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The decision of the Authority follows:
36 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
GREENVILLE, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER ON APPLICATION FOR REVIEW
August 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed by the Activity under section 2422.17(a) of the Authority's Rules and Regulations. A representation election was conducted by mail ballot. After the initial tally of ballots was issued indicating a tie vote, another ballot was discovered and opened by an agent of the Federal Labor Relations Authority's (FLRA) Regional Office without the parties present. Thereafter, the Regional Director issued a Revised Tally of Ballots that showed that, of the 19 valid votes counted, 10 were cast for the Petitioner (AFGE) and 9 were cast against exclusive recognition.
The Activity filed objections to the procedural conduct of the election with the Regional Director. The Activity contended that the Regional Director improperly validated the discovered ballot and improperly issued a revised tally of ballots that changed the results of the election. In her Decision and Order on Objections, the Acting Regional Director (ARD) concluded that the objections had no merit and, therefore, indicated her intent to issue a Certification of Representative, absent the filing of an application for review.
The Activity filed this application for review of the ARD's decision. AFGE did not file an opposition to the application for review. We grant the application for review because rulings made by the ARD in connection with this proceeding have resulted in prejudicial error. On review of the ARD's decision, we find that improper procedural conduct occurred of such a nature as to warrant setting aside the election. We shall order the Regional Director to revoke the Revised Tally of Ballots and to conduct a new election.
II. Background and Acting Regional Director's Decision
An election by mail ballot was conducted under the Regional Director's supervision, in accordance with the provisions of an Agreement for Consent or Directed Election (CEA) signed by the parties and approved by the Regional Director.
In accordance with the CEA, the parties met in the Authority's Atlanta Regional Office on March 16, 1990. The Authority Agent (Agent No. 1) who had previously handled this matter was not present. Another Agent (Agent No. 2), in the presence of the parties' representatives, removed the mail ballots from the mail ballot drawer in which they had been kept and counted them.
At the conclusion of the count, Agent No. 2 issued a Tally of Ballots (Tally) dated March 16 and served a copy of the Tally on each of the parties' representatives. The Tally showed that of the 18 valid votes counted, 9 were cast for AFGE and 9 were cast against exclusive recognition and that, accordingly, a majority of the valid votes counted had not been cast for AFGE.
On March 19, Agent No. 1 returned to the Regional Office. He discovered that a return envelope containing a ballot had been placed inadvertently in his mail slot inside the Office. The time and date stamped on the envelope indicated that it had been received in the Regional Office at 10:57 a.m. on March 14. The CEA provided that, in order to be counted, ballots must have been received by 1:00 p.m. on March 16.
On the same day, without the parties present, Agent No. 1 opened the ballot. The ballot had been cast for AFGE. The Agent then telephonically informed the parties' representatives about the discovery of the ballot, the date on which it had been received, the fact that the vote had been cast for AFGE, and that a revised tally of ballots would issue. Also on the same day, over the objection of the Activity, a Revised Tally of Ballots was issued and a copy of the Revised Tally was served on the parties' representatives by mail. The Revised Tally showed that of the 19 valid votes counted, 10 were cast for AFGE and 9 were cast against exclusive recognition. The Revised Tally accordingly showed that a majority of the valid votes counted had been cast for AFGE.
On March 23, the Activity timely filed with the Regional Director objections to the procedural conduct of the election. The Activity stated that:
The reason for the Agency's objections is that the Federal Labor Relations Authority (FLRA), without authority under its regulations and in violation of specific provisions of the regulations and of the Consent Election Agreement, improperly validated a ballot which directly affected the result of the election and improperly issued a "Revised Tally of Ballots" changing the recorded result of the count of ballots.
Acting Regional Director's Decision at 2.
