NOTICE: This opinion
is subject to formal revision before publication in the bound volumes of NLRB
decisions. Readers are requested to notify
the Executive Secretary, National Labor Relations Board,
Trustees of
August 9, 2007
DECISION ON
REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
By Members
Schaumber, Kirsanow,
and Walsh
On January 22, 2002, the Regional Director for Region 2 issued a Supplemental Decision and Direction of a Second Election (pertinent portions of which are attached), in which she set aside the mixed manual and mail ballot election, which concluded on June 12, 2001.[1] The Regional Director adopted the hearing officer’s recommendation to sustain the Petitioner’s objection, which alleged that the Employer’s refusal to provide the Petitioner with the electronic mail (e-mail) addresses of eligible voters thwarted the manifest purpose of the requirements of Excelsior Underwear, Inc., 156 NLRB 1236 (1966). Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employer filed a timely request for review of the Regional Director’s Supplemental Decision. By Order dated November 15, 2002, the Board[2] granted the Employer’s request for review.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we reverse the Regional Director’s Supplemental Decision and overrule the Petitioner’s objection. We find that the Employer fully complied with its Excelsior requirements as heretofore defined by the Board. Thus, under the circumstances of this case, the Employer’s refusal to provide the Petitioner with unit employees’ e-mail addresses did not constitute objectionable conduct. Accordingly, we certify the election results.
i. facts
The facts are largely undisputed. The Employer operates an institute of higher learning, including a research vessel (R/V) named the R/V Maurice Ewing. The vessel is operated by licensed and unlicensed crew members. The parties stipulated, at an April 4, 2001 preelection hearing, that a unit of all unlicensed crew members of the R/V Maurice Ewing constituted an appropriate unit. The parties also stipulated to the date, time, and location of the mixed manual and mail ballot election.[3]
The
vessel and crew are typically at sea for several days or weeks at a time. The vessel was at sea for most of the preelection
period between the filing of the petition on March 19 and the manual election
on May 29, which was held aboard the vessel in
Although there is no evidence whether the vessel
received
The Petitioner is a longstanding maritime labor
organization.[5] Its campaign to organize the Employer’s licensed
and unlicensed crew began as early as December 2000 and continued though
February 2001, while the vessel was being repaired in
At the preelection hearing, the Petitioner requested that, in addition to providing it with the names and addresses of eligible voters as required by Excelsior, above, the Employer be required to provide the Petitioner with the e-mail addresses of eligible voters because of the unique circumstances of this case. In support of this request, the Petitioner made an offer of proof, emphasizing that the crew would be at sea and not at their home addresses for the duration of the preelection campaign. The hearing officer, rejecting the Petitioner’s offer of proof, denied the Petitioner’s request for e-mail addresses.
In the Decision and Direction of Election, the
Regional Director, affirming the hearing officer, stated that “there is no
Board law . . . which gives me the authority to direct the Employer to provide
the
The Regional Director found merit in the Petitioner’s objection. In the Supplemental Decision and Direction of Second Election, the Regional Director found that, based on the unusual circumstances of this case, it would be inconsistent with the “animating principles” of Excelsior and its progeny to find that the Employer’s submission of names and home addresses to the Petitioner, without the e-mail addresses, satisfied the requirements of Excelsior. The Regional Director reasoned that such a finding would “elevate form over substance” to the detriment of the statutory rights of the employees. The Regional Director cited the hearing officer’s findings that the majority of eligible voters were not at their home addresses during the time when the Petitioner had access to the Excelsior list, and that therefore traditional mailings would have been futile. The Regional Director emphasized that the Petitioner did not have access to the employees’ e-mail addresses during the critical period to enable the Petitioner to meaningfully communicate with employees in the proposed unit. The Regional Director acknowledged the Employer’s “technical” and “literal” compliance with Excelsior, and that no Board precedent required the submission of e-mail addresses. The Regional Director nevertheless concluded that the manifest purpose of the Excelsior rule had not been met in this case and that the failure to comply with the Petitioner’s request to provide the e-mail addresses constituted objectionable conduct.
