Physicians & Surgeons Ambulance Service, Inc. dba American Medical Response

National Labor Relations Board - Board Decisions

Nov 30, 2010

356 N.L.R.B. 199 (N.L.R.B. 2010)

AMERICAN MEDICAL RESPONSE 199
Physicians & Surgeons Ambulance Service, Inc. d/b/a
American Medical Response and Teamsters Lo-
cal 507 a/w International Brotherhood of Team-
sters. Case 8–RC–17008
November 30, 2010
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
The National Labor Relations Board has considered
objections to an election held on November 19, 2009,
and the Regional Director’s report recommending dispo-
sition of them. The election was conducted pursuant to a
Stipulated Election Agreement. An initial tally of ballots
was issued, followed by a revised tally of ballots that
shows 19 for and 17 against the Petitioner, with no chal-
lenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the Regional Director’s
findings and recommendations, and finds that a certifica-
tion of representative should be issued.
The issue raised by the Employer’s exceptions is
whether the Board agent set up the polling area in a
manner that compromised the secrecy of the voting pro-
cess. The Regional Director issued a report recommend-
ing overruling the objections. We adopt the Regional
Director’s recommendation.
The polling place was a crew room located inside the
Employer’s operational facility. The voting booth set up
in this room was the Board’s “table-top” model, a struc-
ture that resembles a lectern desk used by a teacher for
classroom instruction. Unlike the Board’s standard metal
booth, which is a stand alone cubicle with curtains that
shield voters from head to lower torso, the Board’s alter-
native table top booth shields voters’ lower arms and
hands as they mark their ballots within the hollow con-
fines of the booth.
The Board agent placed the voting booth on a table 4
or 5 feet away from a second table where she and the
observers sat. There is nothing in the record to suggest
that the Employer objected to this arrangement at the
time. The Employer now argues on exception that be-
cause this setup allowed the observers to see the faces
and arm movements of voters as they marked their bal-
lots, the election lacked both privacy and secrecy and
must be set aside. We disagree.
In order to set aside an election based on Board agent
misconduct, there must be evidence that “raises a reason-
able doubt as to the fairness and validity of the election.”
Polymers, Inc., 174 NLRB 282, 282 (1969), enfd. 414
F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010
(1970). Where, as here, the alleged misconduct is the
Board agent’s failure to ensure the secrecy of voter bal-
loting, the Board will not set aside the election under the
Polymers standard absent evidence that someone wit-
nessed how a voter marked his or her ballot. Avante At
Boca Raton, 323 NLRB 555, 558 (1997).1
No such evidence was presented in this case. Alt-
hough the Employer submitted the affidavits of two vot-
ers, whose statements generally contested the Board’s
failure to provide them a more private voting environ-
ment, the affiants did not assert that anyone saw how
they or any other voter marked their ballots. Indeed, they
did not even state that they had the impression that their
ballot choices were witnessed. Absent evidence that
their ballots were seen, we find no basis under the Poly-
mers standard to question the fairness and validity of the
election.2
Our dissenting colleague would set aside the election
because the close proximity of the voting booth to the
observers “could have led employees to believe that they
were being observed as they voted,” citing Crown Cork
& Seal Co. v. NLRB, 659 F.2d 127, 131 (10th Cir. 1981),
cert. denied 454 U.S. 1150 (1982). This is not the cor-
rect analysis in this case. Although the Board has set
aside elections based on voters’ beliefs that they could be
observed while voting, even if their ballots were not ob-
served, it has done so only in cases like Columbine Cable
Co., 351 NLRB 1087, 1088 (2007), where employees
“voted without . . . a voting booth or a completely private
1 Accord: St. Vincent Hospital, 344 NLRB 586, 587 (2005) (election
not set aside because “there was no evidence” that the two employees
who may have been in the voting booth at the same time “observed
how the other was marking his or her ballot”).
Contrary to the Employer’s assertion, Objection 2 in Avante was not
limited to the close proximity of the ballot box to observers. It also
alleged that the “voting arrangements in the polling area . . . created the
impression that the observers and others could determine how employ-
ees voted in the election.” 323 NLRB at 557. In support of this allega-
tion, the employer presented employee Taylor who testified that she
thought she could be seen marking her ballot in the voting booth by the
seated observers. Id. at 558 fn. 11. In overruling Objection 2, the
hearing officer concluded that no one witnessed Taylor’s or any other
voter’s ballot choice inside or outside the voting booth (notwithstand-
ing that a translator was situated 2 to 6 feet from the voting booth). The
Board affirmed that finding.
2 We do not decide whether an election is to be set aside under
Avante if the evidence shows only that voters had the impression that
their ballot choices were witnessed. Assuming, arguendo, that the
holding in Avante should be interpreted this way, the evidence fails to
establish that any voter harbored this impression.
Having fully considered the Employer’s proffered evidence, we also
reject its alternative request that the case be remanded for a hearing on
its objections, as the objections fail to raise substantial and material
issues warranting a hearing.
356 NLRB No. 42

