Ridgewood Country Club

National Labor Relations Board - Board Decisions

Jan 3, 2012

357 N.L.R.B. 2247 (N.L.R.B. 2012)

RIDGEWOOD COUNTRY CLUB
357 NLRB No. 181
2247
Ridgewood Country Club and Laborers International
Union of North America, Local 78. Case 22–
RC–013161
January 3, 2012
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The National Labor Relations Board has considered an
objection to an election held on October 29, 2010,1 and
the administrative law judge’s decision recommending
disposition of that objection. The election was conduct-
ed pursuant to a Stipulated Election Agreement. The
tally of ballots showed 16 votes in favor of the Petitioner
and 20 votes against, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the judge’s findings2 and
recommendation, and finds that the election must be set
aside and a new election held.
We adopt the judge’s recommendation to sustain the
Petitioner’s objection, which alleges that the election
must be set aside based on the Regional Office’s failure
to timely provide the Petitioner with the Excelsior list of
eligible voters’ names and addresses. Under Excelsior
Underwear, Inc., 156 NLRB 1236, 1239–1240 (1966),
the employer must, within 7 days after the approval of an
election agreement or the issuance of a decision and di-
rection of election, file with the Regional Office an elec-
tion eligibility list containing the names and addresses of
all employees who are eligible to vote in the election.
Excelsior further provides that “[t]he Regional Director,
in turn, shall make this information available to all par-
ties in the case.” Id. at 1240. In a subsequent case, the
Board held that it “will give the petitioner an opportunity
to make use of the list for at least 10 days before con-
ducting the election.” Mod Interiors, Inc., 324 NLRB
164, 164 (1997).
Here, there is no dispute that the Employer timely pro-
vided the Excelsior list to the Regional Office on Octo-
ber 19. There is also no dispute that the Petitioner did
not receive the list from the Regional Office until Octo-
ber 25—just 4 days before the October 29 election.3

1 All dates are in 2010, unless otherwise indicated.
2 The judge was sitting as a hearing officer in this representation
proceeding.
3 A fax transmission sheet entered into evidence shows that the
Board agent attempted to fax the Excelsior list to the Petitioner on
October 19, but that the receiving line was “busy” and the fax did not
go through. The record evidence does not show that any further at-
tempt was made to transmit the list to the Petitioner or to its attorney
until October 25.
Accordingly, the Petitioner had the list for 6 fewer days
than the minimum required (absent waiver by the Peti-
tioner) under the Board’s 10-day rule. See Mod Interi-
ors, supra at 164. In these circumstances, we agree with
the judge that the Petitioner’s late receipt of the Excelsior
list “interfered with the purpose behind the Excelsior
requirements of providing employees with a full oppor-
tunity to be informed of the arguments concerning repre-
sentation, so that they can fully and freely exercise their
Section 7 rights.” J.P. Phillips, Inc., 336 NLRB 1279,
1280 (2001), quoting Alcohol & Drug Dependency Ser-
vices, 326 NLRB 519, 520 (1998).
The Employer argues that the judge erred in finding
merit in the Petitioner’s objection because she failed to
require the Petitioner to prove that it had been “material-
ly prejudiced” by the Region’s late delivery of the Excel-
sior list. The Employer further contends that the judge
“plainly disregarded” several steps that the Petitioner
could have taken “if it truly desired to receive [the list]
on time,” such as sending someone to the Regional Of-
fice to pick up the list or contacting counsel for the Em-
ployer to request a copy of the list. That the Petitioner
failed to take these steps, the Employer asserts, shows
that it did not truly need the list before October 25, and,
therefore, it was not materially prejudiced by receiving it
on that date.
The Employer’s arguments are without merit because
the judge applied the proper standards in deciding this
case. First, prejudice can be presumed when the list is
not received outside the minimum 10-day period. A
showing of prejudice is required only when the employer
timely files the list with the Regional Office 7 days after
the direction of election and the region fails to immedi-
ately make the list available to all parties as required by
Excelsior, but does make it available at least 10 days
before the election. See, e.g., CEVA Logistics U.S., Inc.,
357 NLRB No. 60 (2011) (although the Region did not
forward the Excelsior list to the union until 3-1/2 days
after receiving it from the employer, the union still had
full use of it for 13 days before the election). When a
party does not have a list of all eligible voters and their
addresses for at least 10 days before the election, on the
other hand, no specific showing of prejudice is required
because prejudice will exist in almost every case. In
Mod Interiors, the Board stated the rule in categorical
terms: “the Board will give the petitioner an opportunity
to make use of the list for at least 10 days before con-
ducting the election.” 324 NLRB at 164. That is why
the Board made clear in Alcohol & Drug Dependency
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2248
Services that “the Board, in comparable circumstances,
has found ‘prejudice.’” 326 NLRB at 520.4
Second, even if a showing of prejudice were neces-
sary, such a showing was made here. As detailed in the
judge’s decision, the Petitioner’s 2 employee-activists
and 25 of the 27 employees in the petitioned-for unit of
groundskeepers only spoke Spanish, while the 9 employ-
ees added to the unit at the request of the Employer did
not speak Spanish and did not work side-by-side with the
groundskeepers.5 Thus, the task of communicating with
the nine additional employees and the two groundskeep-
ers who did not speak Spanish fell to nonemployee
agents of the Petitioner who could speak a language oth-
er than Spanish. As the judge found, before the Petition-
er received the Excelsior list, it had been unable to con-
tact the nine employees added to the unit at the request of
the Employer and the two non-Spanish-speaking
groundskeepers. Even after receiving the list on October
25, the Petitioner was only able to meet with 5 of those
11 employees. Thus, despite its efforts, the Petitioner
was unable to speak with six employees during the 4
days between its receipt of the list and the October 29
election. We note that a change of only 3 votes of the 36
cast would have produced a different result in the elec-
tion.
The Employer contends that the Petitioner has failed to
show what actions it would have taken had it received
the Excelsior list sooner and, therefore, that the Petitioner
has not established that it was truly prejudiced by the late

