Baker Victory Services, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 2000

331 N.L.R.B. 1068 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
Baker Victory Services, Inc. and Communications
Workers of America, AFL–CIO, Petitioner.
Case 3–RC–10760
August 23, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND BRAME
The issue in this case is whether the election should be
set aside in either of the separate voting groups of profes-
sional and nonprofessional employees because severe
weather conditions on the day of the election reasonably
denied eligible voters an adequate opportunity to vote
and a determinative number did not vote. As explained
below, we reaffirm the standard articulated by the Board
in V.I.P. Limousine, Inc., 274 NLRB 641 (1985). Apply-
ing that standard to the facts of this case, we find that the
election conducted among the Employer’s professional
employees must be set aside.
Background
On December 17, 1998, the Regional Director for Re-
gion 3 issued a Decision and Direction of Election, pur-
suant to which an election was conducted among the
Employer’s professional and nonprofessional employees
on January 14, 1999. The Employer subsequently filed
objections to the election, contending primarily that se-
vere winter weather conditions during the week preced-
ing and on the day of the election denied the eligible vot-
ers an adequate opportunity to vote, such that a new elec-
tion should be held.
The Regional Director thereafter issued a supplemental
decision, overruling the Employer’s objections. Apply-
ing the standard set forth in the plurality opinion of
Members Stephens and Cohen in Glass Depot, Inc., 318
NLRB 766 (1995), she concluded that a “representative
complement” of eligible voters was able to vote despite
the weather conditions. The Regional Director also
found that the record, including the testimony of five
employees about why they did not vote, did not establish
that the weather conditions on the day of the elections
constituted an extraordinary circumstance under Board
law. Thus, she upheld the election and certified the Peti-
tioner as the bargaining representative of the employees
in both units. The Employer filed a timely request for
review of the Regional Director’s decision. The Board
granted the request for review on August 5, 1999. The
parties thereafter filed timely briefs on review.1
We have carefully considered the parties’ briefs on re-
view, as well as Board precedent, particularly V.I.P.
Limousine, supra, and the three separate opinions in
Glass Depot, supra. We conclude that the proper stan-
dard to be applied to the issue here is contained in V.I.P.
Limousine, i.e., an election should be set aside where
severe weather conditions on the day of the election rea-
sonably denied eligible voters an adequate opportunity to
vote and a determinative number did not vote. Accord-
ingly, we reaffirm that standard today, and we reject the
“representative complement” standard set forth in the
plurality opinion in Glass Depot. Applying the V.I.P.
Limousine standard to the facts here, we find that the
election should be set aside in the professional group
(group A) because severe weather conditions on the day
of the election reasonably denied eligible voters an ade-
quate opportunity to vote and a determinative number did
not vote.