The ARD treated the objection as presenting the following issues, arguments or objections: (1) because the ballot in question was placed in a "mail slot" as opposed to the "mail ballot drawer," the ballot was not securely stored and the validation of the ballot therefore violated the CEA; (2) because the FLRA could not certify to the continuous chain of custody of the ballot, the maintenance of the ballot's secrecy was not guaranteed as required by the CEA and the Authority's Regulations; (3) the Regional Director's unilateral determination to validate the ballot and issue a revised tally violated the CEA and the Authority's Regulations; (4) the Regional Director's unilateral decision to open the ballot, determine its validity and thereafter issue a revised tally of ballots violated the CEA and the Authority's Regulations; and (5) nothing in the CEA or the Authority's Regulations authorizes the Regional Director to rescind a tally of ballots issued in compliance with the CEA and thereafter issue a revised tally of ballots. Id. at 2-3.
The ARD found no merit in the Activity's objections. As to objections 1 and 2, the ARD noted that the mail slot is located in an area to which the public does not have access and that the CEA does not specify where the ballots will be stored. The ARD found that, therefore, the return envelope was securely stored and was continuously in the FLRA's custody, and that the Regional Office could thus certify to the continuous chain of custody of the ballot. The ARD also found that FLRA maintained the secrecy of the ballot to ensure that neither party would know the identity of the employee who cast the ballot in question. Id. at 4.
As to objection 3, the ARD noted that the Regional Director had the responsibility to conduct the election, had the authority to take whatever action was deemed necessary, and had delegated that authority to Agent No. 1. She found that the determination by Agent No. 1 to view the ballot in camera and to issue a revised tally of ballots was appropriate. Id. at 4-5. The ARD noted that the Notice of Election and the CEA provided that, in order to be counted, ballots must be received in the Regional Office by 1:00 p.m. on March 16, 1990, and that the ballot in question was received in the Regional Office at 10:57 a.m. on March 14. She found that Agent No. 1's action was thus consistent with the provisions of the CEA and the Authority's Regulations. Id. at 5.
Rejecting the Activity's objection 4 that no observers were present when Agent No. 1 opened the ballot in question, the ARD stated that observers could not be permitted to be present "because to allow this would compromise the secrecy of the ballot." Id. at 5. She noted section 2422.18(f) of the Authority's Regulations provides that "[a]ny party may be represented at the polling place(s) by observers of its own selection, subject to such limitation as the Regional Director may prescribe." The ARD concluded that "[t]herefore, the Region's counting the ballot without observers was appropriate under the Regulations and the CEA." Id.
As to the Activity's objection 5, that the ARD was without authority to rescind the first tally of ballots and issue a revised tally, the ARD again noted that the Regional Director had the responsibility to conduct the election and the authority to take whatever action she deemed necessary. The ARD found that the action taken was deemed necessary by the Regional Director in the circumstances of this case. The Regional Director took the action because to void the ballot in question, as urged by the Activity, would have unjustly penalized the employee who cast the ballot. Id. at 5-6.
III. The Activity's Application for Review
The Activity contends the following:
The compelling reasons which warrant the granting of the application for review are that the Acting Regional Director's Decision and Order incorporates rulings which have resulted in prejudicial error; and contains a decision on a substantial factual issue which is clearly erroneous and the error prejudicially affects the rights of the parties.
Application at 2.
A. The Alleged Erroneous Factual Finding
The ballot in question, stamped so as to indicate that it was received on March 14, 1990, was discovered by Agent No. 1 on March 19 in his mail slot. The ARD found that this mail slot is located in an area to which the public does not have access. The Activity contends that this finding is clearly erroneous and that this is a substantial factual finding because it formed the basis for the ARD's conclusions that the ballot was securely stored and was continuously in the custody of FLRA. Application at 3.
In support of its contention that the finding is clearly erroneous, the Activity argues that the area where the mail slot is located is in an area to which the public does have access. The Activity notes that the mail slot is one of a group of open boxes located on a table in a hallway inside the Regional Office, 8-10 feet from the public entrance to the office, and not within the direct line of sight of a person seated at the reception desk in the area. Id.