4 The Board’s holding in Alcohol & Drug Dependency Services and
statement in Mod Interiors are, as the dissent points out, in some ten-
sion with the earlier discussions in Red Carpet Building Maintenance
Corp., 263 NLRB 1285 (1982), and Sprayking, Inc., 226 NLRB 1044
(1976). But those earlier cases were decided before the Board estab-
lished the 10-day rule in Mod Interiors and, thus, the Board analyzed
all cases involving late-provided eligibility lists in the same manner
without regard to whether all parties had the list for at least 10 days. In
fact, in Red Carpet, the union entered into a stipulated election agree-
ment that was not approved until April 7, making the eligibility list due
on April 14, which was only 9 days before the April 23 election, a fact
relied on by the Board. 263 NLRB at 1286. Moreover, in Sprayking,
the employer sent the list directly to the petitioner’s counsel who re-
ceived it in a timely manner, 13 days before the election. 226 NLRB at
1044. (We note that any employer wishing to avoid the scenario pre-
sented in this case could do the same.) Because Alcohol & Drug De-
pendency Services and Mod Interiors postdate Red Carpet, and because
we believe prejudice will exist in almost every case, we follow the
latter Board law.
5 The original petitioned-for unit consisted only of the Employer’s
27 groundskeepers. The Employer, however, requested the addition of
nine employees (mechanics, carpenters/masons, and irrigation techni-
cians) to the proposed unit. The Petitioner had no information about
these nine added employees, not even their names. Nonetheless, it
agreed to the Employer’s request, and the expanded unit described in
the October 12 Stipulated Election Agreement consisted of a total of 36
employees.
receipt of the list. The Board, however, has explicitly
rejected the view that prejudice can only be shown
through tangible evidence of specific acts that the union
planned but was precluded from undertaking because of
the late receipt of the list. Alcohol & Drug Dependency
Services, supra at 520 fn. 5. Moreover, the Employer
concedes that the Petitioner’s director of organizing testi-
fied that if he had received the list in a timely manner
“the Union would have attempted to visit the employees
over the weekend when they were more likely to be
home.” The Employer’s response, that the Petitioner
“presented no evidence that any of these employees was
home over the previous weekend,” suggests that the Peti-
tioner bore a burden of proving not only what actions it
would have taken, but that those actions would have been
successful. Imposing such a heavy burden would not be
reasonable and is not supported by any prior precedent.
For each of these reasons, prejudice was shown here.
Third, a party objecting to not receiving the eligibility
list at least 10 days before an election does not bear a
burden of proving that it took reasonable steps to obtain
the list. Rather, the claim that the objector failed to do so
is in the nature of a claim of laches, an affirmative de-
fense, and the nonobjecting party properly bears the bur-
den of proof. See Cook v. Wikler, 320 F.3d 431, 438 (3d
Cir. 2003) (“Laches is, of course, an affirmative defense
to a claim, and the party asserting it bears the burden of
proof.”).6
There is no evidence in the record suggesting that the
Petitioner did not take reasonable steps to obtain the list.
Petitioner’s counsel represented at the hearing that he
telephoned the Board agent handling the case on October
21, 22, and 25. Counsel indicated that he left voicemail
messages stating that the Petitioner had not yet received
the Excelsior list and requested that the Region provide
the list. Counsel also represented that, on October 25, he
faxed a letter to the Region making the same request,7
and the letter (together with a cover sheet confirming it
was successfully faxed to the Regional Office) was re-
ceived into evidence without objection. The letter con-
firms that counsel left “messages [with the Board agent]
beginning last week concerning an eligibility list from
the employer.” The Respondent offered no evidence
contradicting the evidence or the representations.
Finally, a party that does not receive the list in a timely
manner is not required to request that the election be de-

