King County Public Hospital District 2, Decision 9205-B (PECB, 2006)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
ANDREA SHEAHAN	CASE 18802-E-04-2983
Involving certain employees of:	DECISION 9205-B - PECB
KING COUNTY PUBLIC HOSPITAL
DISTRICT 2	ORDER ON OBJECTIONS
In the matter of the petition of:
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1199NW	CASE 19842-E-05-3106
Involving certain employees of:	DECISION 9206-B - PECB
KING COUNTY PUBLIC HOSPITAL
DISTRICT 2	ORDER ON OBJECTIONS

Geoff Miller, Attorney at Law, for Service Employees International Union, Local 1199NW.

Davis Wright Tremaine, LLP, by Mark A. Hutcheson, Attorney at Law, responded on behalf of the employer.

Ronald Tuck and Sharon Whetstone, for the intervenor, Kirkland Public Employees Association.

These cases come before the Commission on election objections filed by the Kirkland Public Employees Association (KPEA) on June 27, 2006.[1] Both King County Public Hospital District 2 d/b/a Evergreen Hospital (employer) and Service Employees International Union Local 1199NW (SEIU) filed timely responses to a request by Commission staff that they comment on the objections.

ISSUE

The only issue before the Commission at this time is whether the objections filed by the KPEA state a claim for relief available. In making this analysis, we presume that all of the facts alleged in the objections are true and provable.

The objections filed in this case fail to form a basis for overturning the election result. We dismiss the objections, and remand these cases to the Executive Director for further proceed­ings on challenged ballots affecting the outcome of the election.

APPLICABLE LEGAL PRINCIPLES

The employer and employees involved in this proceeding are covered by the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW. The Legislature delegated the conduct of representation elections to this Commission (in RCW 41.56.070) and directed this Commission to adopt rules consistent with the best standards of labor-management relations (in RCW 41.56.090). Our rules governing the conduct of representation proceedings include:

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) The reproduction 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) Conduct in violation of WAC 391‑25‑140 is prohibited.

(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 on the scheduled date for the issuance of ballots to employees and continuing through the tally of ballots. Other electioneering allowed under (a) through (f) of this subsection is permitted during that period.

(2) Each party may be represented by observers of its own choosing at the tally of ballots. Any lists of those who have voted or who have abstained from voting shall be surrendered to the agency at the conclusion of the tally.

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

ANALYSIS

When the SEIU filed its representation petition on October 7, 2005, Case 19842-E-05-3106, a decertification petition for the same bargaining unit, Case 18802-E-04-2983, was already pending before the Commission. Commission staff previously granted the KPEA’s motion to intervene in Case 18802-E-04-3106, and the cases were consolidated and a representation election was held. The results of a representation election tallied on December 6, 2005, indicated that a run-off election was necessary between the SEIU and the KPEA. The employer filed timely objections to that election, and some issues were referred for a hearing. The employer withdrew those objections prior to a hearing or any ruling by the Commission, and the case was remanded to the Executive Director for conduct of the run-off election.[2]

Representation Coordinator Sally Iverson conducted an investigation conference on May 18, 2006, by telephone conference call, for the run-off election. The parties reviewed the eligibility list and discussed election arrangements. Commission staff issued notices and mail ballot materials on May 25, 2006, with the deadline for return of June 20, 2006. The tally of ballots issued on June 21, 2006, showed:

1.                        Approximate number of eligible voters . . . . . . . . . . . . .507

2.                        Void ballots. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3.                        Votes cast for [KPEA] . . . . . . . . . . . . . . . . . . . . . . . . . .158

4.                        Votes cast for [SEIU] . . . . . . . . . . . . . . . . . . . . . . . . . . .164

. . . .

7.            Valid ballots counted . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

8.            Challenged ballots cast . . . . . . . . . . . . . . . . . . . . . . . . . . .12

9.            Valid ballots counted plus challenged ballots . . . . . . . . 344

10.          Number of ballots needed to determine election. . . . . . .168

The Tally of Ballots indicated that the challenged ballots affected the outcome of the election. Following the tally, Commission staff informed the parties that a hearing would be needed to address those ballots.

