The Ridgewood Country Club

National Labor Relations Board - Administrative Judge Opinions

Jan 12, 2011

22-RC-013161 (N.L.R.B. Jan. 12, 2011)

JD(NY)-02-11
Paramus, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE RIDGEWOOD COUNTRY CLUB
Employer
and Case 22-RC-13161
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 78
Petitioner
Chevella Brown-Maynor, Esq., for the
Regional Director
Sean H. Close, Esq. (Putney, Twombly,
Hall & Hirson, LLP), of New York,
New York, for the Employer
Curtiss T. Jameson, Esq., (Kroll &
Heineman, LLC, of Iselin,
New Jersey, for the Petitioner
RECOMMENDED DECISION ON OBJECTION
ELEANOR MACDONALD, Administrative Law Judge: Upon a petition filed on
September 21, 2010 by Laborers International Union of North America, Local 78, and pursuant
to a Stipulated Election Agreement dated October 12, an election was held on October 29,
2010, in the following Unit:1
All full-time, regular part-time and seasonal greensmen, mechanics, irrigation
technicians, facility and maintenance staff (including mason/carpenters and carpenters)
and turfmen employed by the Employer at its Paramus, NJ, facility during the payroll
period ending Tuesday, October 5, 2010, but excluding all office clerical employees,
temporary employees, casual employees, cart staff employees, restaurant employees,
bar staff employees, pool staff employees, golf shop staff employees, tennis staff
employees, managerial employees, professional employees, guards and supervisors as
defined in the Act, and all other employees.
The tally of ballots showed that of approximately 36 eligible voters, 16 cast votes for the
Petitioner, 20 votes were cast against the Petitioner and there were no challenged ballots. The
Petitioner filed timely objections to conduct affecting the results of the election.
On November 19 the Acting Regional Director issued a Report on Objection and Notice
of Hearing in which he found that the Petitioner’s Objection raised substantial and material

1 All dates herein are in 2010 unless otherwise specified.
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issues which could best be resolved on the basis of record testimony at a hearing.
In its Objection the Petitioner contends that it was not provided with a copy of the
Excelsior list of eligible voters’ names and addresses until just a few days before the scheduled
election and was therefore not afforded a reasonable opportunity to communicate with all
eligible voters prior to the election.2
A hearing was held before me in Newark, New Jersey, on December 1, 2010. Based
upon the record and my observation of the demeanor of the witness and the Briefs submitted by
the Petitioner and the Employer on January 5, 2011, I make the following Recommended
Decision.
Findings of Fact
Only one witness was called at the hearing. The Petitioner called Eli Kent, Director of
Organizing for Local 78. Kent headed the Petitioner’s organizing effort at Ridgewood, a country
club containing a golf course. When the Petitioner filed its representation Petition it believed
that the unit of groundskeepers consisted of 27 employees. At the employer’s request, the unit
was extended to include mechanics, carpenters/masons and irrigation technicians. The
expanded unit described in the Stipulated Election Agreement dated October 12, 2010
comprised a total of 36 employees.3
The Employer’s facility is on Country Club Road, a private road which may be accessed
either from Midland Avenue or Paramus Road, both busy thoroughfares. Kent visited the
premises of the Employer in January 2010 and spoke with one groundskeeper. After that time,
the Union did attempt to enter the Club, believing it was barred from doing so because the
Employer had sought an injunction against the Union for placing an inflatable rat outside the
Club.
The Union began organizing the groundskeepers in March or April 2010. With two
exceptions these employees are monolingual Spanish speakers; they do not speak English.
The Union approached the employees on the public road about ½ to ¾ miles from the club
entrance. Most days, Kent or a Union organizer named Ortega were on the street attempting to
speak to the employees. There were two main activists for the Union among the 27
groundskeepers. The two activists were responsible for communicating with the ground crew
on behalf of the Petitioner. Of the 27 groundskeepers, two did not speak Spanish and the
activists were not able to communicate with them. Another two of the groundskeepers made it
clear that they were not favorable to the Union. One of the ground crew did not want to meet
with the Union and his sympathies were not known.
Of the 27 groundskeepers, only 6 work year round. The rest of the ground crew
generally works only 8 months of the year.
As a result of organizing efforts by the two activists, the Union met with most of the
groundskeepers during the campaign either in a parked car outside the club or outside their
homes. The Union had telephone numbers for 24 of the ground crew. The Union did not send
mailings during the campaign. Kent believed that it was important to speak to the employees

