NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,505, NORTH MACON HEALTH CARE FACILITY and UNITED STEELWORKERS OF AMERICA, AFL-CIO., (Oct. 26, 1994), National Labor Relations Board, (Oct 26, 1994)

NORTH MACON HEALTH CARE FACILITY and UNITED STEELWORKERS OF AMERICA, AFL-CIO.

315 NLRB No. 50.Case No. 10-RC-14442. October 26, 1994

Before Gould, Stephens, Devaney and Cohen.

Elections--Names and Addresses Rule--Incorrect, Incomplete Address.--The NLRB set aside a union representation election and ordered a second election because an employer failed to include first names on the list of all eligible voting employees in an applicable bargaining unit. The employer’s failure to provide the full first and last names of unit employees was a deviation from the Board’s policy that an employer must substantially comply with the NLRB’s rule enunciated in Excelsior Underwear, 1966 CCH NLRB ¶20,180. The employer’s deliberate deletion of the unit employees’ first names from the Excelsior list constituted evidence of a bad faith effort to impede the union’s access to eligible voters. Section 9(c).

Back reference: ¶2775.301.

From Text of Board’s Decision

The National Labor Relations Board has considered objections to an election held December 8, 1993, and the hearing officer’s report recommending disposition of them (pertinent portions of which are attached as an appendix). The election was conducted pursuant to a Stipulated Election Agreement, and the tally of ballots shows that of approximately 143 eligible voters, 57 cast valid votes for the Petitioner and 71 cast votes against the Petitioner. There were six challenged ballots, a number insufficient to affect the results.

The Board has reviewed the record in light of the exceptions and briefs and adopts the hearing officer’s findings and recommendations only to the extent consistent with this decision. [1]

In Objection 10, the Petitioner contends that the Employer provided a “substantial number of incorrect and incomplete addresses for the eligible voters and refused to supply complete names of voters, thereby violating the intent of the Excelsior [2] rules, which give[] the union an opportunity to communicate with eligible voters prior to the election. This act ... destroys the laboratory conditions necessary for a free and fair election.”

The hearing officer found that the Employer provided a list of eligible voters containing 33 incorrect addresses and with employees’ last names and first initial rather than their full names. In support of its objection, the Petitioner produced the Excelsior list provided by the Employer. The Employer submitted its own copy of the Excelsior list and a copy of the computer-generated payroll records of the unit employees provided it by a management corporation and based on the Employer’s records. The payroll records included employees’ addresses and full first and last names. On the Excelsior list it provided the Union, however, the Employer had deleted the employees’ first names and supplied only the first letter of the employees’ given names. Further, nearly 23 percent of the addresses on the Excelsior list, or 33 out of 144 were incorrect.

The hearing officer recommended that the Petitioner’s objection be overruled, noting that the Board has held that it will not apply the Excelsior rule “mechanically” to set an election aside on the basis of an imperfect list, in the absence of an employer’s deliberate or grossly negligent attempt to avoid compliance with the Excelsior rule. The hearing officer found no evidence of such gross negligence or bad faith. With respect to the Employer’s use of initials rather than first names, the hearing officer found that, although the Board does not condone the practice, this shortcoming does not rise to the level of a substantial failure to comply with the rule’s requirements. [3]

In its exceptions, the Petitioner argues, in essence, that the Board’s policy of not applying the Excelsior rule “mechanically” has allowed exceptions to its strict application effectively to erode the rule, that the spirit of the rule is violated where nearly 25 percent of the addresses provided are incorrect and the full names of employees are not supplied, and that no means other than an accurate Excelsior list exist whereby a petitioner can obtain such information.

For the reasons stated below, we find merit in the Petitioner’s objections with respect to the Employer’s failure to include employees’ first names on the Excelsior list. Therefore, we set aside the election and order that a second election be scheduled. [4] Further, we hold that the an [sic] employer’s failure to provide the full first and last names of employees is a deviation from the Board’s policy that an employer must “substantially comply” with the Excelsior rule and tends to interfere with a free and fair election. Although bad faith is generally not relevant in this area, under the particular circumstances of this case, we also find that the Employer’s deliberate deletion of the unit employees’ first names from the list provided by its management company is evidence of a bad-faith effort to impede the Petitioner’s access to eligible voters and thus to avoid its responsibilities under Excelsior.