On June 27, 2006, the KPEA filed timely election objections. The following day, Commission staff asked the employer and SEIU for their responses to the KPEA’s objections on or before July 10, 2006. The employer filed its response on July 10, 2006, asking that all of the KPEA’s objections be sustained. The SEIU filed a response on July 10, 2006, asking that all of the KPEA’s objections be denied. We identify seven separate issues raised by the KPEA’s objections, and address them under the headings that follow.

1. Advice to Not Use Hospital’s Mailroom

Article I of the objections filed by the KPEA describes a meeting held on May 20, 2006, prior to the mailing of the ballots for the run-off election to employees. The KPEA specifically alleges that an SEIU organizer told gathered employees, “[N]ot to mail the PERC ballots within the hospital post office . . . .”

Accepting for purposes of our present inquiry that such a statement was made, the statement by itself does not rise to the level of objectionable conduct. The movement of mail ballots from the hands of eligible voters to the Commission through the United States Postal Service invokes the protections of federal laws to protect the security of ballots. Tacoma School District, Decision 4216-A (PECB, 1993). The notices issued for this election included:

DEPOSIT THE RETURN ENVELOPE IN THE U.S. MAIL. Postage is prepaid and mailing invokes the protection of federal mail fraud laws. Employees can deliver their own ballots to the Commission’s Olympia office (with proper identification), but no ballot will be accepted by any other means.

(emphasis added). Proof that an SEIU agent told employees not to use the employer’s internal mail system would not be a basis to overturn the election in this case.

2. Attempt to Collect Ballots

Article I of the objections filed by the KPEA also describes a statement made at the meeting held on May 20, 2006. Specifically, the KPEA alleges that an SEIU organizer told gathered employees, “[T]o bring in their PERC ballots to her, . . . and she would collect their PERC ballots.”

We would be very concerned about allegations of actual interference with the voting process prescribed by our rules and election notices. WAC 391-25-470(1)(b) prohibits “[t]he use of deceptive campaign practices improperly involving the commission and its processes . . . .” The allegations before us fall short of alleging any actual follow-through on the alleged statement. The election notices issued five days after the alleged statement gave clear instructions to the eligible voters, including the above-quoted reference to mail fraud. In the absence of any proof that the SEIU followed through with their suggested improper procedure, no basis exists to overturn the election as to this claim.

3. Exit Polling

Article 2 of the objections filed by the KPEA describes questions put to eligible voters by SEIU representatives while the ballots were out to the employees. The specific inquiries concerned whether the employee had voted and how the employee had voted.

Nothing in our rules prevents exit polling by unions,[3] and eligible voters in representation elections have the same right to disregard a union pollster as they have to disregard pollsters in civil elections. Proof that the SEIU conducted a form of exit polling does not form a basis to overturn the election in this case.

4. Campaigning Directed to Employee Residences

Articles 2 and 3 of the objections filed by the KPEA describe contacts from SEIU representatives that were received by eligible voters at their residences or on their personal telephone numbers. Some of the named employees questioned how the SEIU obtained their telephone numbers; some of the named employees disliked having additional contacts after telling SEIU representatives to cease using their personal addresses or telephone numbers.

Nothing in our rules restricts access to or use of personal residence addresses or telephone numbers of eligible voters in representation elections. Proof that SEIU agents or supporters contacted employees at personal residences or through telephone calls would not be a basis to overturn the election in this case.

5. Misrepresentation Concerning KPEA

Article 4(a) of the objections filed by the KPEA concerns a campaign flyer issued by the SEIU in November 2005, in advance of the first election in this case. Specifically, the KPEA alleges that the SEIU incorrectly described it as “Local 6" in reference to the former exclusive bargaining representative of this bargaining unit.[4] The objections filed by the employer after the first election also addressed the statements made in this flyer, and we directed that a hearing be held to obtain a factual record at that time. At this time, the KPEA has legal standing to file an objection concerning this campaign flyer,[5] but we must evaluate that objection in the context of the overall proceedings.

