Whatcom Security Agency, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 985 (N.L.R.B. 1981)

WHATCOM SECURITY AGENCY. INC.
Whatcom Security Agency, Inc. and International
Union of Security Officers, Petitioner. Case 19-
RC-9996
September 30, 1981
DECISION AND DIRECTION OF THIRD
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to a Decision and Direction of Second
Election dated March 10, 1981, a second election
by secret ballot was conducted on April 14, 1981,
under the direction and supervision of the Acting
Regional Director for Region 19, among the em-
ployees in the unit found appropriate in the above-
mentioned decision. Following the election, the
Acting Regional Director served on the parties a
tally of ballots which showed that, of approximate-
ly 79 eligible voters, 30 cast ballots for, and 21
against, the Petitioner; there were 4 challenged bal-
lots, an insufficient number to affect the election
results.
On April 16, 1981, the Employer filed timely ob-
jections to the election. The Acting Regional Di-
rector conducted an investigation in accordance
with the Board's Rules and Regulations. On June
26, 1981, he issued and served on the parties his
Report on Objections to Second Election in which
he recommended that the Employer's objection be
overruled and that the Board issue a certification of
representative. Thereafter the Employer filed
timely exceptions to the Acting Regional Direc-
tor's report and recommendations.
The Employer objected to the election on the
ground that the doors to the polling place in Bel-
lingam, Washington, were locked for a substantial
period of time thereby preventing all eligible voters
from voting. The evidence revealed that, despite
advance precautions that were taken to insure
access to the polling area, the doors to the building
were inadvertently locked by a third party for ap-
proximately 50 minutes prior to the end of the
afternoon polling period. Approximately 14 eligible
voters scheduled to vote at the polling place site
involved in the Employer's objection did not vote.'
The Acting Regional Director contacted 12 of
these employees to ascertain their reasons for not
'In addition, approximately 31) emplocees were expected to vole it a
second polling place site, of whom 10 did not vote
voting.2 On the basis of his investigation, he con-
cluded that only two employees had been denied
the opportunity to vote and therefore it was hypo-
thetically impossible for the outcome of the elec-
tion to have been affected.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the Acting Regional
Director's report, the Employer's exceptions there-
to, and the entire record in this case. We are
unable to agree with the Acting Regional Direc-
tor's recommendations.
We are not persuaded by the Acting Regional
Director's investigation and his analysis of its re-
sults that only two employees were prevented from
voting because of the locked doors. In our opinion,
the investigation by the Acting Regional Director,
consisting of polling eligible employees who did
not vote, and his reliance on the impressions of the
employees in question obtained at various times
and under varying circumstances after the instant
election, is not a proper method of determining
voting intentions and is inconsistent with Board
precedent. 4 Moreover, where the irregularity con-
cerns an essential condition of an election, and calls
into question a determinative number of ballots to
affect the outcome, to maintain the Board's high
standards the election must be set aside.' Thus,
under all the circumstances, and particularly since
the large number of nonvoters could have affected
the election results, we find that the deviation from
our normal election procedures created doubt and
uncertainty as to the results of the instant election
which warrant setting aside the election and hold-
ing a new one."
[Direction of Third Election and Excelsior foot-
note omitted from publication.]
' Of the remaining two eligible nonvoiers, the Employer asserts that
one was unable to ote because of the locked doors The remaining non-
oter was unreachable
I The Acting Regional Director made no attempt to contact the re-
maining 10 non;oters referred to in fn. I
' .H R. outdrv Division. The Davron Malleablh Iron Compalr. 123
NLRB 1707 (1959); see also Jobbers .Weat Packing Co. 252 NLRB 41
(1980) Litton Dental Producit Division of Litton Industrial Products /Inc .
221 NLRB 700, 708 (1975)
' .New York Telephone Co.. 109 NLRB 788, 790 (1959) See also Kerona
Plasiic Extrusion Comptan. 196 NLRB 1120 (1972); The .Ny'ack Ilospital.
238 NLRH 257 (1978).
` We do not find that an affidavit submitted by a union representative
attesting lo whal he saw take place at the polling site warrants a hearing
on this issue. A hearing on this contention would for the most part
merely adduce subjective reasons of eligible emplosecs as to wh) the~
did notl sole, which is contrarn to G.IL R. IFoundrt. iipru.
258 NLRB No. 127
985