P.E.R.C. No. 2013-18, Hudson Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Public Employer, -and- Docket No. RO-2012-009 HUDSON COUNTY UNION, LOCAL 1 AMALGAMATED, Petitioner, -and- INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 711, LOCAL 1007, Intervenor. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request for review of D.R. No. 2012-8 filed by the International Union of Painters and Allied Trades, District Council 711, Local 1007. That decision certified Hudson County Union Local 1 Amalgamated as the majority representative of a unit of painters employed by Hudson County. Having found that a prejudicial error may have occurred in the conduct of the election, the Commission remands the case to the Director of Representation to conduct a new election. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Public Employer, -and- Docket No. RO-2012-009 HUDSON COUNTY UNION, LOCAL 1 AMALGAMATED, Petitioner, -and- INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 711, LOCAL 1007, Intervenor. ¶

AppearancesAppearances: ¶

For the County of Hudson, Louis C. Rosen, Esq., Deputy County Counsel ¶

For the Petitioner, Cresci Law LLC, attorneys (Peter J. Cresci, of counsel) ¶

For the Intervenor, Spear Wilderman, P.C., attorneys (Martin W. Milz, of counsel and on the brief) ¶

DECISION ¶

On July 22, 2011, the Hudson County Union Local 1 Amalgamated ( “Local 1") petitioned to represent a negotiations unit of approximately six (6) painters employed by County of Hudson, who were represented by International Union of Painters and Allied Trades, District Council 711, Local 1007 ( “IUPAT” ). In the absence of a consent by all parties, the Director of Representation, on October 24, 2011, directed a secret mail ballot election, with all ballots to be returnable to the Commission’s Post Office box no later than 9 A.M. on November 17, 2011, with the ballots to be counted at 11 A.M. on that same date. ¶

Through an administrative error, the Notice of Election, and the ballots which were sent to each of the voters on October 28, 2011 indicated that the ballots were to be returned to the Commission’s post office box no later than 9 A.M. on November 18, rather than on the 17th as directed by the Director of Representation. When this error was discovered, on November 9, 2011 a corrected Notice of Election was sent to all parties, and was posted on the County bulletin boards where notices to employees are normally posted. However, the individual employees affected were not individually provided with corrected ballots or notices. On the morning of November 17, 2011 a Commission staff agent retrieved the ballots from the post office box. Only two ballots were found to be in the box. Those ballots were counted in the presence of observers from all three parties, and both votes cast were for Local 1. Observers from each party signed a tally of ballots. ¶

On the morning of November 23, 2011 before a Certification of Representative naming Local 1 as the bargaining agent was issued, a Commission staff agent, at the Commission post office box to retrieve ballots from an unrelated matter found three (3) envelopes containing ballots regarding the instant matter in the box. Those envelopes were secured in the Commission safe, and the parties were notified of their discovery and that at the same time, the issuance of the Certificate of Representative would be withheld pending an investigation of the circumstances surrounding the delayed appearance of these ballots. ¶

The Director conducted an investigation of the situation and had an interview conducted and a certification procured from the Supervisor of Customer Services at the United States Postal Service, located at 680 Highway 130, in Trenton, New Jersey. He advised that based upon his review, the one envelope postmarked in Kearny on the afternoon of November 15, 2011 should have been in the Commission’s post office box by the morning of November 17 at 9 A.M. but “was delayed in reaching its destination for unknown reasons.” However, he opined that the 2 ballots which were postmarked in Kearny on the 16th of November would not have reached the Commission’s post office box by November 17, at 9 A.M. “under any circumstances.” ¶

After providing all parties with an opportunity to submit argument regarding the question as to the determination of the opening and counting of the three after-acquired ballots, on December 28, 2011 the Director issued her decision, D.R. No. 2012-8 in which she determined that the two Ballots postmarked November 16, would not have been timely mailed, and therefor should not be counted. As to the single ballot postmarked on the 15th, it could not alter the outcome of the election regardless of the vote cast, and therefor need not be counted. The Director then issued a Certification of Representative in favor of Local 1. ¶

On January 9, 2012 IUPAT filed a request for review of the Director of Representation’s decision. No responsive papers were filed either by the public employer or the petitioner. Under N.J.A.C. 19:11-8.2, a request for review will be granted only for one or more of these compelling reasons: ¶

1. A substantial question of law is raised concerning the interpretation or administration of the Act or these rules; ¶

2. The Director of Representation's decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of the party seeking review; ¶

3. The conduct of the hearing or any ruling made in connection with the proceeding may have resulted in prejudicial error; and/or ¶

4. An important Commission rule or policy should be reconsidered. ¶

We grant the request pursuant to Section 3 above, and remand this matter to the Director of Representation to conduct a new election which will be conducted on site at a single polling place and with voting hours appropriate to ensure the ability of each of the employees to cast a free and fair vote in the election. ¶

In the instant matter there was a confluence of circumstances which casts doubt upon the outcome of the election. The initial administrative error misstating the date by which ballots were to be received; the failure to insure that all eligible voters were made aware of the corrected date; the small number of potential voters involved; and finally and most importantly the apparent mishandling of the mailed ballots by the United States Postal Service. These unique circumstances all lead to the conclusion that it cannot be said with certainty that all voters who sought to vote were given an opportunity to do so. ¶

In Rutgers, The State University of New Jersey, P.E.R.C. No. 2000-101, 27 NJPER 1 (¶32000 2000) ballots were also misplaced by the post office. We observed that “No option on how to proceed would have been perfect. Counting the ballots was the best option among the imperfect solutions. It would permit all of those who voted to have their voice heard ..” ¶

So too, under the circumstances of this election, it is our belief that fulfillment of our obligation to insure that all voters who desire to do so have a full and fair opportunity to cast their ballot requires us to remand this matter to the Director of Representation so that a new in person election supervised by Commission staff may be conducted. ¶

OrderORDER ¶

The International Union of Painters and Allied Trades, District Council 711, Local 1007’s request for review is granted. The matter is remanded to the Director of Representation for direction of a new on-site election in accordance with our determination of the issues discussed in the foregoing opinion. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Boudreau, Eskilson, Jones, Voos and Wall voted in favor of this decision. None opposed. Commissioner Bonanni was not present. ¶

ISSUED: September 27, 2012 ¶

Trenton, New Jersey ¶