The Commission historically declines to be the judge or arbiter of each and every statement made in the campaigns preceding represen­tation elections. Eligible voters must be expected to make their own evaluations about campaign puffery. Our rule severely limits the range of misrepresentation that is objectionable. In this case, even accepting that the SEIU flyer aligning the KPEA with Local 6 was a “substantial misrepresentation of fact or law regarding a salient issue” at that time under WAC 391-25-470(1)-(f)(i), and that it was made by “a person having intimate knowledge of the subject matter, so that employees may be expected to attach added significance to the assertion” under WAC 391-25-470(1)-(f)(ii), that is not enough to warrant a hearing at this time. SEIU distributed the flyer at issue more than six months before the deadline for return of ballots in the election now before us, and there are no allegations that the SEIU distributed the flyer at any time since November 2005. There are also no facts suggesting that any party prevented the KPEA from effectively responding in that six-month period. It follows that none of the factual allegations support a finding that the November flyer had a significant impact on the election conducted in June. In the absence of any alleged repetition of the potential misrepresentation in connection with the election now under consideration, proof that the SEIU misrepresented a relationship between the KPEA and Local 6 in November 2005 would not be a basis to overturn the election.

6. Misrepresentation of Past Successes

Article 4(b) of the objections filed by the KPEA alleges that the SEIU mailed a campaign flyer in May 2006 which contained misleading or untrue claims about the success of the SEIU in other hospitals. The KPEA challenges one statement made by the SEIU’s flyer on the basis that the employer does not have comparable employees, while the KPEA challenges two additional statements on the basis that employees performing the comparable functions are not included in this bargaining unit.

As we previously noted, the precedents and rules of this Commission expect employees to make their own evaluations on most campaign puffery. Even if the SEIU statements at issue here could have been confusing or potentially misleading, the absence of similar employees from this bargaining unit inherently contradicts findings that the statements concerned “a salient issue” in this case or that they were made by a person having “intimate knowledge of the subject matter” so that employees would attach added significance to them. None of these allegations supports a finding that they had a significant impact on the election, so we need not reach or decide whether the KPEA was deprived of the opportunity to respond to the statements. Proof that the SEIU engaged in campaign puffery would not be a basis to overturn the election in this case.

7. Missing Ballots and/or Lack of Foreign Language Ballots

Article 5 of the objections filed by the KPEA concerns employees who did not receive ballot materials or were unable to understand the ballot materials they received from the Commission. Specifically, the KPEA alleges that numerous (but unspecified) employees did not receive ballots, that numerous (but also unnamed) employees were unable to understand the ballot materials, and that the same (still unidentified) employees are requesting ballot materials printed in their own speaking languages.

Review of our case file discloses the Representation Coordinator conducted an investigation conference in this matter on October 26, 2005. Consistent with routine practice, the Representation Coordinator asked the parties about the need for foreign language ballots. The parties agreed at that time to have ballot materials made available in the English, Spanish, Tagalog, Vietnamese, Cambodian, and Chinese languages. The ballot materials sent to all eligible voters on November 9, 2005, included a postcard containing messages, in those respective languages, inviting employees to send in the postcard to receive ballots in their preferred language.

Notwithstanding the parties’ stipulation, the Commission staff did not receive even one request for foreign language ballot materials in the first election conducted in this case. The Representation Coordinator called this fact to the attention of the parties during an investigation conference held on May 18, 2006, and none of the parties objected to using English as the only language for the run-off election. Apart from its failure to identify any specific individual in these allegations, the KPEA will not be heard to now challenge a procedure that it accepted when presented with an opportunity to request foreign language ballots. See Lewis County, Decision 378 (PECB, 1978) (stipulations made in proceedings before the Commission are binding). This objection does not provide a basis to overturn the election result.

NOW, THEREFORE, it is

ORDERED

The election objections filed by the Kirkland Public Employees Association in the above-captioned cases are DISMISSED, and these cases are REMANDED to the Executive Director for further processing.

Issued at Olympia, Washington, the 15th day of August, 2006.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

PAMELA G. BRADBURN, Commissioner

[SIGNED]

DOUGLAS G. MOONEY, Commissioner