2-1 NLRB sets aside union defeat for technical ‘quickie election’ violation

By Joy Waltemath

By Joy P. Waltemath, J.D.

Because an employer timely served its voter list to the regional director only, and not to the parties directly—although the regional director then promptly forwarded the list to the union, which received it on time—a 2-1 NLRB agreed with the union that this procedural error under the “quickie” election rule was reason to set aside the election, which the union lost 91-54, and order a second election. Member Miscimarra dissented, of course (URS Federal Services, Inc., December 8, 2016).

Union received voter list. The facts were simple and undisputed. The parties entered into a Stipulated Election Agreement on Thursday, March 3. The employer filed the voter list with the Region on Saturday, March 5, within two business days of the approval of the parties’ election agreement, as required by NLRB rules and the agreement itself. Although the Region then forwarded the list to the union on Monday, March 7—eight days before the scheduled election—the employer neither served the list on the union as the rules and the agreement required, nor did it file a certificate of service. And it had not offered any explanation for failing to do so, the Board pointed out.

But from Region, not employer. This was just what the election rule was designed to eliminate, reasoned the Board, saying it was trying to eliminate this two-step process—under which the employer would file the list with the regional director, who would then forward the list to the other parties—because it had caused delay and unnecessary litigation, including in circumstances like these, where “employers filed the list with the regional office after business hours on a Friday, and the regional office subsequently does not forward the list to the petitioner until the following Monday.”

Clear and mandatory rule. To the Board majority, its rules were clear and mandatory. The Acting Regional Director, who found no violation because the union received the voter list in a timely fashion, had no discretion under Section 102.62(d) to excuse parties from complying with the voter-list service requirement. It was irrelevant that some other provisions of the Board’s regulations gave discretion to regional directors in other areas, said the Board, since the section’s clear language and the parties’ Stipulated Election Agreement both said the employer “must” provide the list to “the Regional Director and all of the other parties.” That did not mean that the union need only timely “receive” the list.

No double standard. In addition, the majority took issue with Member Miscimarra’s “misplaced accusations that we are setting aside the election lightly and creating a ‘double standard’ … in order to favor the union in this case.” In Brunswick Bowling Products, LLC, cited by both the majority and the dissent, the majority said it had not created a double standard because it had expressly found that “the Regional Director erred by receiving into evidence the Union’s statement of position and by not precluding the Union from raising the contract bar issue.” It then “applied the consequences for statement of position service failure specified in 102.66(d), just as we are now applying the consequences for voter list service failure specified in 102.62(d).” However, Brunswick Bowling went on to state that the regional director could nevertheless consider the contract bar issue because Section 102.66(b) expressly grants regional directors discretion to receive evidence necessary to resolve certain pre-election issues, yet there was “no analogous provision allowing discretion with respect to the service requirement in Section 102.62(d).”

Miscimarra dissent. The dissent set forth three reasons Miscimarra disagreed with the majority. First, the Board has long held that elections should not be lightly set aside, a principle the majority did not effectively address. Second, Miscimarra said the new election rule affords regional directors broad discretion in many areas, and the regional director’s decision was “well within this zone of discretion,” to which the majority had strenuously disagreed. And the dissent cited the Board’s recent unanimous decision in Brunswick Bowling, where the Board unanimously upheld a regional director’s determination in favor of a union—notwithstanding its failure to effectuate timely service (of its position statement, not the voter list) under the Election Rule.

“Lightly set aside.” As Miscimarra saw it, the Board had only to determine whether a purely technical violation of a service requirement, timely cured by the Region, warranted overturning election results that overwhelmingly disfavored the union. There was no question that the employer timely filed the list with the Region and the union timely received the list on the second business day after the Regional Director approved the election agreement. So, the Board majority overturned the election results because the union received the list of eligible voters from the Region instead of the employer. Miscimarra agreed that there was no valid reason to overturn the results of the election, saying that the majority instead of following well-established Board law, was choosing to “lightly set aside” the election.

Source:: Employment Law Daily Newsfeed