Dr. David M. Brotman Memorial Hospital

National Labor Relations Board - Board Decisions

Apr 28, 1975

217 N.L.R.B. 558 (N.L.R.B. 1975)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dr. David M. Brotman Memorial Hospital andService
and Hospital Employees Union , Local 399, SEIU,
AFL-CIO, Petitioner . Case 31-RC-2784
April 28, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Pursuant to a Stipulation for' Certification Upon
Consent Election approved on July 11, 1974, by the
Regional Director for Region 31 of the National Labor
Relations Board, an election by secret ballot was con-
ducted on July 18, 1974, under his direction and super-
vision, among employees in the stipulated unit. After
the election, each party was furnished with a tally of
ballots which showed that, of approximately 976 eligi-
ble voters, 729 cast ballots, of which 277 were for Peti-
tioner, 409 were against, 35 were challenged, and 8
were void. The challenges are insufficient to affect the
results of the election. Thereafter, the Petitioner filed
timely objections to the election.
In accordance with National Labor Relations Board
Rules and Regulations, the Regional Director con-
ducted an investigation and, on October 9, 1974 , issued
and served on the parties his Report on Objections and
Challenged Ballots , in which he recommended that Ob-
jection 1 be sustained,' that Objections 2 through 8 be
overruled, that the election be set aside, and that a
second election be directed. Thereafter, the Employer
filed timely exceptions to the Regional Director's re-
port and a supporting brief, and the Petitioner filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
I The relevant portion of the Regional Director's report dealing with
Objection 1 is attached as an appendix
All employees of Dr . David M. Brotman
Memorial Hospital at its location at 3828 Hughes
Avenue , Culver City, California; excluding all
physicians , registered nurses, occupational thera-
pists, clinical laboratory technologists, pharma-
cists, the accountant , and all other professional
employees; employees of the Personnel Depart-
ment , secretaries to heads of major departments,
and all other managerial or confidential em-
ployees ; guards and supervisors as defined in the
Act.
5. The Board has considered the Regional Director's
report, the Employer's exceptions, and the entire re-
cord in the case, and adopts the Regional Director's
report only to the extent consistent herewith.2
Petitioner's Objection 1 alleged that the list of eligi-
ble voters and their addresses provided by the Em-
ployer failed substantially to comply with the require-
ments set forth in the Excelsior Underwear decision3
and that the Employer, at times subsequent to the sub-
mission of the original list, refused requests to provide
updated information in its possession.
The list contained 967 names of which 5 were im-
properly included. The Regional Director found that
117 addresses were incorrect; these inaccuracies con-
stituted 12 percent of the list. It is not disputed that the
Employer provided the best information available to it
at the time the list was compiled. Subsequently, the
Employer obtained 20 address corrections. The Board
agent contacted the Employer's attorney in an attempt
to secure the more current information and preclude
possible objections to the election, but the latter de-
clined to provide it unless the agent could inform him
of any precedent or rule requiring that he do so.
The Regional Director found that the erroneous in-
clusions and incorrect addresses in the list supplied did
not constitute a substantial failure to comply with the
requirements. He did conclude, however, that the Em-
ployer's refusal to provide the updated material on re-
quest was in bad faith and, consequently, that the Em-
ployer had not substantially complied with the spirit of
the Excelsior decision. Accordingly, he recommended
that Objection 1 be sustained and the election be set
aside.
Where, as here, it has been brought to the Board
agent's attention that the Excelsior list contains a num-
ber of incorrect addresses, and the Board agent makes
a specific request of the Employer that the list be up-
dated with any new corrected addresses now in the
possession of the Employer, such request should be
honored. The basis of the Excelsior decision was that
Z In the absence of exceptions thereto, we pro forma adopt the Regional
Director's recommendations that Objections 2 through 8 be overruled.
3 Excelsior Underwear Inc, 156 NLRB 1236 (1966).
217 NLRB No. 89
DR. DAVID M. BROTMAN MEMORIAL HOSPITAL
the disclosure of names and addresses of all eligible
voters would maximize the likelihood that all voters
will be exposed to all arguments for, as well as against,
union representation. A refusal to divulge newly
secured information to the Board agent with respect to
incorrect addresses previously submitted cannot be
reconciled with the intent and purpose of the Excelsior
rule. We are not holding that the Employer is obligated
to investigate and secure additional information.
