GARDA WORLD SECURITY CORPORATION d/b/a GARDA CL ATLANTIC, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594 Garda World Security Corporation d/b/a Garda Cl Atlantic, Inc. and International Union, Security, Police and Fire Professionals of America (SPFPA), Petitioner. Case 10–RC–15788 February 1, 2011 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES The National Labor Relations Board, by a three- member panel, has considered objections to an election held on July 21, 2010, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 30 for and 29 against Petition- er, with no challenged ballots. The Board has reviewed the record in light of the ex- ceptions and has adopted the hearing officer’s findings and recommendations only to the extent consistent with this Decision and Direction of Second Election. The hearing officer recommended overruling the Em- ployer’s objections in their entirety. Contrary to the hearing officer, and for the reasons set forth below, we find merit in the Employer’s objections alleging that the Board agent’s conduct in closing the polls early possibly disenfranchised a determinative number of voters. On the day of the election, voting was conducted over two sessions, morning and afternoon. The morning ses- sion was scheduled to be held from 5:30 to 8:30 a.m. During the morning voting session, there was a 5-minute discrepancy between the (later) time shown on the Board agent’s watch and the Employer’s timeclock. This had been brought to the Board agent’s attention at the preelection conference, when the Employer requested that its timeclock time be used. The Board agent de- clared her watch the official timepiece.1 According to credited testimony,2 the Board agent be- gan taking down the election equipment, including the voting booth, at 8:27 a.m. At 8:29 a.m. (or 8:24 a.m. according to the Employer’s timeclock), three eligible voters appeared to cast their votes. The Board agent told these voters that they could either cast their ballots under challenge or return during the second session, and the voters left without voting. The Employer contends that other eligible voters might have been in the hallway out- side the polls and might have overheard what the Board 1 Uncontradicted testimony reflects that the Board agent changed her watch to coincide with the Employer’s timeclock before the afternoon voting session. 2 There were no exceptions to the hearing officer’s credibility find- ings. agent said to the three voters, or that one or more of the three might have told others arriving to vote that the polls were closed.3 The hearing officer found that the Board agent closed the first session polls early, but did not recommend set- ting aside the election. Saying that “whether a voter was possibly disenfranchised . . . requires some assessment of the possible effect” of the early closure, the hearing of- ficer rejected the Employer’s argument as resting “entire- ly on speculation.” Absent evidence that at least one employee was in the hallway at the relevant time or that the three would-be voters did converse with at least one employee when they exited the polls, the hearing officer concluded that the Employer failed to show that at least one voter was possibly disenfranchised by the early clo- sure. The Board applies an objective standard to potential disenfranchisement cases in order to maintain the integri- ty of its own election proceedings. See Wolverine Dis- patch, Inc., 321 NLRB 796, 797 (1996). Under that standard, an election will be set aside if the objecting party shows that the number of voters possibly disen- franchised by an election irregularity is sufficient to af- fect the election outcome. See id. at 796; Dayton Malleable Iron Co., 123 NLRB 1707, 1709 (1959). As clearly demonstrated in prior Board cases, such election irregularities include the polls being closed at a time when they should be open. See Wolverine Dispatch, supra, 321 NLRB at 796–797; Whatcom Security Agen- cy, Inc., 258 NLRB 985, 985 (1981); Repcal Brass Mfg. Co., 109 NLRB 4, 5 (1954). As an example, in Wolverine Dispatch the Board agent took the ballot box and left the polls for a few minutes in the middle of the session. Setting aside the election, the Board reasoned that during those few minutes it was “possible” that a number of voters sufficient to affect the outcome arrived at the polls, found no one present, and departed unnoticed. 321 NLRB at 796–797. Similarly, here, it was possible, as the Employer contends, that a unit employee—just one would have been enough— about to enter the polls might have overheard the Board agent telling the three to come back in the afternoon, or that the three, immediately upon leaving the polling place, might have told that voter that the polls were closed. That possible scenario, like the possible scenario in Wolverine Dispatch, suffices to show a possibility of disenfranchisement.4 3 The three employees voted during the afternoon session. 4 Chairman Liebman observes that setting aside an election based on a hypothetical possibility of disenfranchisement risks upsetting em- ployees’ validly expressed desires. In her view, a better approach might be to ask whether, based on a “practical judgment” of the facts, 356 NLRB No. 91 GARDA CL ATLANTIC, INC. 595 It remains only to assess whether a determinative number of voters were potentially disenfranchised. The approximate number of eligible voters was 79, 59 ballots “the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election.” Polymers, Inc., 174 NLRB 282, 282 fn. 6 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970). No party, however, has asked the Board to adopt such a standard. were cast, and the electoral margin was 1 vote. Approx- imately 20 eligible voters did not cast ballots. According- ly, we shall sustain the Employer’s objections, set aside the election, and direct that a new election be held. [Direction of Second Election omitted from publica- tion.]