Terrace Gardens Plaza

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 571 (N.L.R.B. 1993)

571
313 NLRB No. 68
TERRACE GARDENS PLAZA
1 Sec. 103.20 of the Board’s Rules and Regulations provides:
(a) Employers shall post copies of the Board’s official Notice
of Election in conspicuous places at least 3 full working days
prior to 12:01 a.m. of the day of the election. In elections in-
volving mail ballots, the election shall be deemed to have com-
menced the day the ballots are deposited by the Regional Office
in the mail. In all cases, the notices shall remain posted until
the end of the election.
(b) The term ‘‘working day’’ shall mean an entire 24-hour pe-
riod excluding Saturdays, Sundays, and holidays.
(c) A party shall be estopped from objecting to nonposting of
notices if it is responsible for the nonposting. An employer shall
be conclusively deemed to have received copies of the election
notice for posting unless it notifies the Regional Office at least
5 working days prior to the commencement of the election that
it has not received copies of the election notice.
(d) Failure to post the election notice as required herein shall
be grounds for setting aside the election whenever proper and
timely objections are filed under provisions of section 102.69(a).
2 On February 3, 1993, the Employer filed a request for review of
the Regional Director’s Decision and Direction of Election involving
the issue of whether the Regional Director erred in not finding a
contract bar. The request for review was denied on February 25,
1993.
Terrace Gardens Plaza, Inc. and Local 32B-32J,
Service Employees International Union, Peti-
tioner. Case 29–RC–7996
November 26, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The Employer’s request for review of the Regional
Director’s Supplemental Decision on Objections and
Certification of Representative is granted with respect
to the Employer’s Objection 2 as it raises a substantial
issue whether the Employer’s failure to timely receive
and post the notices of election in a mail ballot elec-
tion, required by Section 103.20 of the Board’s Rules
and Regulations, warrants setting aside the election.1
The Regional Director overruled this objection on the
ground that the notices of election had been mailed di-
rectly to eligible voters, thereby affording all voters the
opportunity to read the notice and, therefore, the Em-
ployer’s failure to timely receive and post such notices
for the required 3 days is insufficient to require a new
election. Having carefully considered the matter, we
find, contrary to the Regional Director, that the Em-
ployer’s failure to timely receive and post the notices
is a violation of the mandatory requirements of the no-
tice-posting rule which warrants setting aside the elec-
tion.
The undisputed facts show that the Employer is en-
gaged in the ownership and management of a coopera-
tive apartment complex. On January 12, 1993, the Re-
gional Director issued a Decision and Direction of
Election in a unit of approximately 15 building service
employees. Thereafter, Regional personnel made a se-
ries of phone calls to the Employer’s counsel between
January 19 and 27, 1993, seeking information nec-
essary to conduct a manual election. Counsel, however,
was unavailable and the calls were never returned. By
letter dated January 28, 1993, the Employer and the
Petitioner were advised that, due to the Employer’s
failure to cooperate in furnishing information necessary
to arrange a manual election, the Regional Director
had determined to conduct a mail ballot election with
the ballots to be dispatched to the eligible voters on
February 4, 1993, and the deadline for receipt of bal-
lots set for February 24, 1993. The parties were further
advised that copies of the notice of election would be
forwarded to all parties and their representatives short-
ly. This correspondence was received by the Employ-
er’s managing agent on February 1, 1993, and by the
Employer’s counsel on February 2, 1993. The Employ-
er’s counsel responded by letter dated February 2,
1993, in which he claimed the Region had not returned
his calls, disputed his failure to provide all requested
information, and urged that the election be postponed
until after ruling on the Employer’s request for re-
view,2 and that it be conducted at the workplace.
