D.R. NO. 83-37

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

JERSEY CITY MEDICAL CENTER,

Public Employer,

-and-	Docket No. RO-83-30

INTERNATIONAL SERVICE WORKERS'

OF AMERICA,

Petitioner,

-and-

LOCAL 1199-J, NATIONAL UNION OF

HOSPITAL AND HEALTH CARE EMPLOYEES,

RWDSU, AFL-CIO,

Intervenor.

Appearances:

For the Petitioner

Schneider, Cohen, Solomon & DiMarzio, attorneys

(J. Sheldon Cohen of counsel)

For the Intervenor

Greenberg, Margolis, Zeigler & Schwartz, attorneys

(Mark S. Tabenkin of counsel)

DECISION

Pursuant to a Decision and Direction of Election issued October 29, 1982,1/ a representation election was conducted on December 3, 1982, by the Public Employment Relations Commission ("Commission") among 86 employees in a unit consisting of "all food service workers in the Food Service Department of the Jersey City Medical Center ("Center") but excluding all other employees including managerial executives, supervisory employees, and police within the meaning of the Act." Employees were provided an opportunity to choose as majority representative either the petitioning employee organization, [International Service Workers of America ("ISWA")] or the intervening incumbent certified representative, [District 1199-J, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO ("District 1199J")], or to choose no representation. The tally of ballots reveals that a majority of ballots was cast for ISWA.2/

On December 8, 1982, District 1199-J filed post-election objections pursuant to N.J.A.C. 19:11-9.2(h), alleging that both the Center and ISWA and/or its adherents had engaged in certain misconduct affecting the results of the election. Specifically, District 1199-J objects to the late transmittal of the voting eligibility list by the Center and the mailing of a campaign flyer by certain employee(s) that attached an altered Commission Notice of Election. District 1199-J requests that the above election be set aside and that it be rerun.

Pursuant to a Notice of Hearing dated February 15, 1983, hearings were held March 4 and 11, 1983, before Hearing Officer Joan Kane Josephson, at which time all parties were given the opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. The Center declined to participate. On May 5, 1983, the Hearing Officer issued her Report and Recommendations. She recommended that the election be set aside and a new election be directed on the basis of the late receipt of the employee eligibility list and the mailing of altered Commission election notices by the employee-adherents of ISWA. ISWA filed exceptions to the Hearing Officer's recommendations. District 1199-J did not file a reply.

The Hearing Officer found as follows:

N.J.A.C. 19:11-9.6(a) requires that the public employer provide an eligibility list consisting of voters' names, addresses, and job titles to the Commission and to participating employee organizations to be received no later than 10 days prior to the election. Under letter dated November 22, 1982, the Center simultaneously mailed to the Commission, ISWA and District 1199-J the election eligibility list. The envelope containing the list sent to District 1199-J's counsel was postmarked November 23, 1982, 1 p.m. and was received November 24, 1982, the ninth calendar day prior to the election scheduled December 3, 1982.

Further, one or two days prior to the election, an unknown number of eligible voters received a campaign flyer urging food service employees to "vote for ISWA." The flyer identified its distributor as the "Concerned Food Service Workers of the Jersey City Medical Center." ("Concerned Food Service Workers"). Attached to the flyer was an exact reproduction of a Commission Notice of Election. The sample ballot appearing on the Notice of Election was altered by the placement, in ink, of an "X" in the box designated for ISWA.3/ This material arrived in an envelope with a handwritten address without return address, bearing a 20 cent postage stamp postmarked November 30, 1982, North Jersey.

The record revealed that this campaign material was composed, duplicated and sent by a cook at the Center, Stephen Chamona (after being typed by his friends), on behalf of "all the employees who wanted a change" and were "supporting him" and "dissatisfied with 1199."4/

Based upon the above, the Hearing Officer concluded, first, that there was not substantial compliance with the Commission's rule requiring receipt of the eligibility list ten days prior to the election, citing In re County of Monmouth, P.E.R.C. No. 82-
80, 8 NJPER 134 (¶13058 1982) ("Monmouth"); Excelsior Underwear Inc., 156 NLRB 1236, 61 LRRM 1217 (1966); Program Aides Co., Inc., 163 NLRB 54, 65 LRRM 1244 (1976) ("Program Aides"(); Wedgewood Industries Inc., 243 NLRB No. 161, 101 LRRM 1597 (1979) ("Wedgewood"); NLRB v. All-Weather Architectural Aluminum, 111 LRRM 2981 (9th Cir. 1982) ("All-Weather"), and, second, that on the facts of the instant case, the alteration and distribution of such official Notice by an employee "representing 'all' the employees who support the successful party" requires the setting aside of an election. N.J.A.C. 19:11-9.1(b);5/ Englewood Bd. of Ed., D.R. No. 82-47, 8 NJPER 251 (¶13111 1982) req. for review den. P.E.R.C. No. 82-93, 8 NJPER 275 (¶13120 1982) ("Englewood"); and Allied Electric Products, Inc., 109 NLRB 1270, 34 LRRM 1538 (1954).