2 Excelsior Underwear, 156 NLRB 1236 (1966).
3 The Employer’s Brief states that the 9 employees were added on October 7, but there is
no evidence in the record before me to support this statement.
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personally. He maintained that employees do not vote for a Union based on a flyer; rather,
employees vote for the Union based on trust developed with the organizers and activists.
Prior to the execution of the Stipulated Election Agreement the Petitioner had not
attempted to organize the 9 non-ground crew additional employees. The ground crew does not
work side by side with the additional 9 employees and does not interact with them on a regular
basis. The Union did not know the names of the added employees and had no information
about them. After the election was set, Kent asked the two groundskeeper activists to seek out
the 9 additional employees on their non-work time. The Union prepared flyers in English and
Polish for these employees and it asked the activists to hand these out. The activists could not
reach 4 of these employees because they worked in separate areas. Two of the 9 did not work
on a consistent basis; these were Jason Tomko and Marc Muniz. The activists were not able to
obtain names or contact numbers for any of the 9 added unit employees.
Kent testified that he did not receive the Excelsior list on Tuesday, November 19.
Instead, the list was faxed to his office about 4:40 pm on Monday October 25. Kent was out of
the office and he had not been notified that the list was to be sent that day. Kent saw the list on
Tuesday, October 26. The election was held the next Friday.
Kent had called Petitioner’s attorney on Wednesday or Thursday, (the 20th or 21st) to say
that he had not received the Excelsior list.4 Attorney Jameson represented on the record that if
he were called to testify under oath he would state that he made a total of three telephone calls
to the Board Agent who had handled the case to ask about the list. On Thursday, October 21
he telephoned Board Agent Eric Pomianowski, who did not answer his telephone; Jameson left
a voicemail on Pomianowski’s line asking for the list. On Friday Jameson repeated this action
and left a voicemail on Pomianowski’s telephone asking for the list. On Monday the 25th
Jameson again telephoned Pomianowski and left a voicemail.5 In addition, he faxed a letter to
Pomianowski on October 25. The letter stated, in part
[p]lease allow this letter to follow-up with my messages beginning last week concerning
an eligibility list from the Employer. Neither this law firm or Local 78 has received an
eligibility list for the election scheduled for October 29, 2010. By my calculations, that list
was due to the NLRB no later than Tuesday, October 19th. Please forward the eligibility
list if you possess same….
At the instant hearing, a fax transmission sheet from the Regional Office addressed to
Kent at Local 78 was introduced into evidence. The document shows that Pomianowski had
attempted to fax the Excelsior list to Kent on October 19. The Regional Office fax sheet shows
that the receiving line was “busy” and the fax did not go through. The record evidence does not
show that any further attempt was made to transmit the list to the Union or to its attorney until
October 25.
At the hearing, the Employer stated its intention to ask for leave to call Pomianowski. An
adjournment for this purpose was denied as Counsel for the Employer was well aware of the
issues as set forth in the Region’s Report on Objection, and steps should have been taken prior
to the hearing to subpoena the Board Agent and the Board’s records according to Section

