D.R. NO. 82-15

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

COUNTY OF MONMOUTH,

Public Employer,

-and-	Docket No. RO-81-218

LOCAL 56, UFCW, AFL-CIO,

Petitioner,

MONMOUTH COUNCIL 9, NJCSA,

Intervenor.

Appearances:

For the Public Employer,

Meagher & Hrebek, Esqs.

(Robert J. Hrebek, Esq.)

For the Petitioner,

Hott, Goodman, Kropf, Margolis & Hernandez, Esqs.

(Timothy R. Hott, Esq.)

For the Intervenor

Lomurro & Eastman, Esqs.

(Donald Lomurro, Esq.)

DECISION

The United Food and Commercial Workers Union Local 56, AFL-
CIO ("Local 56") has filed post-election objections to two secret ballot elections conducted by the Public Employment Relations Commission (the "Commission") on July 27, 1981, in units comprised of (1) non-supervisory white collar employees of the county clerk of the County of Monmouth, excluding the judicial employees of the county clerk ("County Clerk non-judicial unit") and (2) non-supervisory while collar employees of the County of Monmouth ("County white collar unit"). These two elections were held simultaneously, together with elections for four other negotiations units for which no objections have been filed and for which certifications have issued.1/ The election in the County white collar unit and election in the County Clerk non-
judicial unit were held pursuant to an agreement for consent election dated July 10, 1981. Monmouth Council 9, NJCSA, participated in the County clerk non-judicial unit election.2/

The objections are the same as to each election and are as follows: (1) An election observer took notes during polling, left the polling place with her notes for an hour, and them resumed her observer role; (2) a representative of the employer called negotiations unit employees during polling and told the employees to vote against the Petitioner; (3) two Board of Health employees were given letters by their supervisors stating they should not be allowed to vote; and (4) the eligibility list provided by the County did not include all eligible voters: specifically, five employees were omitted from the list of eligible voters in the County white collar unit and one employee was omitted from the eligibility list for the County Clerk non-
judicial unit.

On August 4, 1981, Local 56 was advised by the undersigned that, in accordance with N.J.A.C.19:11-9.2(i) an investigation of the objections to the election would not be conducted unless it furnished sufficient evidence in the form of affidavits or other documentation to support a prima facie case. The Commission agent assigned to the case was advised by the attorney for Local 56 that it would rely on the evidence that existed in the Commission's files in support of objections (3) and (40.

On September 8, 1981, Local 56 withdrew objections (1) and (2) and requested the undersigned to consider the remaining two objections which concern the Board of Health employees and the allegedly incomplete eligibility lists.

Local 56 raised objections concerning two Board of Health employees, whose eligibility to vote was challenged by the Board of Health. The objection states:

2 employees of the Board of Health were given letters by their supervisor which stated that they should not be allowed to vote.

On the day of the election the Commission election agent was presented with a memorandum from the Health Officer of the Board of Health, challenging the eligibility of two voters who were on the eligibility list of voters supplied by the County. The memorandum was delivered by the challenged voters to the Commission election agent at the polling place (see attachment A). The Board of Health asserted that, as an autonomous agency, it was the employer of these two employees. The Commission election agent asserted the challenge to the ballots case by the Board of Health employees. All challenge ballots in the July 27 election were resolved by the parties to the election, who agreed that all the ballots were cast by eligible voters. All challenged ballots were then counted and revised tallies of ballots were issued in the elections in question herein (see Attachments B, C, D, and E).

N.J.S.A. 19:11-9.2(e) provides:

(e) An observer or the election agent may challenge the eligibility of any person to participate in the election. Such challenge must be asserted prior to the time that a person casts a ballot and shall be recorded in writing specifying the name of the challenged person, the name of the challenging party, and the reason for the challenge. All persons whose names do not appear on the eligibility list maintained by the commission election agent shall automatically be challenged by the election agent. A challenged voter shall be permitted to vote and the ballot shall be sealed in an appropriate challenge ballot envelope after the voter marks the ballot, which sealed envelope shall thereafter be dropped in the ballot box. At the conclusion of the balloting, the parties may be provided the opportunity to resolve the challenged ballots, subject to the approval of the election agent.

