Oneida County Community Action Agency

National Labor Relations Board - Board Decisions

Jun 14, 1995

317 N.L.R.B. 852 (N.L.R.B. 1995)

852
317 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of exceptions, we adopt pro forma the Regional
Director’s recommendations concerning the challenged ballots and
the Employer’s Objection 1.
2 As the Employer has noted, the Regional Director overstated the
percentage of eligible voters whose ballots will be counted. There
will be 60, not 65, ballots counted, or approximately 79 (not 85) per-
cent of the 76 eligible employees. This apparently inadvertent error
does not affect the validity of the Regional Director’s ultimate find-
ings or his recommendations.
3 In agreeing with his colleagues that the Regional Director did not
clearly abuse his discretion in ordering a mail ballot election, Mem-
ber Stephens finds that the circumstances presented here are mark-
edly different from those addressed in his dissenting opinion in
Shepard Convention Services, 314 NLRB 689, 690 (1994), in which
Member Stephens would have found that the Regional Director per-
missibly declined to direct a mail ballot election.
Oneida County Community Action Agency, Inc.
and Civil Service Employees Association Local
1000, AFSCME, AFL–CIO, Petitioner. Case 3–
RC–10156
June 14, 1995
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
and objections in an election held by mail ballot be-
tween December 15, 1994, and January 3, 1995, and
the Regional Director’s report recommending disposi-
tion of them. The election was conducted pursuant to
the Regional Director’s Decision and Direction of
Election. The tally of ballots showed 30 for and 27
against the Petitioner, with 4 challenged ballots. The
challenged ballots are sufficient in number to affect the
results of the election.
The Board has reviewed the record in light of the
exceptions1 and brief and has adopted the Regional Di-
rector’s findings2 and recommendations.3
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 3 shall, within 14 days of this Decision, Direc-
tion, and Order, open and count the ballots of Tara
Day, Gwen Dean, and Dawn Landry and thereafter
prepare and serve on the parties a revised tally of bal-
lots. If the revised tally shows a victory by the Peti-
tioner by a margin of two or fewer votes, the Employ-
er’s Objection 1 shall be sustained insofar as it alleges
that John Marmol and Mary Petronella were
disenfranchised because the Resident Office failed to
send them duplicate ballot kits. In that event, the elec-
tion shall be set aside and a rerun election shall be
conducted. If the revised tally shows a victory by the
Petitioner of three or more votes, or if it shows a tie
vote or a majority against representation, the Employ-
er’s Objection 1 shall be overruled in its entirety, and
the Regional Director shall issue the appropriate cer-
tification.
ORDER
IT IS ORDERED that this proceeding is remanded to
the Regional Director for Region 3 for further appro-
priate action.
MEMBER TRUESDALE, concurring.
I agree with my colleagues that the challenges to the
mail ballots of employees Tara Day, Gwen Dean, and
Dawn Landry should be overruled and their ballots
opened and counted. The Board agent challenged their
ballots on the ground that the ballots were not received
at the Albany Resident Office by the close of business
on January 3, 1995, the deadline set for return of the
ballots. The Resident Office did receive their ballots
the next day, January 4, however, and the Board agent
had them in his possession when the count was con-
ducted on January 5. Because the Petitioner originally
refused to agree to count these ballots, they were re-
corded on the tally as challenged ballots. Subsequently,
however, the Petitioner agreed that these three ballots
should be counted.
The Board’s general rule with respect to late-re-
ceived mail ballots, as set forth in NLRB Casehandling
Manual (Part Two) Representation Proceedings, Sec.
11336.4, is that
Envelopes received after the close of business on
the return date should be kept separated from
those timely received. The Board agent should
void these ballots as ‘‘untimely’’ at the checkoff.
However, if all parties agree to waive the dead-
line, such ballots will be opened and counted.
Applying this rule here, the Regional Director in his
report made the recommendation, which my colleagues
and I have adopted, to overrule the challenges to these
ballots on the ground that both the Employer and the
Petitioner agreed that they should be opened and
counted. The Regional Director further stated, how-
ever, that ‘‘even absent agreement of the parties,
counting these ballots would be consistent with the ob-
jective of permitting the broadest possible participation
of eligible employees in Board conducted elections.’’
I endorse the Regional Director on this point and agree
with him that ballots received after the return date, but
before the time set for the mail ballot count, should be
included in the count. Indeed, for the reasons set out
below, I believe that the Board’s mail ballot election
process would be best served if the ‘‘return date’’ re-
quirement were abolished altogether and the Board
agent simply included in the ballot count all ballots
that the Regional Office received prior to the time
fixed for the counting of ballots.
In Queen City Paving Co., 243 NLRB 71 (1979),
the Board relaxed the general rule set out in Sec.
853ONEIDA COUNTY COMMUNITY ACTION AGENCY
11336.4, above, and, notwithstanding that there was no
waiver of the deadline, directed that a ballot mailed 3
days before the deadline be opened and counted be-
cause ‘‘it was reasonable for [the employee] to assume
that, in the normal course of the mails, his ballot
would be received by the Regional Director prior to
the closing date.’’
In Kerrville Bus Co., 257 NLRB 176 (1981), the
Board further relaxed the rule by directing that, in ad-
dition to five ballots that had been mailed at a time
when the employees could reasonably anticipate timely
receipt, two additional ballots should be counted al-
though timely receipt could not have been anticipated
(one was mailed on a Sunday, the day before the due
date, and the other on the due date). Citing several fac-
tors to be considered, the Board concluded that the
ballots should be counted as a matter of fundamental
statutory policy to afford employees the broadest pos-
sible participation in Board elections as long as the
election procedures are not unduly interfered with or
hampered.
Perhaps as a result of Kerrville, Sec. 11336.4 was
amended to add that ‘‘[a]s long as the election proce-
dure is not unduly interfered with or hampered, ballots
received after the established date of receipt, but be-
fore the count, may be opened and counted in certain
circumstances.’’ This broader rule was applied in
American Driver Service, 300 NLRB 754 (1990).
I think it is fair to anticipate that as a result of budg-
et restrictions and efforts underway to reinvent the
NLRB as well as the Federal government generally,
there may well be an increased use of mail ballots,
with a concomitant increase in the number of problems
reflected by the cases cited above. I believe that Board
should resolve these problems now by abolishing the
‘‘return date’’ approach altogether. Under this sce-
nario, the Board should announce that henceforth mail
ballots will be counted on a date agreed on by the par-
ties or established by the Regional Director in an ap-
propriate case, that all ballots received before the count
begins will be counted, and that ballots received after
the count begins will not be counted. In effect, the
Board has already adopted this policy without saying
so, inasmuch as it will overrule challenges to mail bal-
lots regardless of when they are received so long as
the counting of the ballots has not begun. American
Driver Services, above.
Pending a stated change in policy, however, I agree
that the ballots in question here should be counted as
they were received prior to the ballot count and the
parties agreed that they should be opened and counted.