1 The Petitioner has requested oral argument. The request is denied
as the record and briefs adequately present the issues and the positions
of the parties.
Facts
The Employer operates early childhood programs
(ECPs) in Buffalo, New York. As part of the ECPs, the
Employer provides services for children (for example,
early childhood services for infants, and special educa-
tion services for children ages 3 to 5 years old) at its two
school-based facilities,2 as well as at children’s homes
and other locations. The Petitioner filed a petition seek-
ing to represent various classifications of the Employer’s
ECP employees. The Regional Director directed an elec-
tion, finding appropriate two separate units of employ-
ees: one consisting of all professional employees and the
second consisting of all nonprofessional employees, vot-
ing groups A and B, respectively.3 The professional em-
ployees include, inter alia, teachers, on-going service
coordinators, caseworkers, developmental specialists,
various salaried therapists, and therapists employed on a
flat-fee-for-service basis (FFFS).
The full-time teachers and salaried therapists work on
a 10-month school year schedule, and are not required to
report to work when the school at which the ECP facility
is located is closed due to inclement weather. In con-
trast, the service coordinators, caseworkers, and devel-
opmental specialists work a 12-month schedule, and are
required to report to work even when the school facility
is closed. Additionally, the FFFS employees, who com-
prise approximately half of the professional employee
group, have widely varying work schedules and are not
required to regularly report to the ECP facilities. Many
of the FFFS employees maintain contact with the ECP
facility solely by telephone, fax, or mail.
The nonprofessional employees include teacher assis-
tants, personal care aides, and secretaries. Some of the
nonprofessional employees work a 10-month schedule
and others work a 12-month schedule. As with the pro-
fessional employees, those nonprofessional employees
who work a 10-month schedule are not required to report
2 The larger of the two programs is conducted from a school facility
in south Buffalo, the location at which the election was conducted.
3 Consistent with the principles set forth in Sonotone Corp., 90
NLRB 1236 (1950), the professional employees additionally were
provided the opportunity to vote for inclusion in a unit with the nonpro-
fessional employees or for separate representation.
331 NLRB No. 146
BAKER VICTORY SERVICES 1069
to work when the school is closed,4 but those who work a
12-month schedule are expected to report even when the
school is closed.
During the week in which the election was held, the
Buffalo area received a significant amount of snowfall:
7.5 inches on Monday, January 11, 1999;5 4 inches on
January 12; 5 inches on January 13; and 3.2 inches on
January 14, the day of the election. Additionally, data
from the Buffalo weather service indicated that the city
had received a total of 55.8 inches of snow during the
first 2 weeks of January. As a result of the significant
accumulation of snow, the mayor of Buffalo and Presi-
dent Clinton declared a state of emergency in the city for
the period from January 11 to 19 (which entitled the city
to Federal disaster assistance), and the school at which
the election was to be conducted was closed on the day
of the election.6 The Employer’s ECP facility at the
school, however, remained open.
The election was conducted as scheduled on January
14. The results of the election revealed that the Petitioner
received a majority of the votes cast in both the profes-
sional and nonprofessional voting groups. Among the
professional employees, 32 of 51 eligible employees
voted, with 17 voting for the Petitioner, 15 voting against
the Petitioner, and 1 challenged ballot;7 among the non-
professional group, 19 of 21 eligible employees voted,
with 17 voting in favor of the Petitioner and 2 voting
against the Petitioner.
The Employer subsequently filed objections to the
election, alleging that the severe weather conditions sur-
rounding the election denied the employees an adequate
opportunity to vote, thereby requiring that a new election
be held in both the professional and nonprofessional
units. The Regional Director, applying the “representa-
tive complement” test set forth by Members Stephens
and Cohen in Glass Depot, Inc., supra—pursuant to
which an election would be set aside if an extraordinary
circumstance resulted in the turnout of less than a “repre-
sentative complement” of voters—concluded that a new
election was not warranted.
The Regional Director found that although the weather
conditions on the day of the election were poor, they did
not constitute an “extraordinary circumstance.” In this
regard, the Regional Director found that there was no
driving ban in effect on the day of the election, the park-
ing lot at the Employer’s facility had been plowed, and
the Board agent as well as the employer and petitioner
representatives and observers were able to travel to the

4 According to one witness, however, several teacher assistants work
a 10-month school year schedule, but nevertheless are expected to
report to work on snow days.
5 Unless otherwise noted, all dates are in 1999.
6 The school was also closed the day preceding and the day follow-
ing the election.
7 The professional employees, by the same margin (17 to 15), voted
against inclusion in the unit with nonprofessional employees.
election site. The Regional Director also found that,
among the five employees who testified concerning their
failure to vote in the election, one attributed her failure to
vote to illness, and the others chose not to drive to the
polling place based on their perceptions of the severity of
the weather/driving conditions or the mistaken assump-
tion—which they did not attempt to verify—that the
election had been postponed as a result of the school’s
closure. More significantly, despite the weather condi-
tions, an examination of the number of voters who cast
ballots revealed a 70.8-percent overall voter turnout rate
(a 62.7-percent turnout rate among employees in voting
group A, and a 90.5-percent turnout rate among employ-
ees in voting group B). Based on these rates of voter
participation, in conjunction with her other findings, the
Regional Director concluded that a “representative com-
plement” of employees had voted in the election and the
election results should therefore be certified.
Analysis
The issue in this case is whether the election should be
set aside in either of the separate voting groups of profes-
sional and nonprofessional employees because severe
weather conditions on the day of the election reasonably
denied eligible voters an adequate opportunity to vote
and a determinative number did not vote. The starting
point for our analysis is the Board’s decision in V.I.P.
Limousine, Inc., supra at 641. In that case, a severe
snowstorm on the day of a deauthorization election re-
sulted in 20 inches of snow, rendering navigation of area
roads extremely difficult.8 Only 67 of the approximately
89 eligible voters voted, and the tally was 37–30. There-
fore, the number of nonvoters (approximately 22) was
determinative of the outcome. Both the employer and
the petitioner filed objections to the election, alleging
that the severe snowstorm that developed during the poll-
ing period prevented a substantial number of eligible
voters from reaching the polls and that the election
should therefore be set aside. Based on the evidence
concerning the weather and road conditions, the Board
concluded that the election should be set aside because
the snowstorm “affected the electorate as a whole” and
“[a] substantial number of employees did not vote in the
election.” Id. The Board reasoned as follows:

