Furnishing only employees’ home addresses to union may not be enough under Excelsior
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Wednesday, April 18, 2018

Furnishing only employees’ home addresses to union may not be enough under Excelsior

By Ronald Miller, J.D.

Finding that the Excelsior rule requires an employer to provide a union with all employee address information in its possession—not just home addresses—to facilitate the union’s ability to communicate with potential voters, the Eleventh Circuit denied an employer’s petition for review of an NLRB order requiring the employer to bargain with the union that prevailed in a representation election. The Excelsior rule is designed to ensure an accurate and informed vote on the question of union representation, the appeals court noted. For an employer to supply addresses that it knows are not likely to allow the union to reach employees by mail violates the rule. Thus, the Board’s finding that the employer should have furnished P.O. Box mailing addresses was not a “newly articulated” extension of Excelsior (Transit Connection, Inc. v. NLRB, April 13, 2018, Bartle, H.).

Two elections held. The employer refused to voluntarily recognize the union after a majority of the company’s bus drivers had signed authorization cards, so the union petitioned the NLRB to conduct a representation election. The parties signed an agreement to hold a Board-supervised election, and the employer provided the union with a list of eligible voters and their home addresses. However, the parties disputed whether those addresses were legally sufficient. Sixty to 70 percent of employees’ personnel files contained a P.O. Box address as a mailing address, yet the eligible voter list provided by the employer included only residential addresses for 37 of the 39 bus drivers. Consequently, 22 of the 39 meeting invitations sent out by the union were returned to the union as undeliverable, and the meeting drew only seven employees.

The first election resulted in a 21-18 vote against the union. The union filed an objection to the election contending that the employer had provided invalid mailing addresses. The objection was sustained, the election result was vacated, and a second election was ordered. The union won the second election by a vote of 17 to 14. This time, the employer filed objections contending that two union supporters had threatened “to kill” a third employee if he did not vote for the union. After viewing surveillance video of the alleged threat, a hearing officer overruled the employer’s objection. The Board certified the union as bargaining representative, but the employer refused to bargain with the union.

The Board found that the employer unlawfully refused to bargain. It ordered the employer to bargain and to refrain from otherwise interfering with the drivers’ right to representation. The employer petitioned the appeals court for review, challenging the invalidation of the first election and certification of the second election.

Scope of the Excelsior rule. At issue was the Board’s application of the Excelsior rule, which requires an employer to provide the regional director with a list containing the names and addresses of all eligible voters within seven days after approval of an election agreement. The employer contended that the Board misapplied Excelsior when it vacated the results of the first election. It argued that the Excelsior rule required it to furnish only the bus drivers’ home addresses, characterizing the Board’s requirement that it furnish mailing addresses a “newly articulated” extension of Excelsior. But this argument missed the mark. It is true that Excelsior at times used the phrase “home addresses” and, in most instances, home addresses will suffice, the appeals court said. However, Excelsior never limited the production of address information solely to home addresses, observed the court.

Under Excelsior, an employer is under a duty to provide “complete and accurate” information as to names and addresses of eligible voters. In this instance, the employer was well-acquainted with the mail delivery system in the community which is unique in that mailing addresses are generally P.O. Boxes, not residential street addresses. Moreover, the employer admitted that up to 70 percent of its employees used P.O. Boxes, yet it failed to provide this information to the union. The appeals court found no reason why the employer could not have given the union the P.O. Box numbers or both residential and P.O. Box numbers. Consequently, under the circumstances of this case, the appeals court affirmed the Board’s finding that the employer failed to provide the union a proper and accurate list of employees, in contravention of Excelsior.

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