While we agree with the Regional Director that the
information should have been furnished to the Board
agent as part of compliance with the Excelsior rule, we
do not agree that setting aside the election is warranted
on the particular facts of this case. The Board has
stated that the Excelsior rule is not to be mechanically
app lied4 and has frequently refused to set an election
aside because of an insubstantial failure to comply
therewith.' There is no question of gross negligence or
of bad faith involved in the preparation of the list that
was timely submitted. The number of corrected ad-
dresses that the Employer could have corrected on in-
formation in its possession would represent approxi-
mately 2 percent of the eligible voters. We do not find
that its failure to do so would likely have materially
hampered the Union's ability to contact employees.
As the tally of ballots shows that the Union has not
received a majority of valid votes cast in the election,
and as the challenged ballots are insufficient in number
to affect the results, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes
have not been cast for Service and Hospital Employees
Union , Local 399 , SEIU, AFL-CIO, in the election
held herein , and that said Union is not the exclusive
representative of the employees in the unit found ap-
propriate within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
MEMBER JENKINS, dissenting:
The Board's Excelsior rule6 is not some purposeless
exercise that we require an employer to perform.
Rather, the rule's purpose and intent is to insure that,
in a National Labor Relations Board election, all voters
will receive maximum exposure to the arguments, both
4 Telonic Instruments, a Division of Telonic Industries, Inc., 173 NLRB
588,589 (1968), Program Aids Company, Inc.,. I63 NLRB 145, 146 (1967)
5 West Coast Meat Packing Company, Inc, 195 NLRB 37 (1972), The
Lobster House, 186 NLRB 148 (1970), Fontainebleau Hotel Corp., 181
NLRB 1134 (1970).
6 Excelsior Underwear, 156 NLRB 1236 (1966)
7 West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972); The
Lobster House, 186 NLRB 148 (1970), Fontainebleau Hotel Corp., 181
NLRB 1134 (1970); Telonic Instruments, a Division of Telonic Industries,
Inc., 173 NLRB 588 (1968)
559
for and against, union representation. In applying the
rule, the Board has long recognized that occasional
errors will occur in the preparation of such lists and, in
acceptance of this fact, we have as a matter of policy
declined to set elections aside on this basis where the
errors were insubstantial in nature and it was evident
that the employer had acted in good faith in attempting
to comply with our requirements. By the same token,
we' have always, in such cases, recognized that even
insubstantial errors should not be excused where they
are the product of the employer's gross negligence or
deliberate bad faith.'
Here, the Excelsior list submitted by the Employer
had 122 inaccuracies of one kind or another involving
12 percent of the names on the list. While the initial list
was prepared on the basis of the best information avail-
able to the Employer at that time, it is undisputed that
thereafter the Employer obtained 20 address correc-
tions which it refused to make available to the Board
even though the information was specifically requested
by us.
My majority colleagues recognize the Employer's
obligation to honor such a request from the Board and
accept the fact that the Employer's deliberate with-
holding of such information constitutes a failure to
comply with our Excelsior rule. Yet they excuse this
breach of the rule on grounds that the information
withheld had a insubstantial effect on the election. Such
an interpretation of our Excelsior rule has never been
the law until today and I seriously question whether we
can expect the same degree of compliance with our rule
after tacitly accepting a deliberate and major breach of
its requirements.
For the reasons stated, I would adopt the Regional
Director's recommendation that Petitioner's Objection
1 be sustained and direct that a second election be
conducted.
APPENDIX
OBJECTION 1
1. The Excelsior list submitted by the Employer
failed to substantially comply with the require-
ments as set forth in the Excelsior Underwear de-
cision . More specifically, the list contained inclu-
sion of numerous supervisors and other persons
ineligible to vote pursuant to the Stipulation for
Certification Upon Consent election as well as im-
proper addresses for a substantial portion of the
bargaining unit employees contained on the list.
Moreover, despite the fact that the inappropri-
ateness of the Excelsior list was called to the atten-
tion of the Employer (both by oral conversations
and by carbon copy of a letter, dated July 9, 1974,
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed to Harry C. Kessel, Board Agent), the
Employer did not take any affirmative steps to
transmit a more accurate list to the Petitioner.
However, Petitioner has subsequently been made
aware that a more accurate list was, in fact, com-
piled by the Employer and utilized for its own
pre-election purposes.
It should be noted that the Union did engage in
a door-to-door campaign and therefore the inap-
propriateness of the Excelsior list seriously ham-
pered and affected the Union's organizing drive.
More specifically, considerable time was spent in
contacting persons contained on the inappropriate
Excelsior list, who were not, in fact, eligible to
vote. Similarly many eligible bargaining unit em-
ployees were not contacted by the Petitioner due
to the fact that no current address was available.