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
room.”3 The Board has never set aside an election on
this basis where, as here, the election was conducted us-
ing a Board-sanctioned voting booth. When such a booth
is used, the Board’s analysis is limited to whether a vot-
er’s ballot marking was observed by others while voting,
or before the ballot was deposited in the ballot box.4
The Employer having failed to present evidence that
voters’ ballot choices were seen by others, either inside
or outside the confines of the voting booth in this case,
we adopt the Regional Director’s recommendation to
overrule the Employer’s objections and certify the Peti-
tioner.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Teamsters Local 507 a/w International
Brotherhood of Teamsters, and that it is the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time wheelchair, EMT
basic, EMT intermediate, and EMT paramedics em-
ployed at the Employer’s facilities located at Cleveland
East 26309 Miles Road Suite 6, Warrensville Heights,
Ohio, 44128 and Cleveland West 13929 West Park-
way, Cleveland, Ohio, 44135 a/k/a Post 90 and Post 93,
but excluding all supervisors, managerial, sales em-
ployees, professional and office clerical employees, and
guards as defined by the Act.

MEMBER HAYES, dissenting.
I would set aside the election here based on the Em-
ployer’s objections to the Board agent’s placement of the
voting booth. My colleagues and I agree that, under
long-established precedent, the appropriate standard for
evaluating objections alleging Board agent misconduct is
3 Moreover, in Columbine, unlike here, one voter testified that his
ballot was 80-percent exposed. In Imperial Reed & Rattan Furniture
Co., 118 NLRB 911 (1957), cited by our dissenting colleague, employ-
ees marked their ballots on an improvised table, not a Board-sanctioned
booth. Notwithstanding that the observer could not see how the ballots
were marked, the Board found that the arrangements were “too open
and subject to observation” and set the election aside. Id. at 913. The
arrangements here, in contrast, were substantially more private.
4 Crown Cork & Seal, which our colleague cites, does not support
his position. The election in that case was conducted with Board-
sanctioned voting booths, and the issue raised by the employer’s objec-
tion was not, as our colleague suggests, whether the election should
have been set aside on the basis that employees could have believed
that they were observed while voting. Rather, the objection stated that
voters’ ballot “markings and choices” could be seen by the employer’s
observer. The court affirmed the Board’s overruling of the objection
because there was no evidence that the observer witnessed an election
choice while the ballots “were in the hands of voters,” nor was there
“evidence that the voters had reason to believe that their votes were
observable while in their hands.” 659 F.2d at 131.
whether it raises a reasonable doubt as to the fairness and
the validity of the election. See, e.g., Polymers, Inc., 174
NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969),
cert. denied 396 U.S. 1010 (1970). We disagree on the
application of that standard to the facts here.1
The Board agent placed the lectern-style voting booth
within 5 feet of the observers’ table, and directly facing
them. Notwithstanding that the agent used a Board-
sanctioned voting booth, as my colleagues note, the fact
remains that the faces and arm movements of the voters
were visible as they marked their ballots because of the
use of this particular booth, combined with its placement
and proximity to the observers. I find this voting ar-
rangement compromised the secrecy of the voting pro-
cess because it “could have led employees to believe they
were being observed as they voted.” Crown Cork & Seal
Co. v. NLRB, 659 F.2d 127, 131 (10th Cir. 1981), cert.
denied 454 U.S. 1150 (1982).2 In fact, the Employer’s
exceptions include the affidavits of two employees who
expressed the very belief that their privacy was compro-
mised. Particularly in an election where a single vote
change would have meant a different outcome,3 I find the
facts here sufficient to raise a reasonable doubt as to the
fairness and validity of the election, requiring that it be
set aside and a new election directed.4
1 Avante at Boca Raton, 323 NLRB 555 (1997), relied on by my col-
leagues, applies the Polymers standard but, contrary to the majority,
does not set out a new test requiring that someone witness how a voter
marked his or her ballot in order to set aside an election under Poly-
mers. Nor, contrary to the majority, are the holdings in Columbine
Cable, 351 NLRB 1087 (2007), and Imperial Reed & Rattan Furniture
Co., 118 NLRB 911 (1957), where the Board found objectionable vot-
ing arrangements which led employees reasonably to doubt the secrecy
of the elections, solely restricted to situations where improvised voting
arrangements were used.
2 I cite this case for the Board standard that the Court applied (a
standard with which I agree) not for the case’s specific facts.
3 The closeness of the election makes even more troublesome the
Regional Director’s summary disposition of this objection without
affording the Employer an opportunity to present evidence at a hearing.
See, e.g., NLRB v. Bristol Spring Mfg., 579 F.2d 704 (2d Cir. 1978),
denying enforcement of 231 NLRB 568 (1977).
4 Compare Imperial Reed & Rattan Furniture Co., supra (Board set
aside election, decided by one vote margin, because voters marked
ballots at improvised voting table 7 feet away from observers and with-
in their line of vision).
My colleagues ultimately claim that because the Board agent used a
“Board-sanctioned voting booth,” the Board’s analysis is limited only
to whether a voter’s ballot was in fact seen while voting or before put-
ting the ballot in the ballot box. They cite no precedent for this broad
pronouncement and I am aware of none. Rather, all the circumstances
of a particular election must be assessed in determining whether the
secrecy of the balloting was compromised. In this case, I find that it
was.