Pullman School District, Decision 6803 (PECB, 1999)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:	CASE 14557-E-99-2421 DECISION 6803–PECB ORDER DISMISSING ELECTION OBJECTIONS
WASHINGTON EDUCATION ASSOCIATION
Involving certain employees of:
PULLMAN SCHOOL DISTRICT

Roy Wesley, Labor Consultant, appeared for Pullman School District.

Warren Henderson, Field Representative, appeared for the Washington Education Association.

This case comes before the Commission on an objection to election filed by Pullman School District. We dismiss the objections.

BACKGROUND

On April 30, 1999, the Washington Education Association (union) filed a petition for investigation of question concerning representation seeking to represent instructional assistants of the Pullman School District (employer).

An investigation conference took place on May 27, 1999, by telephone conference call. The parties agreed that ballots would be mailed on June 1, 1999, and that a posting would be made about the same date, which was approximately 10 days before the end of classes. A Statement of Results of Investigation Conference was issued May 27, 1999, stating that mail ballots would be mailed June 2, 1999, and counted at 3:00 p.m. on June 16, 1999.At that time, the parties disagreed about the eligibility of eight employees.

Representation Coordinator Sally Iverson was off work, due to medical reasons, from June 1 through June 4th.On June 7th, she notified the parties of her absence and rescheduled the election. The election was conducted by mail ballot under WAC 391-25-470.Ballots and individual notices were mailed to the voters on June 8, 1999, and notices of the election were mailed to the employer for posting on the same day.

When the ballots were opened, on June 22, 1999, the results were as follows:

APPROXIMATE NUMBER OF ELIGIBLE VOTERS …….................................46

VOID BALLOTS........................................................................................................1

VOTES CAST FOR Washington Education Association………………………….11

VOTES CAST FOR NO REPRESENTATION........................................................4

VALID BALLOTS COUNTED ..............................................................................15

CHALLENGED BALLOTS CAST .........................................................................0

VALID BALLOTS COUNTED PLUS CHALLENGED BALLOTS.....................           15

NUMBER OF VALID BALLOTS NEEDED TO DETERMINE ELECTION……          8

The tally of ballots issued on June 22, 1999, indicated that the challenged ballots did not affect the outcome of the election, so that the results of the election appeared to be conclusive, favoring the union.

On June 30, 1999, the employer filed objections under WAC 391-25-590, and requested the election results be set aside.

POSITIONS OF THE PARTIES

The employer argues that the small number of returned ballots indicate that eligible voters lacked knowledge of the election, its purpose, and the consequences of voting “yes”, “no”, or not voting. The employer claims that the sample ballots and instructions were not received until June 10th or 11th, that June 11th was the last day of school, and that the delay contributed to a small number of ballots. Contending that some voters left their homes for vacation about the same time, and some voters may not have understood that such elections are determined by those voting, the employer requests the election be declared invalid, and a new mail ballot election conducted with an adequate posting period when fall classes begin.

The union argues that the instructional assistants were officially notified of a potential bargaining unit election well in advance of the close of school and the election, and that the Commission notified the employer on May 4, 1999, that the union had submitted a question concerning representation. The union points out the ballots sent by the Commission were accompanied by a notice indicating the purpose of the election. The union contends that ballots were sent to home addresses of eligible employees, so lack of prior notice had no impact on the employees’ opportunity to vote. The union claims that the notice clearly showed the decision to vote was personal and independent, and that the lack of a second posting did not interfere with exercise of voters' rights to vote. Arguing that low ballot return is not a valid reason for overturning an election, the union asks the Commission to deny the objections.

DISCUSSION

This case is governed by Chapter 41.56 RCW, which gives the Commission the authority, in RCW 41.56.090, to promulgate rules as necessary to administer the chapter in conformity with the intent and purpose of the chapter and consistent with the best standards of labor-management relations. Inherent in the election process as set forth in RCW 41.56.070, is the need for the Commission to exercise its authority without undue delay.

The rules on mail ballot elections and objections to elections are as follows:

WAC 391-25-470 MAIL BALLOT ELECTION PROCEDURES--ELECTIONEERING--OBJECTIONABLE CONDUCT. The executive director shall have discretion to conduct elections by mail ballot procedures designed to preserve the secrecy of employee voting. Multiple questions, includ­ing unit determination elections, may be submitted to employees at the same time on separate ballots. A notice and ballot materi­als shall be mailed by the agency to each eligible voter, and no less than fourteen days shall be provided between the date on which ballot materials are mailed to eligible em­ployees and the deadline for return of the ballots.

(1)        The following prohibitions apply to assure appropriate conditions for employees to cast their ballots:

(a)        There production of any document purporting to suggest, either directly or indirectly, that the agency endorses a particular choice in an election is prohibited.

