Henry Street Settlement

HENRY STREET SETTLEMENT Henry Street Settlement and District 1199, National Union of Hospital & Health Care Employees, RWDSU, AFL-CIO. Case 2-RC-19552 29 November 1985 DECISION AND DIRECTION OF SECOND ELECTION B)( CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered an objection and de- terminative challenges in a mail ballot election ending 2 September 19831 and manual ballot elec- tion held 9 and 12 September and the Regional Di- rector's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 17 for the Petitioner, 18 for the Intervenor,2 and 28 against participating labor organizations, with 115 challenged ballots, a sufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, and adopts the Regional Director's findings and recommendations only to the extent consistent herewith. The Employer's objection alleged improprieties in the mail ballot portion of the election because a large percentage of the mail ballots were received after the 2 September deadline. In recommending that the objection be overruled, the Regional Di- rector found no evidence of fraud or impropriety in the handling of the ballots or that the ballots were not handled in accordance with standard agency procedures. The Regional Director also recommended opening and counting 89 of the 115 challenged ballots. In its exceptions to the Regional Director's report the Employer alleged, inter alia, that a dis- crepancy existed between the total number of votes cast as disclosed in the tally of ballots and the total number of votes cast as revealed by the Regional Director's investigation. The tally of ballots shows that there were 63 valid votes counted, 115 chal- lenged ballots, and 7 void ballots for a total of 185 votes cast. On pages 6-7 of his report, the Regional Director indicated that about 41 mail ballots were received by the Region by the 2 September dead- line, 82 were received by the Region on 7 Septem- ber, and approximately 30 employees voted in the manual portion of the election for a total of 153 votes cast. The Employer argued that the Regional 1 All dates refer to 1983 unless otherwise stated 2 Local 32B-32J-144, Service Employees International Union, AFL- CIO, was an Intervenor In this proceeding 901 Director's failure to account for the, discrepancy destroyed the integrity of the election, , On 13 July 1984 the Board remanded the case to the Regional Director for clarification on the cor- rect number of votes cast. On 10 September 1984 the Regional Director responded that the tally of ballots stated the correct number of mail ballots cast (185) and that the report understated the number of mail ballots received by 2 September, According to the Regional Director, 64 mail bal- lots were received in a timely manner and not 41 as the report indicated. The Regional ]Director also reaffirmed the accuracy of the other figures. In its exceptions to the Regional Director's re- sponse, the Employer contends that the Regional Director's failure to explain the origins of the error further supports the Employer's demand for a new election. We agree that a second election should be con- ducted. Here the Regional Director's error con- cerned an essential condition of the election proc- ess---the total number of votes cast. The Regional Director's response to the remand failed to clarify the earlier error. According to the Regional Direc- tor's response, the total of 153 votes cast listed in the Regional Director's report should be increased by 23 votes to 176 because there were 64 timely mail ballots instead of 41. However, this total of 176, even if it does not include the void ballots, still does not equal the 185 listed in the tally of bal- lots which the Regional Director indicated was correct. It is well established that the Board's role in con- ducting elections must not be open to question.3 In New York Telephone Co.4 a discrepancy existed be- tween the number of returned ballots and the number of tallied ballots. The missing ballots were eventually accounted for and there was no evi- dence of tampering. The Board nevertheless direct- ed a second election because a question existed as to the validity of the election process. We find that a question as to the validity of the election process also exists here. The proceeding was originally remanded to the Regional Director because the Board could not render an accurate de- cision on the merits until the discrepancy in the number of votes cast was adequately explained. The Regional Director's failure to account ade- quately for the discrepancy not only precludes us again from issuing a decision on the merits but also calls into question the validity of the election proc- ess itself. Under these circumstances, and in the in- terest of maintaining our election standards, it is 3 Paprikas Fono, 273 NLRB 1326, 1328 fn 3 (1984) 4 109 NLRB 788 (1954) 277 NLRB No. 86 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to set aside the election and direct a new one. [Direction of Second Election omitted from pub- lication.] 5 Because we are directing a second election in this case, we find it unnecessary to pass on the Regional Director's recommendations con- cerning the Employer's objection and the determinative challenged bal- lots However, we note that the objection alleged several improprieties in the mail ballot portion of the election, including the stockpiling of ballots at the post office and a discrepancy between the number written on the bundle of untimely mail ballots-42-and the actual number received- 82. These unexplained occurrences together with the closeness of the re- sults further support our decision to direct a second election MEMBER DENNIS, concurring. ,I concur in the decision to direct a second elec- tion. Applying the standard set forth in my dissent- ing opinion in Paprikas Fono, 273 NLRB 1326, 1331 (1984), I find that the lingering discrepancy between the tally of ballots on the,one hand and the Regional Director's reports on the other con- cerning the total number of ballots cast raises "a reasonable doubt as to the election's fairness and validity."