The Employer has sought review of the Regional Director’s Supplemental Decision, contending that it was not compelled to furnish the Petitioner with the e-mail addresses at issue in this case, under Excelsior or otherwise, and that requiring e-mail production here would be a retroactive modification of Excelsior requirements, which would deprive it of due process. The Petitioner urges us to affirm the Regional Director’s Supplemental Decision, contending that the vessel was the de facto residence of the crew during the critical period, that e-mailing was the only reasonable way to communicate with the unit employees, and that therefore the Employer did not substantially comply with the Excelsior requirements. For the following reasons, we find merit in the Employer’s contention that it complied with extant Excelsior requirements.
ii. analysis
It is undisputed that the Employer timely provided the Regional Director with a complete and accurate list of unit employees and their home addresses, and thus fully complied with existing Board precedent interpreting Excelsior. It is also undisputed that no Board case has ever held that the failure to provide the e-mail addresses of eligible voters constitutes objectionable conduct. We cannot agree, therefore, with the Petitioner or our dissenting colleague’s contentions that the Employer did not “substantially comply” with Excelsior. As the cases cited by the dissent show, the Board has applied a “substantial compliance” standard in situations where the employer’s Excelsior information was incomplete, inaccurate, or both.[6] In this case, the Employer’s list was both complete and accurate. The Board has not applied the “substantial compliance” standard in the manner that the Petitioner and the dissent advocate, i.e., where a union received a complete and accurate list but may have been unable to reach all unit employees on the list.[7] To the contrary, “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.’” Mod Interiors, Inc., above at 164 (quoting Sonfarrel, Inc., 188 NLRB 969, 970 (1971)).
In addition, as stated above, the Petitioner is
a maritime union with vast experience and a long history of organizing and
representing employees at sea. The evidence
shows that the Petitioner began organizing the licensed and unlicensed crew
long before the vessel went to sea. As
far back as December 2000 through early February 2001, when the vessel was
docked in
Finally, we note that (1) there is no evidence that the Employer used the employees’ e-mail addresses to communicate with them about the election campaign,[8] and (2) the Petitioner won the election in the licensed crew unit under the same conditions (no e-mail access) as existed in the unlicensed crew unit.
We observe that a multitude of unanswered and difficult questions exist regarding the potential ramifications, for both employers and employees, of requiring employers to furnish employee e-mail addresses. For example, what costs might be imposed on an employer if a union were able to send e-mails to employees’ workplace e-mail addresses? What if electronic mailings were sufficiently voluminous to impair an employer’s ability to conduct business electronically? What becomes of an employer’s right not to furnish a forum, “on” its (virtual) property, for a third party to express its views? What would be the interplay, if any, between newly imposed requirements and the Board’s current law relative to union access to an employer’s property? Could employers continue existing e-mail monitoring programs without engaging in unlawful surveillance? Are employee privacy rights at stake? Plainly, the Board’s expertise does not encompass the rapidly expanding universe of information technology, and persons who know much more than we do about these matters will likely raise additional issues that we cannot even formulate without guidance. All of these issues should be fully briefed and considered before the Board departs from longstanding, well-understood precedent.
We simply do not believe that the Board is in a
position to extend Excelsior, as the
CERTIFICATION OF RESULTS
It is certified that the majority of ballots have not been cast for International Organization of Masters, Mates & Pilots, AFL–CIO, and that it is not the exclusive collective-bargaining representative of these bargaining unit employees within the meaning of Section 9(a) of the Act.
Dated,
Peter C.
Schaumber,
Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Member Walsh, dissenting.
Because 9 out of 11 unit employees were scheduled to be away from home aboard the Employer’s research vessel from the day the Excelsior list was due until the day of the election, the Petitioner requested the Employer to provide it with the employees’ e-mail addresses. The Employer refused, and provided an Excelsior list containing only the employees’ home addresses. As a result, the Petitioner was unable to contact 82 percent of the electorate using the information contained in the Excelsior list. Nonetheless, the majority finds that the Employer fully complied with the Board’s Excelsior rule and that the Employer’s refusal to provide the requested e-mail addresses did not prejudice the election. I disagree.
background
The Employer operates a research vessel, the R/V Maurice Ewing (the Maurice Ewing.) The crew of the Maurice Ewing is at sea for several days or weeks at a time. As the hearing officer found, the Maurice Ewing was either at sea or in ports-of-call from December 2000 until the election in this case on May 29, 2001.1 From the filing of the petition on March 19 until the election on May 29, the vessel was at sea in international or foreign waters at all times with the exception of three brief periods when the vessel was at ports in Puerto Rico and Panama. Only two unit employees were at their homes at any time between the day the Excelsior list was due and the day of the election.