6 In the two cases the dissent cites relating to this issue, Sprayking
and Red Carpet Building Maintenance, the Board did not discuss the
burden of proof.
7 The judge explained that Petitioner’s counsel declined Respond-
ent’s request that he formally testify about these matters because he
was not under subpoena and had no cocounsel at the hearing.
RIDGEWOOD COUNTRY CLUB 2249
layed or else risk waiving any objection based on the late
receipt of the list. The Board has made clear that “such
request is not necessary to establish prejudice.” Alcohol
& Drug Dependency Services, 326 NLRB at 520 fn. 9.8
In conclusion, we note that the recurring issue of delay
in a petitioner’s receipt of an Excelsior list from our Re-
gional Offices is addressed by the procedures set forth in
the Board’s recent proposal to amend its rules and regu-
lations governing the filing and processing of representa-
tion petitions. See CEVA Logistics U.S., Inc., 357 NLRB
No. 60 (2011) (discussing 76 F.R. 120 (June 22, 2011)).
The proposed amendments would require that the em-
ployer serve the Excelsior list on the other parties elec-
tronically at the same time it is filed with the Board’s
Regional Office, thus eliminating this potential source of
delay and resulting litigation.9
[Direction of Second Election omitted from publica-
tion.]

MEMBER HAYES, dissenting.
After losing the October 29, 2010,1 election by a mar-
gin of 16–20, the Petitioner now asks the Board to set
aside the results based on the undisputed fact that it did
not have the Excelsior list of eligible employees until 4
days prior to the election, rather than the required 10
days. This delay was not attributable to the Employer,
who timely submitted the list to the Regional Office.
Board precedent relevant to this situation is inconsistent.
My colleagues rely on two-member plurality opinions in
Board panel decisions that arguably obviate the need for
specific proof of prejudice resulting from the late receipt