ISWA's exceptions to the Hearing Officer's report are that: (1) the report fails to apply the burden of proof requirement under N.J.A.C. 19:11-9.2(h) and that the objecting party has failed to meet that burden; (2) the findings are not sufficient to support the conclusions; and (3) the Hearing Officer misapplied the appropriate and binding NLRB precedents. Additionally, ISWA challenges the Hearing Officer's findings as to the credibility of certain witnesses and inferences drawn from several witnesses' testimony.

The undersigned shall first consider District 1199-J's objection concerning the late submission oft he employee eligibility list. As noted above, the Hearing Officer recommended that the "substantial compliance" standard be utilized in reviewing objections pursuant to the eligibility list rule. District 1199-J argued that the eligibility list rule of N.J.A.C. 19:11-9.6 required strict compliance and that failure to comply was automatic grounds for setting aside the election.

In Monmouth, supra, the Commission determined that it would take guidance from the NLRB's application of its Excelsior rule, supra, after which the Commission eligibility list rule is patterned.6/ Two problem areas unfold in Excelsior cases. One relates to the completeness of a list; the second, and that involved herein, relates to the timeliness of its transmittal. The objection in Monmouth, supra, related to an incomplete list. The Commission, in applying Excelsior principles to objections involving this first problem area, adopted the Board approach which rejects the argument that absolute compliance with the rule, as opposed to substantial compliance, is essential.

Since Excelsior, the National Labor Relations Board ("Board" or "NLRB") has considered numerous cases raising the instant concern -- that of timeliness of transmittal -- wherein the employer either failed to submit the eligibility list or was late in its submission. In Program Aides, supra, the NLRB stated:

... we find nothing in our decision in Excelsior which would require the rule stated therein to be mechanically applied. The principal underlying rationale of Excelsior, requiring the employer to disclose the names and addresses of eligible voters to the Union, is to provide the Union with an opportunity to inform the employees of its position so that they, the employees, will be able to vote intelligently.

In considering whether an employer has substantially complied with the requirements of the Excelsior rule, in the face of an untimely submission of the required employee eligibility list, the Board has considered a number of factors; including: (1) the number of days which the list was overdue; (2) the number of days which the Union has had the list prior to the election; and (3) the number of employees eligible to vote in the election. Program Aides, supra; Pole-Lite Industries, supra; cf. Rockwell International, 235 NLRB No. 160, 98 LRRM 1077 (1978). Consideration has also been given to the fact that an objecting party may be an incumbent organization with an in-plant presence. Kent Corp., 228 NLRB No. 12, 96 LRRM 1606 (1977) (NLRB adoption of A.L.J. decision). Further, the Board considers whether one organization's tardy receipt of the list could have materially affected the results of the election. Brunswick Corp., 206 NLRB No. 64, 84 LRRM 1338 (1973).7/

The undersigned agrees with the Board and with the Hearing Officer herein that violations of the eligibility list requirement should not be judged by a mechanical compliance standard. To this end, the undersigned adopts the Board's reasoning and determines that the substantial compliance standard of Monmouth, supra, governing the completeness of a list, shall also extend to matters concerning the timeliness of the list.

In the instant matter, District 1199-J argues that the list was not only received one day late, nine calendar days prior to the election, but late in the afternoon on the day before Thanksgiving and a four-day holiday weekend. District 1199-J contends it therefore had use of the eligibility list for only four business days prior to the election.

In fact, District 1199-J received the list nine days before the election. It was capable of using U.S. mails as well as in-
person canvassing or telephone electioneering techniques utilizing the list. The Board requires that the eligibility list contain each employee's home address in order to afford the competing unions an opportunity to communicate with eligible voters away from the work environment and the employer's watchful eyes. District 1199-J had a four day holiday weekend as well as four additional business days to achieve this goal.8/ Therefore, the undersigned rejects District 1199-J's claim that the late receipt of the list, which limited the campaign to four business days, is sufficient to support a meritorious objection.9/

Thus, absent any supportable suggestion of bad faith or gross negligence by the employer, or the existence of any other impediment to its campaign capabilities, the undersigned believes that the Center substantially complied with the eligibility list rule requirement and that District 1199-J had sufficient opportunity to communicate with eligible voters.

Accordingly, the undersigned dismisses the post-election objection based on the untimely submission of the employee eligibility list.

The undersigned next considers the objection alleging that sample ballots marked with an "X" for ISWA were distributed in violation of N.J.A.C. 19:11-9.1(b).

The undersigned has previously applied the Commission rule concerning the improper reproduction and alteration of the Commission's official ballot. In re Englewood Bd. of Ed., D.R. No. 82-47, 8 NJPER 251 (¶13111 1982), req. for rev. den. P.E.R.C. No. 82-98, 8 NJPER 275 (¶13120 1982) (improper reproduction of Notice of Election by virtue of altered sample ballot attributed to successful party). In Englewood, it was noted that N.J.A.C. 19:11-9.1(b) was patterned after the rule enunciated by the Board in Allied Electric, supra. In Allied Electric, the Board said:

... The Board is necessarily concerned with the protection of its procedures designed to provide fair elections. The Board particularly looks with disfavor upon any attempt to misuse its processes to secure partisan advantage, and especially does it believe that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that this Government Agency endorses a particular choice.

