International Total Services, Inc.

INTERNATIONAL TOTAL SERVICES 201 Security '76/Division of International Total Serv- ices, Inc. and National Brotherhood of Security Officers, Petitioner. Case 5-RC-12049 21 September 1984 DECISION AND DIRECTION OF THIRD ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The National Labor Relations Board, by a three- member panel, has considered a determinative chal- lenge in, and an objection to, a mail-ballot rerun election held between 13 January and 27 January 1984 1 and the Regional Director's Report recom- mending their disposition. The Board has reviewed the record in light of the exceptions and briefs, and adopts the Regional Director's findings and conclu- sions only to the extent consistent herewith. The Regional Director found that of the 31 bal- lots which were mailed to eligible voters, 7 were returned by the Postal Service as undeliverable, 17 voters did not return their ballots, and 7 ballots were returned—one being void. The Regional Di- rector recommended that the petition be dismissed without prejudice, finding that the participating percentage of 19 percent failed to result in a repre- sentative vote. 2 While we agree that the vote ' The election was conducted pursuant to a Direction of Second Elec- tion The tally was three votes for the Union and two against, there was one void ballot and I challenged ballot, a number sufficient to affect the results 2 The Regional Director found that even assuming, arguendo, that the void ballot is a display of voter Intent or participation, the participating percentage is only 23 percent, and would still not constitute a representa- tive vote should not result in a certification, we do so for the following reasons. In our view, the return of the seven undelivera- ble ballots is tantamount to a failure to provide notice of the election and an opportunity to vote to a full 23 percent of the eligible voters The nonre- ceipt of these ballots takes on added significance when one considers that this second election was being held specifically because the Regional Direc- tor found that the first election did not result in a representative vote. In our view, after the ballots were returned as undeliverable, additional steps should have been taken to increase the likelihood that eligible voters would at least receive their bal- lots, thereby giving them a choice in deciding whether to vote or not to vote and, if so, in favor of or against representation. Ordinarily, in the con- duct of a representation election, "where adequate opportunity to participate in the balloting is provided all those eligible to vote, the decision of the majority actually voting is binding on all." (Emphasis added.) S. W. Evans & Son, 75 NLRB 811, 813 (1948). Here, 23 percent of the eligible voters were effectively disenfranchised by the nonreceipt of their ballots. Accordingly, the election must be set aside. However, because the significant number of employees who had no opportunity to vote may well have contributed to the low voter participa- tion, we shall direct that a new election be held. In so doing, we urge the Regional Director and the parties to work together to explore alternative elec- tion procedures in order to ensure that all eligible voters have an opportunity to vote and to maxi- mize the probability of a representative vote. [Direction of Third Election omitted from publi- cation.] 272 NLRB No. 23