Based upon the foregoing, it is contended that
the failure to substantially comply with the re-
quirements set forth in the Excelsior Underwear
decision had a substantial effect on the election
and the Petitioner's ability to communicate with
bargaining unit employees.
The Employer's Excelsior list, containing approxi-
mately 967 names and addresses, was timely received
by the Region on June 17, 1974, and forwarded to the
Petitioner the next day. This information was taken by
the Employer from a computer list of approximately
1300 employees. The information furnished by the
computer is based upon original records in the Person-
nel Department and the computer list is used by the
Employer to file Federal and State, withholding tax
reports. All employees are required to furnish their
current address at the time of hire on a W-4 form, but
unless an employee notifies the Employer of subsequent
changes, the information in the computer remains as
originally programmed. Prior to May 1974, in orienta-
tion meetings during the first month of employment,
employees were requested to keep the Hospital ap-
prised of address changes. In early May 1974, an em-
ployee handbook was issued to all employees contain-
ing the same request. The investigation disclosed that
the Petitioner, in various mailings of literature to em-
ployees on the list, supplied by the Employer, had ap-
proximately 66 envelopes returned by the U.S. Postal
Service as "Undeliverable," and 57 were returned by
the Postal Service with address changes. Petitioner also
discovered through house calls that an additional 51
addresses were incorrect. The 117 uncorrected inac-
curacies constituted 12% of the list. The Employer
used the same list to make mailings-of campaign litera-
ture to the employees. After the first 5 of these mail-
ings, the Employer had received as many as 50-60 let-
ters returned as "undeliverable." The Employer
attempted to correct these addresses through contact
with employees' supervisors, but received only about 20
corrections and received as many as 73 returns as "un-
deliverable" from subsequent mailings. Petitioner, in a
letter received by the Region on July 9, 1974, with a
copy to Employer's counsel, contended the Excelsior
list did not substantially comply with Board require-
ments in that it contained the names of 10 supervisors
and 76 incorrect addresses, The Employer's counsel
was contacted by the Board Agent and declined to
update the Excelsiorlist contending there was no Board
precedent for such action. He was advised by the Board
Agent that he could preclude possible objections at a
later date if the Employer provided the available cor-
rections to the Petitioner, however the Employer's at-
torney still declined to provide available corrections
unless a Board case could be cited specifically requiring
such action. No such case was cited.
Of the 10 employees alleged by the Petitioner in its
letter to be supervisors, 5 were clearly in job classifica-
tions excluded from the unit by stipulation of the par-
ties. The Employer advised these 5 before the election
that they were apparently ineligible and had been
placed on the list inadvertently. The other 5 employees
were in job classifications not excluded from the unit
by the election agreement. Subsequent to the election,
Petitioner submitted the names of. 68 additional em-
ployees whom it believed were ineligible to vote. Of
these 78 employees alleged to be ineligible by the Peti-
tioner, 34 did not vote, 41 voted without challenge and
3 voted under challenge by the Petitioner.
I conclude that the inadvertent inclusion of a small
number of ineligible employees is not sufficient grounds
upon which to overturn the election. Petitioner's con-
tention, after the election, that there were large number
of ineligible names on the list, is in the nature of a post
election challenge, which, under established Board
practice, is not entitled to consideration. Oppenheim
Collins & Co., 103 NLRB 1257. Accordingly, I con-
clude that the mere fact that the eligibility list included
the names of certain individuals who were not eligible
to vote is not alone sufficient to establish that the Em-
ployer willfully and knowingly submitted a list with the
fraudulent intent of affecting the Union's organizing
drive or the outcome of the election. The Board gener-
ally will not set an election aside because of an insub-
stantial failure to comply with the Excelsior rule if the
Employer has not been grossly negligent and has acted
in good faith. I conclude here, however, that the Em-
ployer's refusal to transmit the available, corrected ad-
dresses for Petitioner's use, even though based on the
lack of legal precedent -requiring the Employer to do so,
was in bad faith. As I have found the Employer acted
in bad faith in failing to provide address corrections on
DR. DAVID M. BROTMAN MEMORIAL HOSPITAL 561
request, I conclude that the Employer has not substan- Industries, Inc., 173 NLRB 588; The Lobster House,
tially complied with the letter or the spirit of the Excel- 186 NLRB 148. Accordingly, the undersigned recom-
sior rule. Telonic Instruments, a Division of Telonic mends that Objection 1 be sustained.