|
ORDER ON SEA/SEIU LOCAL 1984’S
OBJECTION TO CONDUCT AFFECTING OUTCOME OF ELECTION
On January 14, 2008 the SEA filed an Objection to Conduct
Affecting Outcome of Election based upon the potential omission of an
eligible voter from the list of eligible voters as described in the January
10, 2008 letter from Donald M. Kries, General Counsel to the Public
Utilities Commission (“PUC”) and the timing of the PELRB’s January 9, 2008
Notice of Decertification of Exclusive Representative. The petitioners filed
their response to the SEA’s objection on January 14, 2008.
At the election, a majority of eligible employees voted 26-24 for no
representation. After the election both parties executed a January 9, 2008
Report of Election and a Certification on Conduct of Decertification
Election. As reflected in the report, the SEA challenged 1 ballot, a
challenge which was subsequently withdrawn, and accordingly the formerly
“challenged” ballot was counted. In the certification both parties agreed
that “all eligible voters were given an opportunity to vote …”
Post election objections are allowed under Pub 303.11,
which provides:
Hearing on Challenges and Objections. All
objections to the conduct of an election by the representative of
the board and to conduct affecting the outcome of an election not
occurring at the polling area shall be filed with the board within 5
days after the report of election is filed under Pub 303.10. If
challenges or objections are filed, the board shall conduct any
hearing it has directed within 10 days of the date they are filed.
As to the SEA’s suggestion that there was a “rush to
election,” a complaint raised for the first time in the current SEA
objection, the board observes that the interval between the pre-election
conference and the election in this case is, if anything, greater than is
typically true in PELRB election proceedings. Further, Pub 303.02 (a)
contains the admonition that pre-election proceedings should be conducted
“as expeditiously as possible,” and the SEA expressly agreed to the January
9, 2008 election date, as evidenced by the December 5, 2007 Pre-Election
Conference form.
The board finds that whether another election should be conducted on account
of Mr. Brennan’s omission from the list of eligible voters is a close
question. Under the board’s rules, the PUC was required to file an employee
list at the time an order of election issued and to “update this voting list
by delivering to each party receiving a copy of the original list the name
and classification of any person newly eligible for inclusion in the
bargaining unit up to the end of the eligibility period agreed to by the
parties or, failing agreement, determined by the board at the pre-election
conference.” Pub 303.01(b). The SEA has a related responsibility to
investigate and assess the accuracy of the employee voting lists provided by
the PUC, since Pub 303.03 (a) specifically provides that “[d]isputes
regarding the accuracy of the voting list shall be raised at the
pre-election conference. The board shall resolve any disputes regarding the
accuracy of the updated list prior to the day scheduled for the election.”
The pre-election conference in this matter was conducted on December 5, 2008
following the PUC’s production of a voting list, dated November 27, 2007,
and following the PUC’s acceptance of Mr. Brennan’s transfer on November 30,
2007.
Under these rules, it is evident that the PUC and the SEA share
responsibility for the fact that Mr. Brennan’s omission from the list of
eligible voters was not discovered until after the election was held. As
between the SEA and the PUC, the PUC is the more culpable party, since the
PUC should have been administratively aware of Mr. Brennan’s transfer from
the Office of Information Technology to the PUC on November 30, 2007, yet
the PUC did not raise this fact to the board or the parties until the day
after the election was held, at which time attorney Kreis’ letter was filed.
The PUC’s obligation to file an accurate list of employees and also process
and report to the parties and the board any changes in the composition of
that list in a timely manner during election proceedings is not an
insignificant or inconsequential responsibility, as it relates to a core and
fundamental aspect of the election process.
Upon consideration of the circumstances of this case, including the
potential effect on the final election result, the board finds that Mr.
Brennan’s omission from the employee list was sufficiently material to call
into question the validity of the election proceedings to a degree which
requires the conduct of a new election. Accordingly, the results of the
January 9, 2008 election are set aside and the previous order of
decertification is therefore vacated. This matter shall proceed as
expeditiously as possible to another pre-election conference and election.
So Ordered
Signed this 5th day of February, 2008.
/s/ Jack Buckley
Jack Buckley, Chair
By unanimous decision. Chair Jack Buckley. Alternate Members Kevin E. Cash
and Sanford Roberts, Esq. present and voting.
Distribution:
Sara Willingham, Manager of Employee Relations, State of NH
Thomas Getz, Commissioner, Public Utilities Commission
John Krupski, Esq.,
Jody O’Marra, Petitioner
Lynn Fabrizio, Petitioner
Back
|