(b)        The use of deceptive campaign practices improperly involving the commission and its processes is prohibited.

(c)        The use of forged documents is prohibited.

(d)       Coercion or intimidation of eligible voters, or any threat of reprisal or force or promise of benefit to eligible voters, is prohibited.

(e)        Changes of the status quo concerning wages, hours or other terms and conditions of employment of employees in the bargaining unit are prohibited during the period that a peti­tion is pending before the commission under this chapter.

(f)        Misrepresentations of fact or law are prohibited. To set aside an election, a misrepresentation must:

(i)         Be a substantial misrepresentation of fact or law regarding a salient issue;

(ii)        Be made by a person having intimate knowledge of the subject matter, so that employees may be expected to attach added significance to the assertion;

(iii) Occurring at a time which prevents others from effectively responding; and

(iv) Reasonably viewed as having had a significant impact on the election, whether a deliberate misrepresentation or not.

(g)        Election speeches on the employer's time to massed assemblies of employees are prohibited during the period beginning twenty- four hours before the scheduled date for the issuance of ballots to employees and continuing through the tally of ballots.

(2)        Each party may be represented by observers of its own choosing at the tally of ballots.

(3)        Violations of this rule shall be grounds for setting aside an election upon objections properly filed.

WAC 391-25-590 FILING AND SERVICE OF OBJECTIONS TO IMPROPER CONDUCT AND INTERIM ORDERS. The due date for objections is seven days after the tally has been served under WAC 391-25-410 or under WAC 391-25-550, regardless of whether challenged ballots are sufficient in number to affect the results of the election. The time period for objections cannot be extended.

(1) Objections by the petitioner, the employer or any intervenor shall set forth, in separate numbered paragraphs:

(a)        The specific conduct which the party filing the objection claims has improperly affected the results of the election; and/or

(b) The direction of election, direction of cross-check or other interim rulings which the objecting party desires to appeal to the commission.

(2)        Objections by individual employees are limited to conduct or procedures which prevented them from casting a ballot.

(3)        The original and three copies of the objections shall be filed at the commission's Olympia office as required by WAC391-08-120(1), and the party filing the objections shall serve a copy on each of the other par­ties to the proceedings as required by WAC391-08-120(3) and (4).

The purpose of a representation election is to determine the uncoerced choice of bargaining unit employees concerning their representation (if any) for the purposes of collective bargaining. It has long been the policy of the Commission that elections should be conducted under "laboratory conditions". See, Tacoma School District, Decision 4216-A (PECB, 1993).[1]

Elections in Summer-

Representation elections are often conducted in school employee bargaining units by the use of mail ballot procedures during the summer months, thus avoiding undue delay of the determination of the question concerning representation. In Bainbridge Island School District, Decision 2734 (PECB, 1987), the Executive Director outlined reasons that representation cases are often processed after the close of the school year, mainly that the fiscal year for school districts ends on August 31, and collective bargaining agreements in the schools are normally written for a fiscal year. The contract bar "window" period thus commonly falls in the month of June, just as schools are shutting down for the summer.

Generally, conduct improperly affecting the results of the election which may be objected to under WAC 391-25-590 is conduct within WAC391-25-470. The conduct the employer objects to does not fall into those categories.

Low Voter Turnout not a Valid Reason for Objection-

The employer's objections revolve mainly around low voter turnout, and as such, do not violate any section in Chapter 391-25 WAC. A per se approach was rejected by the Commission in City of Federal Way, Decision 4088-B (PECB, 1994), where a union suggested that low vote counts were in and of themselves evidence of misconduct and sufficient to overturn an election.

In Chelan-Douglas County PTBA (LINK), Decision 4607 (PECB, 1994), the employer was concerned that employees would disregard the mail ballot and that the mail ballot procedure would affect the number of votes cast in the election, but expected voter turnout was not a basis to refrain from using the mail ballot procedure in that case.

In Lewis County, Decision 368 (PECB, 1978), the employer's objections were partly based on the fact that only 57 of 72 eligible voters cast ballots. The employer claimed that three eligible voters were absent due to illness, that six part-time employees abstained from voting believing that abstention counted as a negative vote, that seven employees did not vote because they were extremely busy in their employment, and that two employees were away on business. The facts were not considered sufficient cause to set aside an election. While an on-site election was involved in that case, the holding would apply to mail ballot elections, as well.

Employees are free to vote or not vote, and setting aside the election would be unlikely to alter the outcome.

NOW, THEREFORE, it is

ORDERED

The objections filed by Pullman School District are DISMISSED, and the case is remanded to the Executive Director for the issuance of a certification.

Issued at Olympia, Washington, on the 21st day of September, 1999.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W. DUFFY, Commissioner