Thrifty Auto Parts, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1118 (N.L.R.B. 1989)

1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thrifty Auto Parts, Inc. and Driver, Salesmen,
Warehousemen , Food Handlers , Clerical and In-
dustrial Production Teamsters Union No. 582,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, Petitioner.
Case 19-RC-11778
July 31, 1989
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The National Labor Relations Board , by a three-
member panel , has considered objections' to an
election held May 25 , 1988, and the hearing offi-
cer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement . The tally of ballots shows
eight votes against and seven votes in favor of the
Petitioner with no void or challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, and adopts the hearing of-
ficer's findings and recommendation only to the
extent consistent with this decision.
The hearing officer found and we agree that the
Employer erroneously omitted the names of 2 out
of a total of 21, or 9 . 5 percent , of the eligible
voters' names from the eligibility list. The hearing
officer further concluded, however, that the Em-
ployer's omission of the two names did not warrant
setting the election aside obligations under Excelsi-
or Underwear.2 In this regard, the hearing officer
noted that, of the two employees whose names the
Employer omitted , one employee received a writ-
ten communication from the Petitioner prior to the
election and the other employee had a brief con-
versation with the Petitioner 's business agent in
which the Petitioner had the opportunity to inform
him of campaign issues . The hearing officer also
found that the Employer did not omit the two
names from the list due to gross negligence or bad
faith . Therefore, the hearing officer recommended
that the Petitioner's objections be overruled and
that a certification of the results of the election
issue . We disagree.
While the Excelsior rule is not to be applied me-
chanically, it is well established that substantial
compliance is required. 3 By omitting a substantial
i The Union withdrew its Objections I and 2 . Objections 3 and 4 are
related and are discussed infra.
In light of the disposition of this case, we find it unnecessary to pass on
the issue raised by the Petitioner regarding the parties ' second stipulation.
$ 156 NLRB 1236 (1966).
Gamble Robinson Ca, 180 NLRB 532 (1970).
number of voters ' names from the Excelsior list, an
employer can defeat the very purpose of the Excel-
sior rule : "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 man-
agement already possesses . 111 4 While the hearing of-
ficer here acknowledged that the Board views the
omission of names and addresses of eligible voters
from the Excelsior list as a more serious matter than
mere inaccuracies regarding names and addresses,
he failed to give full effect to the import of that
distinction in determining whether the Employer
had substantially complied with the Excelsior rule.5
In this regard , the Board has long held that the
issues of a union 's actual access to employees, or
the extent to which employees from the Excelsior
list are aware of the election issues and arguments,
are not litigable matters in applying the Excelsior
rule when ' there are omissions from the eligibility
list.6 The Board thus presumes that an employer's
failure to supply a substantially complete eligibility
list has a prejudicial effect on the election, without
inquiry into the question of whether the union may
have obtained some additional names and addresses
of eligible employees or whether omitted employ-
ees might have garnered sufficient information
about the issues to make an intelligent choice.?
Similarly , the question of whether the omissions
were the result of bad faith or mere inadvertence
does not influence the calculation of whether com-
pliance has been substantial or not . 8 Evidence of
bad faith and actual prejudice is unnecessary be-
cause the rule is essentially prophylactic, i.e., the
potential harm from list omissions is deemed suffi-
ciently great to warrant a strict rule that encour-
ages conscientious efforts to comply . Accordingly,
contrary to the hearing officer , we conclude that
the Employer has failed to substantially comply
with the Excelsior rule9 and we shall set aside the
May 25 , 1988 election and direct a second election.
4 EDM of Texas, 245 NLRB 934, 940 (1979) (quoting NLRB v.
Wyman-Gordon Ca, 394 U.S. 759, 767 (1969)).
s See EDM of Texas, supra at fn. 1.
Sonfarrel, Inc., 188 NLRB 969, 970 (1971).
7 Id.
8 Gamble Robinson Ca, supra.
9 See Chemical Technology, 214 NLRB 590 fn . 3 (1974) (omission of 8.3
percent of the eligible voters from the Excelsior list found not to consti-
tute substantial compliance) We note that LeMaster Steel Erectors, 271
NLRB 1391 (1984); Days Inns of America, 216 NLRB 384 (1975), West
Coast Meat Packing Ca, 195 NLRB 37 (1972); and Lobster House, 186
NLRB 148 (1970), relied on by the hearing officer, are distinguishable
from the present case in that they turn on inaccuracies in the Excelsior
lists as opposed to omissions from the lists. West Coast Meat Packing Co,
also involved some omissions from the Excelsior list, but these amounted
to only about 4 percent of the eligible voters.
295 NLRB No. 134
THRIFTY AUTO PARTS 1119
ORDER the Regional Director for Region 19 for the pur-
It is ordered that the election in Case 19-RC-
pose of holding a second election.
[Direction of Second Election omitted from pub-
11778 is set aside and that the case is remanded to lication.]