Unit employees are provided individual e-mail accounts aboard the Maurice Ewing for their personal use. The only limitations imposed on employees’ usage of these e-mail accounts are that the employees must be off-duty and each message may be no more than 64 kilobytes in size. The employees regularly use this email system to receive personal messages, as well as general information on news, sports, and weather.
At the preelection hearing, the Petitioner asked the Employer to include the employees’ offshore e-mail addresses in the Excelsior list, and the Employer refused. The Regional Director denied the Petitioner’s request to order the Employer to provide the requested e-mail addresses, reasoning that she did not have the authority to direct the Employer to do so under current Board law. The Petitioner requested review of the Regional Director’s decision, and the Board denied the Petitioner’s request for review “without prejudice to the Petitioner’s right to file an objection concerning the issue raised on review.”2
The tally of ballots showed five votes for and five against the Petitioner. After the election, the Petitioner timely filed the instant objection alleging that the Employer’s refusal to provide the employees’ e-mail addresses “thwarted the manifest purpose of the Excelsior rule.” The Regional Director found merit in the Petitioner’s objection, reasoning that it would be inconsistent with the “animating principles” of the Excelsior rule to find that the Employer’s submission of names and home addresses, without more, had satisfied the requirements of Excelsior under the circumstances of this case.
analysis
The purpose of the Excelsior rule is to
ensure that all participants in an election have access to the electorate so
that employees can make a free and reasoned choice regarding union representation. Excelsior Underwear, Inc., 156 NLRB
1236 (1966). “Among the factors that undoubtedly
tend to impede such a choice is a lack of information with respect to one of
the choices available.”
Although the Excelsior rule is not applied mechanically, it is well established that substantial compliance is required. Thrifty Auto Parts, 295 NLRB 1118 (1989). If the union cannot contact a substantial number of voters because of incomplete or inaccurate information in the Excelsior list, the election will be set aside.3 The Board has thus never squarely held that an employer will satisfy the Excelsior requirement in every case if it simply provides the mailing addresses at employees’ permanent residences. In fact, in some cases the Board has held that permanent residential addresses might not be sufficient to satisfy the purposes of the Excelsior rule. In Rite Care Poultry Co., 185 NLRB 41 (1970), for example, the Board found that the employer did not comply with the requirements of Excelsior in part because it withheld some employees’ post office box numbers. In another case, LeMaster Steel Erectors, 271 NLRB 1391 (1984), the Excelsior list did not provide the temporary living addresses of six employees who were working out of state, but provided only those employees’ permanent residential addresses. The Board found that the employer had substantially complied with its Excelsior duty in that case because the six employees comprised only nine percent of the eligible voters and because they were at their permanent residential addresses for 10 of the 19 days between receipt of the Excelsior list and the election date, including the 5 days immediately preceding the election. Significantly, the Board did not find that an employer could never be required to provide employees’ temporary living addresses under Excelsior.
Although the Board has never required an employer to provide employees’ e-mail addresses in order to fulfill its Excelsior duty, there is “nothing in Excelsior which would require the rule stated therein to be mechanically applied.” Telonic Instruments, 173 NLRB 588, 589 (1968). Ordinarily, an employer substantially complies with the Excelsior requirement by timely filing a list containing the names and home addresses of all eligible voters. Such information is typically sufficient to ensure that the goals of Excelsior are fulfilled by giving the union an opportunity to communicate its message to all eligible voters before the election. In the particular circumstances of this case, however, a list of employees’ home addresses failed to effectuate the purposes of the Excelsior rule: to facilitate an informed electorate by “giving unions the right of access to employees that employers already have.” Special Citizens Futures Unlimited, 331 NLRB 160, 161 (2000). As the Regional Director found, mailings or visits to the employees’ home addresses would have been futile. Because the Petitioner could not contact the employees using the information contained in the Excelsior list, the employees were prevented from receiving information with respect to one of their choices, and thereby prevented from exercising their Section 7 rights. Accordingly, the Employer has not substantially complied with the Excelsior requirement under the facts of this case. Moreover, in an election decided by such a close margin, this lack of information may have affected the outcome of the election.