4 Kent’s affidavit, introduced into evidence by the Employer, states that he telephoned
Attorney Jameson on or about October 20, 2010.
5 The Employer’s Brief erroneously states that Jameson made only two telephone calls to
the Board Agent.
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102.118 of the Rules and Regulations. Consequently, there is no record evidence as to why the
fax to the Union was not successful or why it was not re-transmitted, and there is no record
evidence as to the receipt or non-receipt of Jameson’s voice mail messages to Pomianowski.
The Employer did not issue a subpoena to Jameson so as to obtain his testimony under
oath concerning the telephone calls he made to the Region even though such calls were
detailed in the Report on Objection. Counsel for the Employer would be aware that Union
Counsel would not consent to testify under oath at the hearing without the presence of another
attorney. At the hearing, Counsel for the Employer tried without success to persuade Jameson
to testify even though he had not been subpoenaed and was not accompanied by another
attorney. Thus, I attach no significance to the fact that Jameson’s representations about these
telephone calls were not made under oath and subject to cross-examination.
Finally, I note that Kent was cross-examined at great length by the Employer at the
instant hearing. However, Kent was not cross-examined by the Employer concerning the
Union’s fax machine. Kent could have been questioned as to whether the Union fax machine
was operative on October 19. Thus, there is no evidence in the record to show that any
malfunction by the Union’s fax machine prevented timely transmission of the eligibility list, or
that any other omission by the Union caused the failure to receive the list. The only competent
evidence in the record shows that the Board Agent put the Excelsior list in the Region’s fax
machine and that the fax transmission was not completed. The Region’s fax receipt clearly
shows that the transmission was not successful.
Kent testified that Petitioner had been unable to contact the 9 added unit employees until
he obtained the Excelsior list. In addition, the list contained the names of the two ground crew
employees who did not speak Spanish and with whom the activists were not able to
communicate at work. Of these 11 employees not previously contacted by the Union, Petitioner
met with 5 employees between receipt of the list and the day of the election.6 A Union organizer
named Vladik Orek visited 4 of the English speaking employees. Kent met with two of the 11
employees. The Union also gave pieces of campaign literature to these five employees.7
Kent stated that the Union was unable to meet with 6 of the 11 employees it had not
contacted prior to receiving the list. With respect to these 6, one of these was listed at an
address in New Mexico.8 Kent went to the home addresses of the other 5 but he was not able
to find the employees. At the home of one employee a person answered the door and Kent left
his business card with that person.
Kent testified that the employer had conducted meetings and distributed literature to the
employees at work. Kent thought it best to speak to the employees whom the Union had not yet
contacted away from the work environment. Based on his experience, some employees are
easier to find at home on the weekends. The Union did not yet have the Excelsior list on the