*	*	*

... it must, in order to preserve an atmosphere of impartiality, impose certain limitations on methods used in campaigning. The reproduction of a document that purports to be a copy of the Board's official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears this Agency's approval . . . we believe it is unnecessary to permit unlimited freedom to partisans in election cases to reproduce official Board documents for campaign propaganda purposes . . . Upon consideration, the Board has decided that in the future it will not permit the reproduction of any document purporting to be a copy of the Board's official ballot, other than one completely unaltered in form and content and clearly marked sample on its face, and upon objection validly filed will set aside the results of any election in which the successful party has violated this rule. (citations omitted)

In Englewood, the undersigned said:

The concern of the Board for the integrity of its processes is equally shared by the undersigned in regard to the Commission's election procedures. Further, we look to the Board's policies for guidance, Lullo v. IAFF, Local 1066, 55 N.J. 409 (1970), as it affords consistency and predictability, particularly in the area of election misconduct. The undersigned can discern no valid distinguishing reason why the Commission should deviate from th rule set forth in Allied Electric, supra, which is designed to protect the integrity of the election process. (citations omitted).

In applying Allied Electric, the Board in each case determines whether the reproduced board document or facsimile has been defaced or altered in such a way to suggest either directly or indirectly to the voters that the Agency endorses a particular choice in the election and whether the successful party or its agents are responsible for violating the rule. Vernon Convalescent Center Co., 194 NLRB n.2, 78 LRRM 1673, 1674 (1971); and Hughes Tool Co., 119 NLRB 739, 41 LRRM 1169 (1957). An election will not be set aside unless it is shown that the alterations were the work of the successful party or its agents. Thus, in Bush Hog, Inc. v. NLRB, 420 F.2d 1266, 73 LRRM 2066 (5th Cir. 1967), the Circuit Court, enforcing a Board bargaining order, held:

But unlike Allied, there was no showing in the instant case that the union, the successful party, was responsible for the alterations in the Board's leaflets. We think it clear that conduct not attributable to the opposing party cannot be relied on to set aside an election. The only exception to this general principle, not applicable here, is where coercive and disruptive conduct or other action is so aggravated that a free expression of choice of representative is impossible (citations omitted). Any other rule would invite the third parties or one of the protagonists who doubted the election outcome to anonymously create incidents and then attempt to use them to set aside the election. 73 LRRM at 2068.

Also, in NLRB v. Fuelgas Co., Inc., 674 F.2d 529, 109 LRRM 3242 (6th Cir., 1982) ("Fuelgas") the Court of Appeals affirmed a Board decision not to set aside an election where the losing employer alleged that the successful union's election observer defaced the sample ballot posted in the employees' room. In so doing, the Court said:

First, even if we assume contrary to the Regional Director's investigative findings, that the Union's observer did deface the sample ballot, it is not at all clear that Fuelgas would have grounds for relief absent evidence that the Union had authorized or condoned the misconduct. See NLRB v. Morgan Health Care Center, 618 F.2d 127, 129, 103 LRRM 2800 (1st Cir. 1980). Second, and more important, is the fact that irrespective of the authorship of the marks on the sample ballot, Fuelgas has offered no evidence whatsoever that the defacement affected the fairness of the election.... To hold, as Fuelgas appears to suggest that a single incident involving an anonymous mark penciled on a sample ballot automatically indicates an unfair election would stretch the rule of Allied Electric Products, [supra], and its progeny beyond the limits of reason and common sense. 109 LRRM at 3244.10/

In the instant matter, an unknown number of employees received in the mail an exact replica of the Commission's official sample ballot marked with an "X" in the "ISWA" box. There was no identification of the source other than a separate piece of attached campaign literature from "Concerned Food Service Workers at the Jersey City Medical Center."11/

On these facts, the undersigned finds that the threshold condition for activation of the Commission and Allied Electric rules is present. The ballot is an exact replica of the Commission's official sample ballot, and it conveys the impermissible impression that the Commission endorses ISWA, the successful party in the election.

The record, however, does not support a finding as to the second requirement of Allied Electric, that the successful party was responsible for the violation of the rule. There is no evidence that Chamona was an ISWA agent or that ISWA supported, encouraged, or had knowledge of Chamona's mailing. Neither is there evidence to support a finding that an amorphous entity designated as the "Concerned Food Service Workers" is ISWA's "agent" or "alter ego," thereby placing responsibility for violation of the rule on ISWA.12/

In sum, District 1199-J had the responsibility in this objection to show that the altered sample ballot circulated among employees was attributable to ISWA. This has not been demonstrated notwithstanding District 1199-J's full opportunity to cross-examine Chamona and ISWA officials and a full opportunity to present witnesses under direct examination.13/ In re Passaic Valley Sewerage Commission, P.E.R.C. No. 81-51, 6 NJPER 504 (¶11258 1980).

Accordingly, for the above reasons, the undersigned dismisses the objections in their entirety. In accordance with the rules of the Commission the undersigned issues the appropriate certification of representative (attached hereto) to ISWA.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	June 30, 1983

Trenton, New Jersey