Contrary to my colleagues’ suggestion, the Excelsior rule would not have to be “extended” in order to find that e-mail addresses are required under the unusual circumstances of this case. Protecting employees’ Section 7 right to make a fully informed election choice would not require the provision of e-mail addresses in every case, or even in most cases. It is the particular circumstances of this case, where the employees were simply unavailable for contact at their home addresses, that makes the e-mail addresses necessary to effectuate substantial compliance with the Excelsior rule.
The majority’s argument that the Petitioner agreed to the timing of the election knowing that it would be limited in its ability to communicate with the unit employees, lacks merit. This argument essentially amounts to a contention that by agreeing to the election date, the Petitioner waived its right to communicate with the voters during the preelection period. Although it is true that the Petitioner agreed to the timing of the election, the Petitioner did not know that the Employer would refuse to provide it with the employees’ e-mail addresses. And, given the nature of the Employer’s business, it is by no means clear that the parties could have easily scheduled the election at a time when the unit employees would not be at sea for at least a significant portion of the critical period. Furthermore, waiting for such an opportunity would have delayed the election. There is no reason why the Petitioner should be forced to choose between a prompt election or an informed electorate. See Mod Interiors, 324 NLRB 164 (1997) (petitioner should not have to choose between a prompt election or an accurate Excelsior list when the employer’s compliance would have avoided the problem).
Finally, there is no merit to the Employer’s claim
that it would be denied due process if the Board ordered a second election in
this case. The Employer argues that it
relied on current Board law when it provided an Excelsior list containing only mailing addresses, and the Regional
Director expressly relied on extant Board law when she refused to order the
Employer to provide the e-mail addresses prior to the election. In denying the Petitioner’s request for review
of the Regional Director’s decision, however, the Board specifically provided
for the reconsideration of this matter as the subject of a timely filed objection.4 The
Employer was accordingly aware that the Board would reconsider this matter if
the Employer did not provide the e-mail addresses and the Petitioner lost the
election. Furthermore, directing a second
election and requiring the Employer to provide the Petitioner with a list of
the employees’ e-mail addresses would not place any significant burden on the
Employer. As the Board stated in North Macon Health Care Facility,
315 NLRB 359, 361 (1994):
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.
Because the Petitioner was not able to communicate with the eligible voters using the information contained in the Excelsior list, and, accordingly, the employees
were not fully informed about the arguments concerning representation, I would sustain the Petitioner’s objection and direct a second election.
Dated,
Dennis P. Walsh Member
National Labor Relations
Board
appendix
SUPPLEMENTAL DECISION AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction
of Election issued in the above-captioned case on April 12, 2001,1 an election by secret-ballot was conducted in
the following unit of employees:
Included:
All regular unlicensed employees employed as crew by the Employer on the R/V
Maurice Ewing, including oilers/wipers, able-bodies seamen (ABs), ordinary
seamen (OSs), stewards/messmen and galley personnel
Excluded:
All other employees including all licensed employees,2 employees who are already represented by
any labor organization, and guards, professional employees and supervisors as
defined in the Act.
The election was conducted as a mixed manual and mail ballot
election. Employees voting manually did so on May 29. For those employees voting
by mail ballot, the ballots were mailed from Region 2 on April 30. To be eligible
for counting, ballots had to be received at Region 2 by the close of business
on June 11.
The
tally of ballots, which was prepared and made available to the parties at the
conclusion of the election, on June 12, showed the following results:
Approximate
number of eligible voters..................16
Void
ballots...............................................................0
Number
of votes cast for Petitioner………………..5
Votes
cast against participating labor
organization……………...5
Valid
votes counted………………………............10
Number
of challenged ballots……………………...0
Valid
votes counted plus challenged ballots ..........10
Challenges
are not sufficient in number to
…affect
the results of the election…..
A
majority of the valid votes counted plus
challenged ballots has not been cast for Petitioner.
On
July 15, the Petitioner filed an objection to the election. The objection is attached hereto.
Pursuant to Section 102.69 of the Board’s Rules and
Regulations, an administrative investigation of the objection was conducted.
After duly considering the matter, and the positions of the parties, a Notice
of Hearing on Objections was issued in this matter on July 17, in which it was
ordered that a hearing be conducted before a duly designated hearing officer
for the purpose of receiving testimony to resolve the issues of fact and credibility
raised by the objection. Accordingly, a hearing concerning the objection was
held before Hearing Officer Gregory B. Davis on August 28. At the hearing the
parties were afforded a full and complete opportunity to be heard, to examine
and cross examine witnesses and to present evidence pertinent to the issues.
