Inns Of Evergreen - South

140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Evergreen Health Group, Inc. d/b/a Inns of Ever- green - South and District 1199-E, National Union of Hospital & Health Care Employees, AFL-CIO, Petitioner. Case 5-RC-13113 August 18, 1989 DECISION AND ORDER REMANDING BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY The National Labor Relations Board, by a three- member panel, has considered objections to an election held on November 16, 1988,1 and the Acting Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 47 for and 113 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and brief, and has adopted the Acting Regional Director's findings and recom- mendations only to the extent consistent with this Decision and Order Remanding. - The Acting Regional Director rejected the Peti- tioner's objections as untimely. The Petitioner ex- cepts, contending that the objections were timely filed. We find merit in the Petitioner's exceptions. The election concluded at 11:30 p .m. on Novem- ber 16, after which time the ballots were counted. Thereafter, the tally of ballots was prepared and served on the parties. The Petitioner filed its objec- tions in the Regional Office on November 25. The Acting Regional Director found that the ob- jections were not timely filed in accordance with Secs. 102.69(a) and 102.111(b) of the Board's Rules and Regulations.2 The Acting Regional Director noted that the Petitioner did not assert that the tally of ballots was served after 12 midnight, that any delay occurred in order to discuss challenges or any other matter, or that the Region varied i All dates are in 1988 unless otherwise noted z Sec 102 69(a) provides, in pertinent part Within 7 days after the tally of ballots has been prepared , any party may file with the Regional Director an original and five copies of objections to . . conduct affecting the results of the election, which shall contain a short statement of the reasons therefor Such filing must be timely Sec. 102 111 (b) provides, in pertinent part. (b) When the Act or any of these rules require the filing of a motion, brief, exception, or other paper in any proceeding , such doc- ument must be received by the Board or the officer or agent desig- nated to receive such matter before the close of business of the last day of the time limit , if any, for such filing In construing this section of the rules, the Board will accept as timely filed any docu- ment which is hand delivered to the Board on or before the due date or postmarked on the day before (or earlier than ) the due date, docu- ments which are postmarked on or after the due date are untimely. Provided. however, the following documents must be received on or before the close of business of the last day for filing (3) Objections to elections and revised tallies. from the Board's established practice and proce- dure in counting the ballots or in the preparation of the tally. The Acting Regional Director concluded that, "absent any evidence that the tally was not served until after midnight on November 23 [sic], 1988, the objections have not been timely filed. The Petitioner concedes that if the tally of bal- lots were prepared prior to 12 midnight on No- vember 16, the objections, to be timely, should have been filed by the close of business on Novem- ber 23. However, the Petitioner contends that there is a "patent lack of record evidence" for the Acting Regional Director's conclusion that the tally was prepared prior to midnight on November 16 and that nothing in the Board 's Rules and Regu- lations requires an objecting party "to assert also that it considers its own filing timely or to state the reasons therefor." Accordingly, the Petitioner con- tends that the 7-day period for filing objections should begin on November 17 and thus its objec- tions were timely filed on November 25. 3 Based on the fact that the election was conclud- ed at 11 :30 p.m. and that 160 ballots had to be counted and the tally prepared, we find it improb- able that the tally was prepared prior to midnight on November 16.4 Therefore, under these limited circumstances, we would not apply Sec. 102.69(a) so as to reject the Petitioner's objections as untime- ly. Accordingly, we,accept the Petitioner's objec- tions and remand the case to the Regional Director to consider the merits of the Petitioner's objections. 