B. The Alleged Prejudicial Errors
The Activity also argues that certain of the ARD's "rulings" or conclusions as to objections 1 and 2 resulted in prejudicial error. The Activity contends that the ARD erred in concluding that because the CEA did not specify where the ballots would be stored, there was no requirement that the Regional Office establish or follow any particular procedure in that regard. The Activity states that the General Counsel's Representation Case Handling Manual provides that appropriate measures should be taken to ensure the proper handling and safeguarding of mail ballots and that election agreements should set forth the arrangements for impounding mail ballots. The Activity argues that the Regional Office had established the procedure of securing ballots in the "mail ballot drawer." The Activity concludes, therefore, that the ARD erred in her decision as to objections 1 and 2 and that her decision "fails to apply relevant Authority policy in its finding concerning the security and secrecy of the ballot." Id. at 4-5.
In objection 3, the Activity contends that the Regional Director exceeded her authority in deciding to open and count the ballot in question and to issue a revised tally of ballots. The Activity states that the ARD's decision did not address the issue presented by this objection. The Activity argues that if the ARD is correct in finding that the Regional Director has absolute authority to take any action deemed necessary, and therefore the action of her Agent was appropriate, this renders meaningless the portion of the Regulations that permits parties to file objections to the procedural conduct of an election. Id. at 6.
The Activity states that the parties had, pursuant to the CEA, completed a count of ballots and certified to the results, as reflected in the first tally of ballots. The Activity argues that the ARD was therefore in error in finding that the action of Agent No. 1 was consistent with the CEA and the Regulations. Id. The Activity notes that the only circumstances in which the Regulations allow the Regional Director to issue a revised tally of ballots are those in which ballots are challenged or objections are filed. Id. Finally, the Activity argues that these errors are prejudicial to the parties "because they deny the parties the right to assurance that the election will be conducted in strict accordance with the terms of the CEA." Id. at 7.
As to objection 4, the Activity alleges that it was clearly erroneous for the ARD to find that allowing observers at the opening and counting of the ballot in question would have compromised the secrecy of the ballot. The Activity argues that this ballot, which became determinative of the election results, was like a challenged ballot and that if such a ballot is opened and counted, the identity of the voter will be known to the observers. The Activity notes section 2421.15 of the Authority's Regulations recognizes such circumstances as an allowable exception to the secret ballot process. The Activity argues that there is nothing in the Authority's Regulations or in the parties' CEA that justified the decision to deny the parties the right to have observers present at the counting of the ballot.
Based on the errors it alleges were committed, the Activity argues that the election in this case was not conducted in accordance with Authority policy and with the parties' CEA.
IV. Analysis and Conclusions
We conclude that compelling reasons exist within the meaning of section 2422.17 of the Authority's Rules and Regulations for granting the application for review. We find, for the reasons stated below, that rulings made in connection with the proceeding have resulted in prejudicial error.
A. The Election Framework
Elections under the Statute are supervised or conducted by the Regional Director. 5 C.F.R. § 2422.7(e); 5 C.F.R. § 2422.18. The elections shall be by secret ballot. 5 C.F.R. § 2422.18(c). "Secret ballot" is defined as:
[T]he expression by ballot, voting machine or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed, except in that instance in which any determinative challenged ballot is opened.
5 C.F.R. § 2421.15. An agreement by the parties to an election, setting forth the details of the election and the related election procedures, is subject to the approval of the Regional Director. 5 C.F.R. § 2422.7. The Regulations provide that:
Any party may be represented at the polling place(s) by observers of its own selection, subject to such limitations as the Regional Director may prescribe.
5 C.F.R. § 2422.18(f). The parties' requests for named observers are subject to the approval of the Regional Director. 5 C.F.R. § 2422.18(g).