The Board is responsible for establishing the
proper procedure for the conduct of its elections. In
carrying out this responsibility, a primary concern of
the Board is whether employees are given a suffi-
cient opportunity to vote. While the Board is not re-
quired to guarantee that every voter is able to get to
the polls, when it is alleged that numerous employ-
ees were prevented from voting, the Board must as-
sess whether the particular circumstances so affected
8 Statements from 11 of the 22 nonvoting employees indicated that
the blizzard conditions caused many of them to be caught in traffic and
unable to reach the polls.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
a sufficient number of ballots as to destroy the requi-
site laboratory conditions under which elections
must be conducted. If there is a reasonable possibil-
ity that this occurred and a determinative number of
votes are called into question, to maintain the
Board’s high standards, the election must be set
aside.

Id. (citation omitted).
The Board subsequently revisited this issue in Glass
Depot, Inc., supra. There, a heavy snowstorm on the day
of the election prevented four employees, whose votes
would have been determinative,9 from reaching the poll-
ing site. The Board majority concluded that the election
results should not be set aside, but was split over the ra-
tionale for this result. Members Stephens and Cohen
indicated that they would set aside an election if an ex-
traordinary circumstance resulted in the turnout of less
than a “representative complement” of voters. Applying
this “representative complement” test to the facts in the
case, they concluded that, although the snowstorm might
have constituted an extraordinary circumstance, a “repre-
sentative complement” of voters (79 percent) had partici-
pated in the election and, thus, a new election was not
warranted. Chairman Gould, concurring, agreed with
their conclusion that the circumstances of the case did
not warrant setting aside the election, but based his con-
currence on the premise that, as in political elections, acts
of nature, such as a snowstorm, simply cannot constitute
an extraordinary circumstance for purposes of determin-
ing whether an election is valid. Significantly, Chairman
Gould criticized the “representative complement” test.
He rejected the use of a numerical analysis to determine
the validity of the election, and indicated that he would
instead set aside an election if an extraordinary circum-
stance—“such as where the winning party is responsible
for the tardiness of the late-arriving voters”—denied a
determinative number of voters the opportunity to cast
ballots, regardless of the number of employees who had
actually cast ballots.
In a dissenting opinion, Members Browning and
Truesdale expressed the view that the “representative
complement” test advocated by Members Stephens and
Cohen is “unworkable and will invite unnecessary litiga-
tion.” The dissenters indicated that, consistent with the
Board’s decision in V.I.P. Limousine, they would instead
analyze all the circumstances “to determine if the storm
or other force majeure was so severe that the eligible
voters, as a group, did not have an adequate opportunity
to vote.” 318 NLRB at 768. Applying that standard, the
dissenters concluded that the election should be set aside.
Having carefully considered the various standards set
forth in Glass Depot and the contentions of the parties in
the instant case, we conclude that the appropriate stan-