The notice of election was not received by the Em-
ployer until February 4, 1993, the same day as the bal-
lots were mailed. By letter dated February 4, 1993,
Employer’s counsel protested conducting the election
without the required 3-day posting, and urged that the
election be postponed. The Regional Director re-
sponded both orally and by letter dated February 5,
1993, denying the request for a postponement, outlin-
ing the circumstances which had led the Regional Di-
rector to determine to conduct a mail ballot election,
and noting that although the Employer may not have
received the notice of election until the day the ballots
were mailed, eligible employees were mailed copies of
the notice with their ballots so that they would ‘‘be
properly apprised of their rights and the details of the
election.’’
The mail ballots were opened and counted on Feb-
ruary 26, 1993. The corrected tally of ballots showed
nine votes for the Petitioner, zero against, two chal-
lenged ballots, and six void ballots (five due to late re-
ceipt). The Employer timely filed six objections. In its
Objection 2, the Employer argued that the election
should not have been held without the requisite 3-day
period for the posting of the notice of election. The
Regional Director overruled this objection for the rea-
sons set forth in his letter of February 5, 1993, as dis-
cussed above.
Section 103.20 was promulgated and implemented in
an effort to make clear to all parties their responsibil-
ities and obligations vis-a-vis notice-posting and to
eliminate time-consuming case-by-case analysis. Thus,
in Section 103.20(a), the Rule specifically provides
that the Board’s official notice of election must be
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See NLRB Casehandling Manual (Representation Proceedings),
11336.3.
4 Contrary to the dissent, we also find that the Employer is not es-
topped by Sec. 102.30(c) from objecting to the nonposting. Although
that section provides that an employer is conclusively deemed to
have received the notice of election if it does not notify the Regional
Office at least 5 working days prior to the election that it has not
received copies of the notice, that section is inapplicable here as the
Employer was not informed by the Region of the date set for the
election until 2 or 3 days before the actual election date. There is
nothing in the Rule to support the dissent’s finding that by not rais-
ing the issue on February 2 or 3, the Employer somehow ‘‘failed
to meet its own obligation under Section 103.20,’’ thereby preclud-
ing it from objecting to the election on the basis of the nonposting.
Moreover, notification by the Employer on either of those days
would have been untimely under the Rule. Here, the Employer was
never given an opportunity to timely advise the Regional Office that
it did not receive the notices. Cf. Sugar Food, 298 NLRB 628
(1990).
5 In view of our decision here it is unnecessary to reach the other
issues raised by the request for review.
posted for 3 working days prior to the election. This
section applies to mail ballot elections as well as to
manual elections as the section contains a specific ref-
erence to mail ballot elections, i.e., ‘‘[i]n elections in-
volving mail ballots, the election shall be deemed to
have commenced the day the ballots are deposited by
the Regional Office in the mail.’’
Moreover, the Rule’s provisions are mandatory in
nature, stating that ‘‘failure to post the election notice
. . . shall be grounds for setting aside the election.’’
They do not provide for any alternative means of com-
pliance, contrary to the opinion of our dissenting col-
league. Rather, as noted above, notice posting is spe-
cifically required in mail ballot elections under Section
103.20. Thus, while notices may be directly mailed to
eligible voters in a mail ballot election, as they were
here, that practice does not eliminate a Regional Of-
fice’s responsibility to timely furnish employers with
election notices or the employer’s obligation to timely
post such notices.
Further, the Rule’s provisions do not allow for any
analysis as to the actual impact of noncompliance on
a particular election. Under the Board’s decision in
Smith’s Food & Drug, 295 NLRB 983 fn. 1 (1989),
the Board will not inquire into the number of employ-
ees who actually voted, as the lack of impact on the
election resulting from nonposting does not excuse
compliance with the explicit provisions of the rule.
Therefore, our dissenting colleague’s argument that the
election results should be certified because all eligible
voters received and cast ballots is inapposite.
We also note that the notice-posting requirement in
a mail ballot election serves an important purpose in
that if for any reason an employee does not receive the
mailing, the posted notice will inform the employee of
the election and instruct that person to contact the Re-
gion to procure a ballot.3
Finally, we find that a contrary result, as reached in
our dissenting colleague’s case-by-case approach,
would require the Board to engage in precisely the
type of inquiry Section 103.20 was designed to obvi-
ate, i.e., unnecessary and time-consuming litigation
over compliance with the notice-posting requirement.