8 Again, this holding is in tension with dicta in Red Carpet Building
Maintenance. In light of the clear later holding in Alcohol & Drug
Dependency Services, however, we cannot hold that the Petitioner
waived its objection by failing to seek a postponement of the election.
The premise of the dissent’s position is that a union can waive the right
to use the eligibility list for at least 10 days before the election. While
we agree with that premise, we believe that Alcohol & Drug Dependen-
cy Services makes clear that the waiver must be clear and unequivocal
and will not be found to be implicit in a failure to request a delay in the
election.
9 Member Becker writes separately to state that he would require
service of the list on all parties in this case. To err is human, even in
the Board’s Regional Offices, but this unavoidable human error has led
to a series of wholly avoidable cases before the Board. See, e.g., Spe-
cial Citizens Futures Unlimited, 331 NLRB 160, 160–162 (2000);
Alcohol & Drug Dependency Services, supra; Red Carpet, supra;
Sprayking, supra. The Excelsior Board clearly did not foresee this
issue when it required only that the list be filed with the Regional Of-
fice. Requiring service on all parties protects employers who comply
with their duty and gives all other parties the access to eligible voters
Excelsior intended. All parties benefit as does the Board and, thus, the
general public. The Excelsior rule was adopted through adjudication
and it can be refined in adjudication or via rulemaking. I would fix this
wholly avoidable problem now.
1 All dates are in 2010.
of the list. Moreover, they contend in any event that
there is specific proof of prejudice here. I believe the
better view, based on prior cases that have never been
expressly overruled by the affirmative vote of three
Board members, is that a petitioner must show that it was
materially prejudiced in its ability to communicate with
unit employees, thus interfering with the purpose behind
the Excelsior rule. Inasmuch as I would find that the
Petitioner failed to make such a showing here, I would
reverse the judge, overrule the Petitioner’s objection, and
certify the election results.
The Petitioner initially sought a unit of 27
groundskeepers at the Ridgewood Country Club. There-
after, the parties agreed the unit should include an addi-
tional 9 mechanics, carpenters/masons, and irrigation
technicians, resulting in a unit of 36 employees. The
Employer timely submitted the Excelsior list to the Re-
gion on October 19. The Region attempted to fax the list
to the Petitioner on that day, but the transmission was not
successful. The list was successfully faxed on October
25, after the Region received a faxed letter from the Peti-
tioner’s attorney that same day indicating the list had not
yet been received.
The Petitioner concedes that it was not prevented from
contacting 25 of the groundskeepers because the list was
late. However, the Petitioner does assert prejudice as to
the 11 remaining employees—the 9 nongroundskeepers
and 2 groundskeepers, all of whom did not speak Span-
ish, the apparent primary language of the Petitioner’s 2
organizers. In this regard, the Petitioner notes that it did
not have the list during the weekend prior to the election
and thus could not contact the employees at their homes
at that time, when the Petitioner believed they were most
likely to be present. Nevertheless, after receiving the
Excelsior list, the Petitioner held a group meeting on
October 27, but it did not invite any of the nine non-
groundskeepers to that meeting. Its organizers did, how-
ever, make personal contact with 5 of the 11 eligible vot-
ers not previously contacted.
I agree with my colleagues that “the relevant inquiry is
whether the delay—however caused—interfered with the
purpose behind the Excelsior requirements of providing
employees with a full opportunity to be informed of the
arguments concerning representation, so that they can
fully and freely exercise their Section 7 rights.” Alcohol
& Drug Dependency Services, 326 NLRB 519, 520
(1998). I disagree with them as to the evidentiary burden
imposed on the objecting party seek to prove such inter-
ference. As a general matter, it is beyond cavil that the
Board does not easily set aside its elections and that the
burden on a party seeking to do so is a “heavy” one.
E.g., Safeway, Inc., 338 NLRB 525 (2002). I would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2250
therefore not automatically presume prejudice from the
fact that the Excelsior list is not received 10 days before
the election.
Although the plurality opinion in Alcohol & Drug De-
pendency Services arguably supports such a presump-
tion,2 other precedent is to the contrary. In particular, in
Sprayking, Inc., 226 NLRB 1044 fn. 8 (1976), a unani-
mous Board panel rejected a mechanical application of
the Excelsior rule in cases where, as here, the employer
timely submits the list to the Region but it is received by
a party less than 10 days before the election. Based on
the circumstances of that case, the Board reversed the
regional director and found that the petitioning union
failed to show that its delayed receipt of the list only 4 to
5 days before the election was not a basis for setting
aside the election. Likewise, in Red Carpet, 263 NLRB
1285, 1286 (1982), another unanimous Board panel re-
versed the regional director and found, under circum-
stances cited there, that the petitioning union failed to
show that its delayed receipt of the list 6 days before the
election was not a basis for setting aside the election.3
Applying the aforementioned precedent, and cases cit-
ed therein, I would find that the Petitioner has failed to
meet its ultimate burden of proving objectionable inter-
ference with its ability to communicate with employees
prior to the election, and I would make this finding re-
gardless of whether or not the Petitioner should benefit
from an initial presumption of prejudice due to its late
receipt of the list. First, there is no legitimate record
evidence that the Petitioner took any affirmative steps to
procure the list prior to October 25, the day it was pro-
vided. Red Carpet, supra at 1286 (union took no af-
firmative steps to obtain the list until 7 days before elec-
tion); Sprayking, supra at 1044 (union’s “failure to seek
the list earlier, even though it knew its receipt was over-
due, indicates that it did not really need the list prior to
the time it actually received the list from its attorney”).
In this regard, I note that the Petitioner’s attorney repre-
sented at the hearing that he also left voicemail messages
on October 21, 22, and 25 informing the Region that he
had not received the list. However, he refused to be
sworn or cross-examined on that representation. Unlike
the judge and my colleagues, I do not accept the unsworn
representation as record evidence, much less as fact.4