Our analysis begins with the Board’s holding in Excelsior itself. In that case, the Board determined that objection based on the employers’ denial of the petitioners’ requests for the names and addresses of eligible voters raised grave questions respecting the administration of the Act. In response, the Board established

a requirement that will be applied in all election cases. That is, within 7 days [after the approval of an election agreement or the direction of an election], an employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. [5]

The Board reasoned that the new rule was based on two fundamental bases: first, its recognition that Congress had entrusted to the Board alone the function of conducting elections

free from interference, restraint, or coercion ... [and] other elements that prevent or impede a free and reasoned choice. Among the factors that undoubtedly tend to impede such a choice is a lack of information with respect to one of the choices available. ... [A]n employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice. Accordingly, we think that it is appropriate for us to remove the impediment to communication to which our new rule is directed. [6]

Second, the Board also perceived an intensely practical necessity for the new rule. It contrasted the situation of the employer, which is assured of continuing opportunities to present its views respecting unionization to employees to that of a petitioner, “whose organizers normally have no right of access to plant premises,” [7] and therefore has no method by which it can be sure of reaching employees with its arguments in favor of representation, so that some employees might be unaware of them. The Board’s express aim in promulgating the Excelsior rule was to ensure, as far as possible, that all employees be “exposed to the arguments for, as well as against, union representation.” [8] The fact that unions might, by expending resources and energy in other ways, gain access to some, or even most, employees, was not sufficient; the Board explicitly discounted the availability of alternative means of communication with employees as a factor weighing against the requirements that employers provide a list of the names and addresses of eligible voters:

This is not, of course, to deny the existence of various means by which a party might be able to communicate with a substantial portion of the electorate even without possessing their names and addresses. It is rather to say what seems to us obvious--that the access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters. [9]

Nor was the Board moved by the arguments that requiring employers to provide such a list would be burdensome or would infringe on any employer rights. Rather, the Board reasoned:

The arguments against imposing a requirement of disclosure are of little force especially when weighed against the benefits resulting therefrom. Initially, we are able to perceive no substantial infringement of employer interests that would flow from such a requirement. A list of employee names and addresses is not like a customer list, and an employer would appear to have no significant interest in keeping the names and addresses of his employees secret (other than a desire to prevent the union from communicating with his employees--an interest we see no reason to protect). Such legitimate interest in secrecy as an employer may have is, in any event, plainly outweighed by the substantial public interest in favor of disclosure where, as here, disclosure is a key factor in insuring a fair and free electorate. [10]

The Board also rejected the argument that provision of employee names and addresses infringed on any rights of employees, e.g., their Section 7 right to refrain from union activities. The Board found that the Section 7 rights were exercised when the employee voted for or against union representation. [11]

The interpretation of the Excelsior rule adopted by the Board today with respect to employees’ names derives from the Board’s emphasis on the fundamental importance of the rule to a reasoned exercise of the Section 7 right and of the fundamentally practical nature of the rule. The Excelsior rule was not promulgated to test employer good faith, to augment other means of communication, or merely to “level the playing field” between petitioners and employers. It was imposed so that unions would have access to all eligible voters. As the Board stated, the prompt and complete disclosure of employees names and addresses is “necessary to insure an informed electorate.” [12] Under Excelsior, an employer’s failure to provide a complete and accurate list of eligible voters is an injury to employees, not just to petitioners; an incomplete or inaccurate list can effectively prevent employees from obtaining information necessary for the free and fully informed exercise of their Section 7 rights. The Board has long recognized that the rule is prophylactic, so that “[e]vidence of bad-faith and actual prejudice is unnecessary because ... the potential harm from list omissions is deemed sufficiently great to warrant a strict rule that encourages conscientious efforts to comply.” [13]

Thus, we find that, in ruling that employers must provide the names and addresses of eligible voters, the Board intended that employers provide the employees’ full names. There is no language in the Excelsior decision that even suggests that an employer has “substantial[ly] compli[ed]” with the rule where the employer has deliberately deleted the employees’ first names in working up the Excelsior list from its payroll or other records. Consequently, we find that the Employer here was not in “substantial compliance” with the Excelsior rule, and we clarify the “substantial compliance” standard accordingly. Further, although, as noted above, a finding of bad faith is not a precondition for the conclusion that an employer has failed to comply substantially with the rule, we shall view the submission of an Excelsior list containing only last names and first initials as evidence of a bad-faith effort to avoid the obligations the Excelsior rule imposes. [14]

We further find that, based on our administrative experience in the area of representation elections, retroactive application of our clarification of the Excelsior rule will further the purposes of the Act. See Deluxe Metal Furniture Co., 121 NLRB 995, 1006-1007 (1958) (“the judicial practice of applying each pronouncement of a rule of law to the case in which the issue arises and to all pending cases in whatever stage is traditional and, we believe, the wiser course to follow”). See also Iron Workers Local 3 v. NLRB, [108 LC ¶10,431] 843 F.2d 770 (3d Cir. 1988) (per curiam) (approving retroactive application of Deklewa rules regarding 8(f) collective-bargaining agreements), enfg. John Deklewa & Sons, [1986-87 CCH NLRB ¶18,549] 282 NLRB 1375 (1987), cert. denied [110 LC ¶10,805] 488 U.S. 889 (1988).