Consequently, as the Rule was not complied with here,
a new election must be conducted.4
Accordingly, the Employer’s Objection 2 is sus-
tained, and the case is remanded to the Regional Di-
rector for the purpose of scheduling a second election,
including the posting of notices as required by Section
103.20 of the Board’s Rules and Regulations.5
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I would not set aside the
election under the circumstances presented here. I
agree with the Regional Director that the Employer’s
Objection 2 lacks merit. The express purpose of the
notice-posting requirement set forth in Section 103.20
of the Board’s Rules and Regulation was to protect
employees by ensuring that they would be informed of
their rights, and to decrease litigation on matters per-
taining to an employer’s obligation to post the notice
of election. That purpose is best effectuated here by al-
lowing the results of the election to stand. Moreover,
at the time the rule was promulgated, the Board ac-
knowledged in the accompanying explanatory state-
ment that some issues would require case-by-case de-
terminations. Thus, I do not agree with my colleagues’
view that in every case the failure to post the notice
for a full 3 days before the election is per se grounds
for setting aside the election, and I find in the unusual
circumstances of this case that employees’ rights in the
election were fully safeguarded.
The majority concedes that, following the issuance
of the Decision and Direction of Election, the staff of
the Regional Office attempted repeatedly but in vain to
obtain from the Employer’s counsel the information
necessary to conduct a manual election. Counsel did
not return the Region’s telephone calls. Based on this
lack of cooperation, the Regional Director determined
that the election would be conducted by mail and ad-
vised the parties by letter dated January 28, 1993, that
the ballots would be mailed on February 4.
Section 103.20(c) of the Board’s Rules and Regula-
tions requires employers to inform the Regional Office
if they do not receive the election notice in time to
comply with the posting requirement. Employers are
routinely informed of the notice-posting requirements,
including their obligations in that regard, at the time
petitions are served on them. While the timing of
events here precluded the Employer from contacting
the Regional Office 5 days in advance as the rule re-
quires, I nevertheless find that the Employer had an
obligation to raise this issue promptly when it received
the Regional Director’s letter scheduling the election
573TERRACE GARDENS PLAZA
1 I note that the Employer has not challenged the Regional Direc-
tor’s specific finding that all eligible employees did in fact receive
notices and ballots.
2 I find Smith’s Food & Drug, 295 NLRB 983 (1989), distinguish-
able from this case. In Smith’s the Board set aside a manual election,
based on an objection by the petitioner, where the employer failed
to post the election notice for the required 3-day period and did not
notify the Regional Office of its late receipt of the notice.
but did not have the election notices in time for a 3-
day posting. The Employer did not raise this issue ei-
ther in its February 2 letter to the Regional Director
or in its February 3 request for review to the Board.
Indeed, the Employer expressed no objection regarding
this matter until February 4, the date the ballots were
mailed to eligible voters. Having failed to meet its own
obligation under Section 103.20, the Employer should
not be permitted to rely on the posting requirement in
its effort to overturn the election.
Furthermore, on the facts of this case, it is clear that
the policies underlying the posting requirement were
satisfied. The employees were fully informed of their
rights and the Board’s procedures with respect to the
election, because the Regional Office included a copy
of the election notice with each mail ballot. All of the
eligible voters received and cast ballots in the election.
Of the six ballots deemed void, five were invalidated
due to late receipt and the Employer’s refusal to waive
the deadline. The Employer, as the objecting party,
does not assert and has presented no evidence that any
employee failed to receive notice of the election or
was unable to vote within the 20-day voting period as
a result of the late posting of the election notice.1
Based on the circumstances of this case, including the
Employer’s failure to cooperate in arranging the elec-
tion, its failure to object concerning the notice-posting
issue in a timely manner, and the absence of any indi-
cation that the election was affected in any way by the
late posting, I would deny the Employer’s request for
review.2