9 November 24 (Thanksgiving Day) was a legal holiday and would therefore not be included in computing the 7-day period See Sec. 102 111 (a) of the Board's Rules 4 Our dissenting colleague takes issue with our assessment of the prob- abilities and relies on the section of the Board 's Case Handling Manual that suggests that 1000 votes per hour can be counted. What our dissent- ing colleague overlooks, however, is the sequence of events that must occur before any votes can be counted . Thus, after the Board agent closed the polls at 11 .30 p in., he had to seal the ballot box; ask each ob- server to sign the certification on conduct of election, collect all Board property, including the removal of signs that he had posted and the dis- mantling of the election booth(s), if used; proceed to the place where the ballots would be counted, instruct those assembled as to the counting procedures, attempt to resolve any challenged ballots (although there were no challenged ballots remaining after the count, there may well have been some that were resolved prior to the count ), and open the ballot box and intermix the ballots Secs 11324, 11340 1-11340 4 of the Board's Casehandling Manual (Part 2) In our view, although it may be possible, we think it most unlikely that all of these events, as well as the actual counting of the ballots and the preparation of the tally , occurred in a 30-minute period Further , while we agree that the burden is on the objecting party to furnish evidence in support of its objections, in the unique circumstances of this case , it is not its burden to establish exactly when the count began and when it ended Finally , we reject any reliance on the date placed on the tally of ballots, which it appears had been typed on the form by someone in the Regional Office prior to the elec- tion 296 NLRB No. 27 INNS OF EVERGREEN - SOUTH ORDER IT IS ORDERED that the Petitioner's objections are accepted and that the above-entitled matter is remanded to the Regional Director for Region 5 for further appropriate action. MARY MILLER CRACRAFT, dissenting. I would affirm the Acting Regional Director's determination that the Petitioner's objections were not timely filed . Contrary to my colleagues, I would find the Petitioner's exceptions are inad- equate and that the evidence before us supports the Acting Regional Director's determination. More- over, I believe my colleague's assessment of certain probabilities is questionable. The Petitioner filed objections to the November 16, 1988 election, which was completed at 11:30 p.m. There is no contest that, if the tally of ballots had been prepared prior to midnight, the objections were untimely or that, if the tally had been pre- pared after midnight, the objections would be timely. In concluding that the objections were un- timely, the Acting Regional Director found that the tally was prepared immediately after the 11:30 p.m. election and that the Petitioner made no asser- tion that the tally was served' after midnight, that there were any delaying factors, or that the Region departed from established practices. In its exceptions the Petitioner does not assert, let alone proffer evidence , that the tally was pre- pared after midnight, but argues instead that the Acting Regional Director's conclusion is unsup- ported by the record . I would find that the Peti- tioner's exceptions are legally inadequate. Regard- ' Actually, the critical event is the preparation of the tally, not its serv- ice 141 less of the nature of the Acting Regional Director's investigation, the Petitioner at this stage of the pro- ceeding is required to furnish the Board with evi- dence that would warrant reversing the Acting Re- gional Director's determination. It has failed to do so. See Howard Johnson Distribution Center, 242 NLRB 1284 (1979). Although that case concerned the substance of objections, I believe the principle is equally applicable to timeliness. Furthermore, contrary to the Petitioner's conten- tion, there is limited documentary evidence sup- porting the Acting Regional Director's determina- tion, namely, the tally of ballots that is dated No- vember 16. The Petitioner does not assert or prof- fer evidence that the date recorded on the tally is wrong. In addition, the dated tally put the Petition- er on notice that exceptions were due 7 days from the tally's date. Finally, my colleagues, without explication, find "it improbable that the tally was prepared prior to midnight on November 16." I would not reverse the Acting Regional Director based on bare specu- lation. Moreover, I believe my colleagues' assess- ment of the probabilities is questionable. Sec. 11340.1 of the Board's Case Handling Manual sug- gests a different assessment of the probabilities. It states that "the Board agent should be aware that, using the `formal' [as opposed to the faster 'infor- mal'] method of counting . . . each counting table .. . can dispose of approximately 1,000 votes per hour. . . ." Here there were only 160 votes to count (and 1 void ballot) and no indication of any problem that would delay the count. For the above reasons, I would affirm the Acting Regional Director's determination that the objections were untimely filed and would certify the results of the election.