On
December 5, the hearing officer issued a Report on Objection and Recommendations
(the Report), a copy of which is attached hereto. In the Report, the hearing officer
found that, by failing to provide the Petitioner with the at-sea e-mail addresses
of unit employees, the Employer engaged in objectionable conduct. The hearing officer
recommended that the Petitioner’s objection be sustained, that the results of
the election be set aside and that a new election be directed. On December
19, the Employer filed exceptions to the
Report. The Employer contends that the hearing officer erred in failing to
grant its motion, made at hearing and renewed in its brief in support of its
exceptions, to dismiss Petitioner’s objection as legally insufficient. The basis
for this motion is that the Petitioner’s objection relies exclusively upon the
Employer’s alleged failure to comply with Excelsior
Underwear, Inc., 156 NLRB 1236 (1966). The Employer argues that, inasmuch
as there exists no obligation under Excelsior
Underwear, or its progeny, to provide the e-mail addresses of employees,
the objection must be dismissed. In this
regard, the Employer notes that, in the Decision and Direction of Election issued
in this matter, I found that I was not authorized under Board law to require
the Employer to provide the e-mail addresses of eligible voters as part of the Excelsior requirement.3
The
Employer additionally contends that there is no generally applicable obligation
on employers to provide unions with e-mail addresses of eligible voters and
that it acted in full compliance with all Excelsior
requirements. The Employer further submits that any additional obligations
thereunder must be applied prospectively. The
Employer argues that the Petitioner could have availed itself of other
means of communication with employees, as discussed in further detail below,
and Petitioner failed to carry its burden of showing that its failure to provide
the e-mail addresses of employees interfered with the election.
The
Petitioner 4 contends that under the
facts of this case, the Employer should be required to provide the e-mail
addresses of unit employees. The Petitioner
further contends that the R/V Maurice Ewing was the de facto temporary residence
of the vast majority of unit employees during the preelection critical period
and the Employer’s refusals to provide the e-mail addresses of these employees
was tantamount to the knowing submission of an incorrect Excelsior list. The Petitioner
further contends that a consideration of whether alternate means of communication
with employees were available to it is neither necessary nor relevant to a
determination of whether the Employer has met its obligations under Excelsior Underwear.
The
underlying relevant facts are set forth in the hearing officer’s report and are
generally not in dispute. The hearing officer found that during the period from
December 2000 through the date of the election, the R/V Maurice Ewing was either
in ports-of-call in
The
hearing officer concluded that, under the circumstances of the case, where a
majority of bargaining unit members were not at their home addresses at any time
during the critical period, the failure of the Employer to provide the e-mail addresses
of unit employees frustrated the manifest purpose of the Excelsior rule. In doing so, the hearing officer examined Board
precedent setting forth both the rationale for the rule, as well as the changes
adopted by the Board in the years since Excelsior
Underwear was first decided.
Initially,
the Employer argues that there is no obligation under Excelsior to supply anything other than the names and mailing addresses
of employees. The Employer maintains that the Board, in denying the Petitioner’s
request for review of my finding that there is no Board law authorizing me to direct
the production of e-mail addresses, has ruled on the matter. I note however, that the Board specifically
provided for a reconsideration of this matter as the subject of timely filed
objections. Moreover, the matters presented in connection with the underlying
representation proceeding, which concerned itself with issues relating to the existence
of a question concerning representation, are not those contemplated by the instant
proceedings, which entail a determination of whether the Employer engaged in
conduct which reasonably could have tended to interfere with the election. I note that such matters are not litigable in
preelection representation proceedings. Thus, I find that both procedurally and
substantively, I am not precluded from addressing the issue of whether the
Employer’s failure to provide at-sea e-mail addresses of employees constitutes
objectionable conduct, and that it is appropriate for me to do so.
In
support of its argument that the Board has never required that the Excelsior list include any information
other than the names and addresses of employees, the Employer relies upon Lockheed Martin Skunk Works, 331 NLRB 852
(2000). In that case, which arose in the
context of a decertification petition filed by a unit employee, the Board held
that alleged discriminatory nonenforcement of no-solicitation rules in favor of
the decertification petitioner did not constitute objectionable conduct.
