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

National Labor Relations Board - Board Decisions

Feb 1, 2011

356 N.L.R.B. 594 (N.L.R.B. 2011)

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.]