6 These were Jasek Kostra, Robert Data, Sczepan Szczes, Franciszek Krason, and a fifth
unnamed employee.
7 The Employer’s Brief erroneously states that Kent testified that the Union met with 6 of the
11 non-Spanish speaking employees before the election. However, the record is clear that the
Union met with only 5 of these employees with whom it had not spoken before receipt of the
eligibility list. Indeed, the Employer stated that it was prepared to call 5 employees who would
testify that they met with the Union.
8 The Employer’s Brief states that the employee was actually in New Mexico at the relevant
time but there is no evidence as to the employee’s whereabouts in the record.
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weekend before the election.
The Union held a pre-election meeting at a restaurant on October 27th. Only Spanish-
speaking members of the ground crew were invited to this event.
Kent stated that Petitioner was not prevented from contacting the ground crew because
of its tardy receipt of the eligibility list. However, the Union was prejudiced by the late receipt of
the list as to the 9 employees added to the unit. Kent wanted to visit the employees at their
homes but he could not do so until he had their home addresses.
Analysis
There is no dispute that the eligibility list was timely provided by the Employer to the
Regional Office on October 19. The law is clear that, “the duty to send an Excelsior list to the
parties lies squarely with the Region.” J.P. Phillips, Inc., 336 NLRB 1279, 1280 (2001). In J.P.
Phillips the Board explained that
The Excelsior rule is designed to achieve important statutory goals by ensuring that all
employees are fully informed about the arguments concerning representation and can
freely and fully exercise their Section 7 rights. The Excelsior rule helps achieve this goal
of an informed employee electorate by giving unions the right of access to employees
that employers already have, thus enabling employees to hear from all parties on the
unionization question. …
[T]he 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…. (quotation marks and
citations omitted)
Section 11302.1 of the NLRB Casehandling Manual (Part Two), Representation
Proceedings states that an election “may not be held sooner than 10 days after” the Regional
Director has received the Excelsior list, but “[t]his provision merely directs that the Board will
give the petitioner an opportunity make use of the list for at least 10 days before conducting the
election.” Mod Interiors, Inc. 324 NLRB 164 (1997). Here it is undisputed that Petitioner
received the list late on Monday afternoon before a Friday election. Therefore the Union had
use of the list for less than 4 full days, that is, less than one-half the time contemplated by the
Board’s long-established rule.
In a case similar to the instant case where the Petitioner received the eligibility list
approximately 6 days late in part due to Regional Office error, the Board sustained the
Petitioner’s objection and set aside the election. American Laundry Machinery Division, 234
NLRB 630 (1978). The Board emphasized the significance of the Regional Office error in the
case. The decision highlighted the Petitioner’s campaign strategy to rely on meetings with
employees rather than on mailing literature; the failure to timely receive the eligibility list
prevented the business agent from visiting the employees at home or telephoning them to ask
that they attend meetings near their homes.
In Alcohol and Drug Dependency Services, Inc., 326 NLRB 519 (1998), the Board set
aside the election where the Union did not receive the eligibility list until 5 days before the
election due to Regional Office error. Declining to require the Petitioner to demonstrate
“material prejudice” flowing from late receipt of the list, the Board stated that the relevant inquiry
was whether the delay interfered with the purpose behind the Excelsior requirements of
providing employees with a full opportunity to be informed of the arguments concerning
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representation. 326 NLRB 520.
Even if the Petitioner were required to prove prejudice, I believe that the Union has
stated sufficient grounds for its claim that it was prejudiced by its late receipt of the Excelsior list.
The facts have been clearly established. The Union activists were solely Spanish speaking and
the unit originally organized by the Union consisted of 27 groundskeepers of whom only 2 did
not speak Spanish. The 9 employees who were added to the unit in the Stipulated Election
Agreement on October 12 were not Spanish speaking and did not generally work side by side
with the ground crew. Thus, the task of communicating with them about the arguments
concerning representation necessarily fell to Union agents who could speak a language other
than Spanish. The Union’s strategy was to speak in person and away from the workplace to
these 9 employees and to the 2 ground crew who did not speak Spanish. The Petitioner had
what it believed to be valid reasons for this strategy; it is not for the Board to question the
decisions of the Union on methods of campaigning. The Union agent’s experience was that it
was easier to contact some employees on the weekend than during the week. This may
account, in part, for the fact that the Union was able to speak to only 5 of the 11 employees it
sought to contact after obtaining the eligibility list on the Monday before the election. If the
Union had been able to devote the full time contemplated by the Board rule to contacting the 11
employees it might have been able to speak to more of them. The election results were close: a
difference of only three votes out of the 36 cast would have produced a different result.
The Employer’s Brief urges that the Union should have taken additional measures to
obtain the eligibility list. However, I find that the Union made sufficient efforts to obtain the
eligibility list from the Regional Office. Petitioner’s attorney made three telephone calls to the
Board Agent charged with transmitting the list to the Union; he left a voice-mail each time. This
was followed by a letter faxed to the Regional Office. Of course, Petitioner would have no way
of knowing whether the Excelsior list had actually been received by the Region and whether the
delay in obtaining the list was caused by the Employer’s failure to send it to the Board. The
Union reasonably would expect a Board Agent to discharge his duties properly and to send the
list as soon as it was received. The Union would be acting reasonably in expecting that its
telephone calls would be returned promptly by a Board Agent who knew that an election was
pending within a few days.
The Employer’s Brief concludes by arguing that a rerun election would be inequitable to
the Ridgewood Country Club stating, “The Club did nothing wrong in this case and should not
be punished for the Region’s error.” A rerun election should not be viewed as a punishment.
Rather, a rerun election would effectuate the original intent of the Excelsior rule in ensuring that
all employees are fully informed about the arguments concerning representation and can freely
and fully exercise their Section 7 rights.9

9 I am aware of Red Carpet Building Maintenance Corp., 263 NLRB 1285 (1982), and the
fact that it has been cited in certain dissenting opinions. That case does not seem to be
regarded as good law.
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Conclusion and Recommendation
Having found that the Objection should be sustained due to the Union’s receipt of the
Excelsior list less than 4 full days before the election, I recommend that the election should be
set aside and the case be remanded to the Regional Director to schedule a new election.10
Dated, Washington, D.C. January 13, 2011
____________________
Eleanor MacDonald
Administrative Law Judge

10 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Recommended Decision may be filed with the Board in Washington, DC within 14 days
from the date of the issuance. Exceptions must be received by the Board in Washington by
January 27, 2011.