Rather, the Board found that under the circumstances of that case, the union
was not placed at a disadvantage relative to the petitioner, based solely upon
the petitioner’s greater use of the employer’s e-mail system. In so holding,
the Board stressed the fact that the disparity in use resulted to some degree
from the union’s failure to make full use of the access granted to it by the
employer, that the record evidenced the union’s preference for traditional
methods of communication, and that there was no evidence of dissemination
regarding the employer’s alleged discriminatory nonenforcement of its no-solicitation
rules. With respect to any general requirement
regarding access to e-mail addresses, the Board noted:
There
is no per se rule that an employer must allow the parties to an election to use
its e-mail system comparable to the Excelsior
list requirement discussed above, and there is, accordingly, no basis for presuming
that an employer’s failure to provide such access constitutes objectionable
conduct.
331 NLRB 854 at fn. 12.
As
the hearing officer noted, both parties claim that this language supports their
contentions in the instant matter. The Employer relies upon this observation in
arguing that there is no obligation under Excelsior
Underwear to provide employee e-mail addresses. The Petitioner, contrary to
the Employer, submits that this language supports a finding that under some circumstances
an employer may be required to provide e-mail addresses.
Lockheed Martin, however, did not involve an
alleged breach of the employer’s obligations under Excelsior Underwear. Thus, the fact that the incumbent union had
access to employees via interoffice mail, union bulletin boards and traditional
mailings was of significance. Noting
that those circumstances are clearly not analogous to those presented by the instant
matter, I find that the above statement by the Board is not dispositive of the issues
raised by the objection and renders the issue of whether, under certain circumstances,
the failure to provide e-mail addresses of employees may constitute objectionable
conduct, to be open to further consideration.
The
Employer notes that in Excelsior Underwear
the Board adopted a per se rule to require employers to produce the names and
addresses of employees in all cases, and that this rule was adopted prospectively.
In that particular instance, the elections were not set aside. The Employer argues that to set aside the
election in the instant case, on the basis of its failure to provide the Petitioner
with e-mail addresses of employees, would not be consistent with Excelsior Underwear or the requirements
of due process.
Contrary
to the Employer, I find support in Board law to overturn the election in the instant
case. Initially, I note that the matter
before me involves objections to the conduct of one specific election under a
particular, and unusual, set of circumstances. At the post-election stage, my
authority is limited to a consideration of whether, under the facts of this
case, the manifest purpose of the Excelsior
rule has been achieved and whether the Employer’s actions tended to interfere in
the election so as to warrant that it be set aside and another election be directed. Further, the Employer’s contention that any
change in obligations under Excelsior
must be applied prospectively is not supported by Board law.
In
North Macon Health Care Facility, 315
NLRB 359 (1994), the Board considered a situation where the employer had provided
the union with a list of eligible voters containing incorrect addresses for 33
out of 144 employees, and the employees’ first initials and last names, rather
than their full names. Payroll records
submitted by the employer during the hearing included employees’ addresses as
well as their complete first and last names. The hearing officer recommended
that the petitioner’s objection be overruled, finding that the employer’s use
of the voter’s first initial rather than full name did not rise to the level of
a substantial failure to comply with the Excelsior
rule’s requirements.
The
Board found that, insofar as the employer had failed to provide employees’ first
and last names, the petitioner’s objection had merit, and directed that a
second election be conducted.6 In doing so, the Board announced an expansion
of the Excelsior rule applicable to
that case and all other cases involving the issue retroactively. In explaining its decision to apply the rule in
that manner, the Board held:
. . .
based upon our administrative experience in the areas 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”) . . . we find no circumstances here sufficient to
overcome the Board’s presumption in favor of retroactivity. As discussed above,
the application of the rule that an Excelsior
list mist 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.
315
NLRB at 361.
The
Board went on to note that although a second election might result in a certification
of representative, whereas the first did not, it did not find that there was
prejudice to the employer on that basis, stating that “[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. “
Additionally,
I note that by the terms of the Board’s ruling on Petitioner’s Request for Review,
the Employer was fully on notice that its asserted obligation to provide
employee e-mail addresses could, and might, be subsequently litigated and reconsidered.
Under all the circumstances, therefore, I do not find it violative of Board law
or the requirements of due process to set the instant election aside.