B. The Opening of the Ballot
We find that the decision to open the ballot discovered after the initial tally of ballots was issued, without the presence of the parties' representatives, resulted in prejudicial error. In addition to protecting their own interests, observers at elections assist in ensuring the integrity of the election process. The general rules as to who could serve as an observer in this case were stated in the parties' CEA, paragraph 4:
OBSERVERS - Each party will be allowed to station an equal number of authorized observers, selected from among the nonsupervisory employees of the Federal Government. These observers will assist in the conduct of the election, will challenge, for good cause, the eligibility of voters, and will verify the tally. Activity or Agency observers will not be eligible voters or have an official connection with any of the labor organizations involved. Labor organizations will designate in writing to the Activity or Agency their official observers in advance of the election to allow for any necessary adjustment of work schedules.
Pursuant to the parties' CEA, a mail ballot election was conducted by the Regional Director. In the presence of the parties' observers and on the agreed-upon date (March 16, 1990), the opening and counting of the mail ballots was conducted by an Agent of the Regional Director (Agent No. 2). A tally of ballots was prepared by Agent No. 2 showing that AFGE did not receive a majority of the valid votes counted. There were no challenged ballots. The tally was signed not only by Agent No. 2, but also by the parties' observers, who stated by signing that:
We acted as authorized observers in the counting of the ballots recorded above. We certify that the counting was fairly and accurately done, that the secrecy of the ballots was maintained, and that the results were as recorded above. We received a copy of this tally.
Ordinarily, absent the filing of objections to the procedures as of March 16, the Regional Director would have issued a certification of the results of the election indicating that AFGE had not prevailed. However, on the next workday, March 19, Agent No. 1 returned to the Regional Office and discovered the ballot now in question. Agent No. 1 then took the action set forth above, which is the basis for the objections.
It is our view that, upon discovery of the ballot in question, the proper procedure would have been for Agent No. 1 (or such other agent as the Regional Director may have selected) to notify the parties about the discovered ballot and give them the opportunity to have their authorized observers who had been present on March 16, or other authorized representatives, examine the ballot envelope. The observers would thus have had the opportunity to: (1) agree that the ballot was the timely and valid ballot of an eligible voter that should be opened and counted; (2) agree that the ballot should not be opened and counted; or (3) exercise their right to challenge for good cause whether the ballot should be opened and counted. 5 C.F.R. § 2422.19. If challenged, the ballot would have been impounded. Id. The parties would then have had the benefit of an investigation and a resolution of the challenge(s) by the Regional Director. 5 C.F.R. § 2422.21(c) and (d). The Regional Director would have decided whether the ballot should or should not be opened and counted. If the Regional Director determined that the ballot should be counted, the parties would have been given the opportunity to observe the count.
We find that the procedural action taken by Agent No. 1, and upheld by the ARD's Decision, was improper and prejudiced the rights of the parties. In accordance with their election agreement, the parties were entitled to have authorized observers present throughout the opening and counting of all ballots, including the ballot in question, in order to protect their interests and to help ensure the integrity of the entire election process. We believe that the actions taken in the opening and counting of the newly discovered ballot improperly deprived the parties of their right to have observers present and, as such, cast doubt on the integrity of the election process. Accordingly, we will set the election aside and we will direct that a new election be conducted.
Based on the foregoing, we reverse the ARD's Decision and Order which found no merit in the Activity's objections. In view of our determinations, we need not address the Activity's contention regarding the ARD's alleged erroneous factual finding as to the security of the mail slot.
V. Order and Direction of New Election
The application for review is granted and the case is remanded to the Regional Director for appropriate action. The Regional Director shall revoke the Revised Tally of Ballots. The election is set aside.
A new election by secret ballot shall be conducted among the employees in the bargaining unit described in the parties' Agreement for Consent or Directed Election at the earliest possible date. Eligible to vote are those employees in the bargaining unit who were employed during the payroll period immediately preceding the date of this decision, including employees who did not work during that period because they were out ill, or on vacation, or on furlough, including those in the military service, who appear in person at the polls. Ineligible to vote are employees who have quit or were discharged for cause since the designated payroll period and who have not been rehired or reinstated before the election date. Those eligible shall vote on whether or not they desire to be represented for the purpose of exclusive recognition by the American Federation of Government Employees, AFL-CIO.
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