Contrary to our dissenting colleague, we find no circumstances here sufficient to overcome the Board’s presumption in favor of retroactivity. As discussed above, application of the rule that an Excelsior list must include employees’ full names serves important statutory goals by ensuring that all employees are fully informed about the arguments concerning representation. It would be anomalous for the Board to certify results of elections conducted without compliance with the Excelsior rule as set forth herein, after the Board has found that such elections do not ensure that employees are fully informed about the arguments concerning representation and thus are not able to exercise fully their Section 7 rights.

Nor do we agree with our dissenting colleague’s argument that employers would be prejudiced by the retroactive application of our holding. In practical terms, retroactive application will require that a second election be held, and that the employer provide an Excelsior list containing full names prior to that election. Any burden imposed on the employer by this requirement is extremely slight. Thus, there is no indication that preparation of a list of employees which includes their full names will require employers to expend any additional time or effort. [15] Nor do we perceive any significant burden resulting from the mechanics of holding a second election. Although many employers accommodate Board elections by allowing them to be conducted on the employer’s premises and by releasing employees from duty for appropriate periods of time so that they may vote, such accommodations involve at most a minimal burden and in any event are, of course, voluntarily assumed. [16]

Although it is true that a second election may result in a certification of representative, whereas the first election did not, we decline to find prejudice to employers on that basis. Any certification of representative that may result from the holding of a second election would occur only if a majority of unit employees currently desire representation. It would be inconsistent with the Act’s animating principles to find that an employer is prejudiced by the Board’s recognition of employee choice under these circumstances.

Thus, the Board finds that the election must be set aside and a new election directed.

[Dissent]

Member Cohen, dissenting: My colleagues have made a change in the law and in established practice, and they have applied the change retroactively. In my view, assuming that the change is warranted--an issue that I do not reach in this case--this retroactive application is fundamentally unfair to the Employer who relied on then-extant law and practice. Accordingly, I dissent.

The Supreme Court has set forth three factors to be considered in determining the legality of a retroactive application of a change in law. Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). These factors are: (1) whether the decision that is to be applied retroactively establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression; (2) the effect of retroactivity on accomplishing statutory objectives; and (3) the inequity imposed by retroactive application.

With respect to the first factor, the law was clear that an employer complied with Excelsior requirements even if the employer gave only first initials and last names of employees, rather than full names. [17] Indeed, my colleagues candidly concede that “the contrary holdings in St. Francis” are to be “overruled.” Thus, the law was clear, and it is being changed.

With respect to the second factor, I do not believe that a “full name” requirement is a necessary ingredient for the accomplishment of a statutory purpose. My colleagues assert that a “full name” requirement will give unions greater access to employees and will result in a better-formed electorate. Assuming arguendo that the new requirement will help to achieve these goals, this is not to say that the statutory purpose has been unfulfilled in the past. There is no showing that the prior rule led to the destruction of “laboratory conditions” for the conduct of elections. Indeed, the Board has conducted elections, without the “full name” requirement, for 28 years under Excelsior. There is no suggestion that these elections have been invalid, i.e., that they have not been held under laboratory conditions.

Finally, as to the third factor, the imposition of the new rule is patently unfair to the Employer. The Employer relied on then-extant law, and the Petitioner lost the election. My colleagues now change the law and take that result away. [18] Moreover, my experience compels the conclusion that the Employer’s failure to include full names was in no way determinative of the outcome of the election. Thus, even if my colleagues wish to impose a “full name” requirement, there is no reason to upset the election here. If my colleagues wish, as a matter of policy, to change the Excelsior rule by requiring full names, they could accomplish that change by other means. For example, in Shepard Convention Services, [1993-94 CCH NLRB ¶15,394] 314 NLRB No. 115, fn. 3 (Aug 3, 1994), my colleagues denied as premature a preelection challenge to the use of initials. They could have simply included a “full name” requirement in their preelection order. [19] Instead, they now overturn an accomplished election result and put the parties and employees through another election. [20] I therefore dissent.