The Commission's policies with respect to the conduct of elections are similar to the practices and policies of the National Labor Relations Board.3/ The Board has determined that its elections should be held under "laboratory conditions." General Shoe Corporation, 77 NLRB 124, 21 LRRM 1337 (1948). The various types of objectionable conduct were extensively analyzed by the Commission in In re Passaic Valley Sewerage Commission, P.E.R.C. No. 81-51, 6 NJPER 504(¶11258 1980).4/ There is no evidence that any representative of the employer indicated that these employees should not be permitted to case ballots. A Board of Health officer asserted a challenge to voter eligibility through the Commission agent. The challenge was asserted as provided in Commission rules.5/ In fact, the employees did cast ballots and the employer subsequently agreed that these two employees were eligible voters and that their votes should be counted. No facts have been presented from which to infer that an atmosphere was created that rendered a free choice by the voters improbable. Accordingly, with regard to this objection, the undersigned finds that Local 56 has failed to furnish evidence that precisely and specifically shows that conduct has occurred which would warrant setting aside its election as a matter of law.

In the remaining objection, Local 56 claims that the lists of eligible voters provided by the County did not include all eligible voters.

In representation elections the public employer is required to file with the Director of Representation and with the participating employee organizations an election eligibility list of all voters together with their mailing addresses and job titles. N.J.S.A. 19:11-9.6. Representation elections conducted by the NLRB have the same requirement under the "Excelsior Rule." Excelsior Underwear Inc., 156 NLRB 1236, 61 LLRM 1217 (1966). (The Excelsior rule was upheld by the Supreme Court in N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 89 S. Ct. 1426, 22 L.Ed. 2nd 709 (1969). The inadvertent omission of a small number of employees from the eligibility list is not considered by the Board a sufficient basis for invalidating an election. Jax Transportation, 131 NLRB 122, 48 LRRM 1038 (1961). Insubstantial failure to comply with the Excelsior rule will not warrant setting aside the election unless the employer has been grossly negligent or has acted in bad faith.6/ Lobster House, 186 NLRB No. 27, 75 LRRM 1309 (1970). In determining whether Excelsior list omissions warrant setting aside of an election, the Board compares the number of omissions with the number of voters the list should have contained (the Excelsior list plus the omitted names) to determine if there has been substantial failure to comply with the Excelsior rule. Chromalloy American Corp., 245 NLRB No. 119, 102 LRRM 1405 (1979). Generally, it appears that if the percentage of names omitted compared to the total number of voters is 9% or more the Board will set aside the election. See: Sonfarrel, Inc., 188 NLRB No. 146, 76 LRRM 1497 (1971) (9% found to be substantial error); Chromalloy American Corp, supra at 1415 (10.667% substantial) and Pacific Gamble Robinson Co., 180 NLRB No. 84, 73 LRRM 1049 (11% substantial). The Board has found the percentage of omission in the following cases not to constitute substantial error: Kentfield Medical Hospital, 219 NLRB No. 32, 89 LRRM 1697 (1975) (7% error not substantial enough to warrant setting aside the election); Advance Industrial Security, Inc. 230 NLRB No. 14, 95 LRRM 1209 (1977) (6% NOT SUBSTANTIAL); West Coast Meat Packing Co., 195 NLRB No. 21, 79 LRRM 1199 (1972) (4% not substantial). In Telonic Instruments, 173 NLRB No. 87,69 LRRM 1398 (1968), the Board did not find a 3.6% omission to be substantial (4 names of 111 eligible) even though the union lost by only one vote.

In the County-wide unit five names were omitted from the lost of 207 eligible voters, which constitutes a 2.4% error rate. In the County Clerk non-judicial unit, one of 29 eligible voters was omitted which constitutes a 3.4% error rate. Therefore, based on the policy and criteria enunciated by the NLRB, which are adopted as reasonable and applicable to the circumstances herein, the undersigned concludes that the County substantially complied with the Excelsior rule and that the omissions are not substantial enough to warrant setting aside the election.

Inasmuch as Local 56 has failed to furnish sufficient evidence to support a prima facie case which would warrant setting aside the election as a matter of law, the undersigned dismisses the objections filed by Local 56. In accordance with the rules of the Commission, the undersigned shall issue the appropriate certifications of results, attached hereto and made a part hereof.

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

__________________________

Carl Kurtzman, Director

DATED: October 22, 1981

Trenton, New Jersey