and accurate so that the union may have access to all eligible voters. In deciding whether an employer’s noncompliance with the Excelsior rule warrants setting aside the elec- tion, the Board has repeatedly stated that the Excelsior rule is not to be “mechanically applied.” Telonic Instru- ments, 173 NLRB 588, 589 (1968) (citations omitted). The Board, however, has also recognized that the poten- tial harm from omissions is sufficiently great to warrant an approach that encourages a conscientious effort by employers to comply with the Excelsior requirements. Thrifty Auto Parts, 295 NLRB 1118 (1989). Accord- ingly, the Board has looked to whether or not, under the circumstances of a particular case, the employer has “substantially complied” with the Excelsior require- ments. Gamble Robinson Co., 180 NLRB 532 (1970); Sonfarrel, Inc., 188 NLRB 969 (1971). In the absence of a showing of bad faith,9 this analysis has traditionally involved simply calculating the number of omissions as a percentage of the total number of eligible voters. As explained below, however, we find that this approach fails to adequately effectuate the statutory purposes un- derlying the Excelsior rule by failing to also consider other factors. The Board has consistently viewed the omission of names from the eligibility list as a serious matter because a party that is unaware of an employee’s name suffers an obvious and pronounced disadvantage in communicating with that person by any means. Women in Crisis Coun- seling, 312 NLRB 589 (1993). See also Thrifty Auto Parts, supra. Thus, the omission of names from the eli- gibility list clearly frustrates the policies underlying the Excelsior rule since the union may be denied the oppor- tunity prior to the election to inform these voters of its position on the issues raised before the election. The Board has also long recognized that the closeness of the vote is a significant factor in Excelsior cases. Ben Pear- 9 Although a finding of bad faith is not a precondition for a finding that an employer has failed to comply substantially with the Excelsior rule, the Board has held that a finding of bad faith will preclude a find- ing that an employer was in substantial compliance with the rule. North Macon Health Care Facility, supra; Bear Truss, Inc., 325 NLRB 1162 fn. 3 (1998). We agree with and reaffirm this Board policy. son Plant, 206 NLRB 532, 533 (1973); Mod Interiors, 324 NLRB at 164. Nevertheless, in applying the "substantial compliance" rule, the Board in some cases has declined to set aside the election on the ground that the number of omissions constituted only a small percentage of the total number of eligible voters, even though the number of omissions involved a determinative number of voters. See, e.g., Kentfield Medical Hospital, 219 NLRB 174, 175 (1975)(finding that omission of 5 names out of 82 eligi- ble voters, or 6%, did not warrant setting aside election notwithstanding that union lost by only 3 votes). We find that this approach10—which focuses solely on the percentage of omissions relative to the number of employees in the unit—fails to adequately effectuate the purposes of the Excelsior rule. Accordingly, while we will continue to consider the percentage of omissions, we will consider other factors as well, including whether the number of omissions is determinative, i.e., whether it equals or exceeds the number of additional votes needed by the union to prevail in the election, and the em- ployer’s explanation for the omissions. With respect to whether the omissions involve a de- terminative number of voters, we note that the Board’s Excelsior policy was designed to enhance the availability of information and arguments both for and against union representation to employees so that they might render a more informed judgment at the ballot box. Thus, the proper focus in determining whether an employer has complied with the requirements of the Excelsior rule should be on “the degree of prejudice to these channels of communication, and not the degree of employer fault.” Avon Products, 262 NLRB 46, 48 (1982). Obviously, the potentially prejudicial effect on the election is most clear where the number of omissions may have compro- mised the union’s ability to communicate with a deter- minative number of voters. To ignore this circumstance, therefore, is not only inconsistent with the rule's purpose but makes little sense. Accordingly, we overrule our prior cases to the extent they have done so and hold that whether the omissions involve a determinative number of names must be considered in determining whether to set aside the election.11 With respect to the employer’s explanation for the omissions, we note that omissions may occur, notwith- 10 Cf. EDM of Texas, 245 NLRB 934 fn. 1 (1979) (10-percent omis- sions does not constitute substantial compliance); Gamble Robinson Co., 180 NLRB 532 (1970) (11-percent omissions does not constitute substantial compliance). 11 We do not reach in this case whether the policy adopted here with respect to the omission of names should also apply to incorrect ad- dresses. WOODMAN’S FOOD MARKETS 505 standing an employer's reasonable good-faith efforts to comply, due to uncertainties about who is an eligible unit employee or other factors. Thus, we will consider the employer’s explanation for the omissions.12 Here, the percentage of omissions was relatively small and, standing alone, might not warrant setting aside the election. We find, however, that the Union may have suffered substantial prejudice by its inability to commu- nicate with these 12 employees since ballots cast by these employees could have affected the outcome of the election. We recognize that the Union lost the election by 13 votes. However, in view of the additional chal- lenged voters, David Keesey and Theresa Keesey (whose names were also omitted from the eligibility list because the Employer believed they were supervisors), the 12 omitted names could be determinative in this case. We further find that the Employer has not presented a legally sufficient justification for its omission of the 12 names. In this regard, we note that the Employer incor- rectly interpreted the payroll eligibility requirement and that the Employer’s payroll department may have com- 12 As noted above, if the employer acted in bad faith, that is the end of the inquiry, and the election will be set aside. We hold here that, absent bad faith, an employer’s explanation will be considered as a factor in the analysis. mitted errors. Although this does not show bad faith, it does show a lack of diligence and due care by the Em- ployer.13 Accordingly, we shall remand this proceeding to the Regional Director for a determination as to the Keeseys’ eligibility. If it is determined that they are ineligible, the omitted names are not determinative and the results of the election should be certified. If, however, they are eligible voters, the omission of the 12 names from the Excelsior list could have affected the outcome of the election and the direction of a second election is war- ranted.14 ORDER It is ordered that this proceeding is remanded to the Regional Director for Region 30 to investigate and de- termine the eligibility of David Keesey and Theresa Keesey and for further appropriate action consistent with this decision. 13 We also note that the Employer included on the Excelsior list the names of 16 employees who had quit prior to the Employer’s submis- sion of the list to the Regional Director. While we find that such con- duct shows a lack of diligence by the Employer in compiling the list, we find it unnecessary to rely on this conduct. 14 Under the circumstances of this case, we will not direct that the ballots of the Keeseys be opened if they are found to be eligible voters.