9 Fifteen of nineteen eligible employees voted in the election; the
tally was six for, and nine against, the union.
dard for determining whether to set aside an election
because of the effects of severe weather conditions is the
one set forth in V.I.P. Limousine: An election should be
set aside where severe weather conditions on the day of
the election reasonably denied eligible voters an adequate
opportunity to vote and a determinative number did not
vote. In our view, this standard best effectuates the
Board’s goal of ensuring maximum voter participation10
and properly places the focus on the right of all eligible
employees to cast ballots in the election. See, e.g.,
Yerges Van Liners, Inc., 162 NLRB 1259, 1260 (1967)
(“[i]t is the Board’s responsibility to establish the proper
procedure for the conduct of its elections, which proce-
dure requires that all eligible employees be given an op-
portunity to vote”). By contrast, the “representative
complement” test, which was rejected by three Board
Members in Glass Depot, is concerned only with the
proportion of eligible employees who actually voted,
without consideration of any potential interference with
the nonvoting employees’ right to participate in the elec-
tion. Moreover, the decision of the Regional Director in
the instant case demonstrates the problems with the ap-
plication of the “representative complement” test. Al-
though Members Stephens and Cohen indicated that the
test was not intended to be a single-factor analysis de-
pendent solely on the numerical percentage of participat-
ing voters, the percentage of participating voters never-
theless is likely to serve as the focus of the analysis in
any given case because it is easily quantifiable and ap-
pears to be the only concrete measure for determining a
“representative complement.” An additional problem
concerns the largely subjective determination as to
whether a particular percentage is sufficient to constitute
a “representative complement.” In this regard, we agree
with the Glass Depot dissenters that the “representative
complement” test is somewhat elusive and likely to in-
vite litigation.
Although the Regional Director in the instant case ap-
plied the “representative complement” test, she also indi-
cated that even if the V.I.P. Limousine standard—the
standard we reaffirm today—were to be applied, the re-
sult would be the same (i.e., the election results would be
upheld). We disagree. We believe that the circum-
stances of this case compel the conclusion that, as a re-
sult of the weather conditions, all voters were not af-
forded an adequate opportunity to vote. As previously
indicated, more than 4 feet of snow had fallen in the area
during the 2-week period preceding the election, and a
state of emergency had been declared for the city during
the week of the election. Moreover, the school at which
the Employer’s ECP is based was closed on the day of
the election, thereby relieving a significant number of
10 See Community Care Systems, 284 NLRB 1147 (1987).
BAKER VICTORY SERVICES 1071
employees of the obligation to report to work.11 For
these reasons, we conclude that eligible employees were
not afforded an adequate opportunity to vote. As the

11 The Employer contends that among the professional employees,
only approximately five of the employees work a 12-month schedule
(and are therefore required to report to work when the school is closed
for inclement weather), but that among the nonprofessional employees,
all but five employees are required to report to work when the school is
closed. The Employer therefore asserts that this distinction in em-
ployee reporting obligations is in part responsible for the disparity in
voter turnout rates between voting groups A and B; as such, the Em-
ployer implies that this disparity serves as evidence of the indirect
effect of the weather conditions on voter participation.
Although we could not ascertain from the record the precise number
of employees in each voting group who had an obligation to report to
work on the day of the election, it is evident that the vast majority of
employees in the professional group did not have an obligation to re-
port to the Employer’s facility on the day of the election, while the vast
majority of employees in the nonprofessional group did have such an
obligation. Since we cannot discern with any degree of certainty the
extent to which the difference in reporting obligations may have af-
fected voter turnout, however, we do not accord controlling weight to
this particular piece of evidence in assessing the impact of the weather
on the election. Nevertheless, we do believe that the employees’ obli-
gation to report to work merits consideration as one among several
factors in the analysis of the overall effect of the weather conditions on
voter participation.
votes of the nonparticipating eligible employees in group
A would have been determinative of the election results,
we conclude that the election among the professional
employees in group A must be set aside. In addition,
because, under the Board’s Sonotone procedure, if the
professional employees vote to be included in the same
unit with the nonprofessional voters, the votes of the pro-
fessional employees will be counted with the votes of the
nonprofessional employees to determine whether the
combined unit has voted for union representation, we
further conclude that the results of the election among
the nonprofessional employees in group B must be set
aside as well so that a new election can be conducted
utilizing the same eligibility date for both groups of vot-
ers.
ORDER
The Regional Director’s Supplemental Decision is re-
versed, the Certification of Representative is vacated, and
the case is remanded to the Regional Director for the
holding of a new election and for further action consis-
tent with this opinion.