Bardon Enterprises, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 469 (N.L.R.B. 1998)

BARDON ENTERPRISES 469
Bardon Enterprises, Inc. and Cabinet Makers, Mill-
men and Industrial Carpenters Local 721,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, Petitioner. Case 21–RC–
19803
August 27, 1998
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held July 3, 1997, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 49 for and 57 against the Peti-
tioner, with 3 challenged ballots, an insufficient number
to affect the results.
The Board has reviewed the record in light of the Em-
ployer’s exceptions and brief, has adopted the hearing
officer’s recommendation to sustain the Petitioner’s Ob-
jection 4, and, accordingly, directs that a second election
be held.1
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN GOULD, concurring.
I agree with my colleagues’ decision to adopt the hear-
ing officer’s recommendation to sustain the Petitioner’s
Objection 4, that the Employer threatened employees
with plant closure or job loss if the Petitioner won the
election and negotiations were not “beneficial” to the
company, and to set aside the election.1 I write sepa-
rately with regard to Objection 2, that the Excelsior list
contained a substantial number of inaccurate addresses.
Unlike my colleagues who find it unnecessary to pass on
this objection, I would adopt the hearing officer’s rec-
ommendation to sustain this objection.
As found by the hearing officer, the Employer pro-
vided the Petitioner with an Excelsior list containing the
names and addresses of 131 employees. The addresses
on the list were taken from the employees’ W–4 tax
forms; however, 29 of the 131 addresses on the Excelsior
list were inaccurate. The election was decided by a mar-
gin of seven votes.

1 In light of our sustaining the Petitioner’s Objection 4, we find it
unnecessary to pass on the hearing officer’s recommendation to sustain
the Petitioner’s Objection 2.
1 As I noted in my dissenting opinion in Eldorado Tool, 325 NLRB
222 (1997), under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Board may limit what would otherwise constitute employer First
Amendment rights only to condemn three types of statements: promises
of benefits; threats of reprisals; and predictions of adverse economic
consequences suggesting that the action will not occur out of economic
necessities but because the employer will seek to penalize concerted
activity. The Employer’s conduct in the instant case is clearly the type
of statement that the Board may regulate under Gissel.
The intent of the Board’s Excelsior rule is to ensure
that all employees are fully informed about the argu-
ments pro and con concerning representation and can
freely and fully exercise their Section 7 rights. Excelsior
Underwear, 156 NLRB 1236, 1241 (1966); North Macon
Health Care Facility, 315 NLRB 359, 360–361 (1994);
Mod Interiors, Inc., 324 NLRB 164 (1997). In Excelsior,
the Board determined that the appropriate administrative
mechanism for achieving a fully informed electorate was
to impose on the employer the duty of preparing a com-
plete and accurate list of all eligible voters.2 In the in-
stant case, where 22 percent of the addresses were inac-
curate and the election was decided by a close margin,
the lack of complete and accurate information may have
impeded a free and reasoned choice. Accordingly, I
agree with the hearing officer that the number of inaccu-
rate addresses is both significant and determinative and
provides an adequate basis for setting aside the election.3
I find no merit to the Employer’s contention that the
Petitioner failed to establish that it was prejudiced by the
inaccurate addresses. 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 monstrosity.” Sonafarrel, Inc.,
188 NLRB 969, 970 (1971). Further, a union’s ability to
communicate with employees by means other than the
eligibility list does not influence the determination of
whether the employer has substantially complied with its
Excelsior duty. Thrifty Auto Parts, 295 NLRB 1118
(1989). I also reject the Employer’s contention that the
Petitioner cannot rely on the inaccuracies because it
failed to notify the Employer that it had found inaccura-
cies or to request more accurate addresses. As the Board
stated in Mod Interiors, Excelsior imposes the duty on
the employer and provides that the employer’s failure to
comply with the rule is grounds for setting aside the elec-
tion whenever proper objections are filed. 324 NLRB
164 at 165.

2 Fountainview Care Center, 323 NLRB 990, 991 (1997). The ad-
dresses on the Excelsior list reflected the employer’s best information
and the hearing officer found no bad faith on the part of the employer.
As the hearing officer correctly observed, evidence of bad faith or
actual prejudice is unnecessary to the resolution of an Excelsior objec-
tion. The Excelsior rule is “essentially prophylactic, i.e., the potential
harm from the list omissions is deemed sufficiently great to warrant a
strict rule that encourages conscientious efforts to comply.” Thrifty
Auto Parts, supra.
3 See North Macon, 315 NLRB at 359 fn. 4, and my concurring
opinion in Fountainview Care Center, 323 NLRB 990 at 993.
326 NLRB No. 48