In agreement with the hearing officer, I do not find
the evidence that the Petitioner had alternate means of access to employees to
be either compelling or to warrant a different result herein. The Employer relies
upon the fact that the Petitioner could have, and should have, made greater use
of the limited number of e-mail addresses of unit employees it did have. The
Employer suggests that these employees should have been asked to provide e-mail
addresses for, and send union communications to, their coworkers. The Employer
offered no evidence, and there is no suggestion in the record, that these employees
were invested with either actual or apparent authority to act as agents of Petitioner
and campaign on its behalf. Such a
proposal would have the result of effectively placing the responsibility for a
union’s organizing in the hands of employees. There may be many reasons why
employees may choose not to openly campaign for or against union representation.
The Excelsior rule allows unions to
have access directly to employees precisely so that they may consider their options
and make an informed choice, by secret ballot, consistent with the protections
of Section 7 of the Act.7 Further, the Board specifically held in Excelsior that the availability of
alternate means of communication is not a factor which would obviate against disclosure,
where a question concerning representation exists. (156 NLRB at 1245.) Moreover, in situations where the Board has
considered objections based upon non-compliance with the rule, it has consistently
declined to render a determination on the basis of whether the union ultimately
had access to employees. Id at 1241;
In
determining that the election herein should be set aside, I acknowledge, as the
Employer argues, that there is no Board
case which has specifically dealt with this issue. The Board has held, however,
that in discharging the trust placed in it to determine the steps necessary to
ensure that elections are conducted fairly, its function includes not only
conducting elections free from interference, restraint or coercion violative of
the Act, but,
also
from other elements that prevent and 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. In other words, an 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.
Excelsior Underwear, supra, at 136.
The
fundamental purpose of the Excelsior
rule was noted with approval in NLRB v.
Wyman Gordon. Co., 394
We
have held in a number of cases that Congress granted the Board a wide discretion
to ensure the fair and free choice of bargaining representatives. The disclosure
requirement furthers this objective by encouraging an informed employee
electorate and by allowing unions the right of access to employees that
management already possesses.
Over
the years, the Board has consistently affirmed the rationale informing its decisions
in this area; see e.g. Sonfarrel, 188
NLRB at 970 (1971) (Excelsior requirement
rooted in hope of insuring a “fair and informed” electorate); Thrifty Auto Parts, Inc., 295 NLRB 1118
(1989) ( purpose of Excelsior rule is
“to further the fair and free choice of bargaining representatives . . . by encouraging
an informed employee electorate and by allowing unions the right to access to
employees that management already possesses); Mod Interiors, supra (Excelsior
rule intended to “achieve important statutory goals by ensuring that all
employees are full informed about the arguments concerning representation and
can freely and fully exercise their Section 7 rights.”). It is well-settled,
moreover, that the information contained in an Excelsior list must be “complete and accurate so that the union may
have access to all eligible voters, “ in order “to achieve important statutory
goals by ensuring that all employees are fully informed about the arguments
concerning representation and can fully and freely exercise their Section 7 rights.”
Moreover,
the Board has held that even in situations where an employer has fully met the
requirements of the rule, an election
may be set aside when there is substantial interference with the essential
function the rule is meant to serve. As the hearing officer noted in his
report, the proper focus in determining whether there has been observance of
the requirements of Excelsior should
be on “the degree of prejudice to the channels of communication.”
In
the instant case I find it would be inconsistent with the “animating principles”
of Excelsior Underwear, and its progeny,
as well as those of the Act, to find that the Employer’s submission of the
names and mailing addresses of employees, absent more, has satisfied the requirements
of the Excelsior rule. Clearly, such a finding would elevate form
over substance to the detriment of the statutory rights of employees. As the hearing
officer found, the predominant majority of eligible voters were not at their
home addresses during the period in which the Petitioner had access to the Excelsior list. It stands to reason, therefore, that traditional
mailings to their home addresses would have been futile.
The
Petitioner did not have access to employee addresses during the critical period,
which would enable it to, in any meaningful sense, communicate with most of the
employees in the proposed unit. The traditional mailing addresses supplied by
the Employer were, therefore, less accurate than those it relied upon for its
own purposes during the critical period. Under these circumstances, in agreement
with the hearing officer, I find that the manifest purpose of the Excelsior rule has not been met in this instance.
I further find that the Employer’s failure to comply with the Petitioner’s request
to provide it with such information, constituted objectionable conduct. Accordingly,
I adopt the hearing officer’s report and recommendations and sustain Petitioner’s
objection. I further direct that the election previously conducted be set aside
and a second election be held in Case 2–RC–22355.