2 326 NLRB at 520 fn. 8.
3 I note that the plurality in Alcohol & Drug Dependency Services
purported to distinguish Red Carpet, not to overrule it. 326 NLRB at
520 fn. 9. Thus, the judge in this case erred when stating that Red
Carpet “does not seem to be regarded as good law.”
4 The Petitioner attorney’s unsworn representations that he made ear-
lier attempts were inadmissible as evidence under the Federal Rules of
Evidence and the Board’s own Rules and Regulations because the
attorney refused to be sworn or cross-examined. See FRE 603 (before
Second, the Petitioner made no effort to postpone the
election once it received the list. Red Carpet, 263 NLRB
at 1286.5 Compare American Laundry Machinery Div.,
234 NLRB 630, 632 (1978) (union’s request for post-
ponement of election when Excelsior list was late “indi-
cates that the list was of great importance” to its cam-
paign plans).
Finally, actions taken by the Petitioner after it received
the list fail to establish that the late receipt of the list had
any significant impact on its ability to communicate with
eligible voters. The Petitioner conceded that it was ulti-
mately able to reach 30 of the 36 eligible voters, includ-
ing 5 of 11 whom it had not contacted prior to receiving
the list. It is also undisputed that it conducted an organi-
zational meeting on October 27, 2 days after it received
the list, but still failed to invite any of the 9 non-
groundskeepers to that meeting, further undercutting any
claim that it was prejudiced by its inability to contact
these employees earlier in the campaign.
Viewed as a whole, then, the record evidence fails to
meet the Petitioner’s heavy burden of proving that its
delayed receipt of the Excelsior list so interfered with its
ability to communicate with employees as to require set-
ting aside the election results. My colleague’s contrary
view unfortunately encourages gamesmanship by placing
a union in a no-lose situation whenever the Excelsior list
is even a day late. Either it wins the election or it gets a
rerun election. No valid purpose is served by allowing a

testifying witness shall be required to declare that he or she will testify
truthfully); Sec. 102.30 of the Board’s Rules and Regulations (“Wit-
nesses shall be examined orally under oath.”). As such, the attorney’s
representations cannot be used as substantive evidence of efforts by the
Petitioner to secure the list. U.S. v. Hawkins, 76 F.3d 545, 551–552
(4th Cir. 1996) (unsworn representation of prosecutor as to defendant’s
identity inadmissible); U.S. v. Fiore, 443 F.2d 112, 114–115 (2d Cir.
1971), appeal after remand 467 F.2d 86 (2d. Cir. 1972), cert. denied
410 U.S. 984 (1973) (testimony inadmissible when witness refused to
be sworn). The judge incorrectly stated that the Employer either should
have questioned Petitioner’s witness Kent about his communications
with his attorney or should have subpoenaed the attorney’s testimony.
Had the Employer done the former, and assuming Kent would have
waived any attorney-client privilege that might apply, any testimony
about what the attorney claimed said to him about attempted communi-
cations with the Region would be uncorroborated hearsay. As for the
Employer’s failure to subpoena the attorney’s testimony, that inaction
cannot convert inadmissible, unsworn representations into admissible
record evidence.
Because the Petitioner has the burden of establishing objectionable
conduct, I would find that it had the burden of proving that it took
affirmative steps to obtain the list, and I note that my colleagues cite no
Board precedent in support of their contrary position. Such evidence is
obviously known to the petitioner but not to the employer, who, as this
case demonstrates, is likely to face significant difficulty in making the
showing the majority demands.
5 In light of the Board’s reliance on the absence of such a request in
Red Carpet, I respectfully disagree with the majority’s characterization
of that analysis as dicta.
RIDGEWOOD COUNTRY CLUB 2251
union to sit on its rights when minimal due diligence by
it could avoid this result without sacrificing the important
Board policy that the Excelsior rule seeks to assure.
In sum, for the foregoing reasons, I would overrule the
Petitioner’s objection and certify the results of the elec-
tion.