With a soon-to-be reformulated Board, which will be comprised of a majority of Republican appointees, don’t expect to see decisions like this again anytime soon.
In 2015, the NLRB pushed through changes to its rules governing the secret ballot election process by which employees determine whether they wish to be represented by a labor union. Many perceived these rules – labeled by some as the “Ambush Election Rules” – to have been implemented by a pro-labor Democrat-appointed NLRB majority to boost union organizing success, principally by shortening the period between a union’s request for an election and the election itself, and by making it more difficult for an employer to raise important, substantive legal issues prior to the election. Also among these rule changes were certain procedural requirements. One of these was that the employer serve both the NLRB and all other parties to the case, i.e., the union, with a copy of the official voter eligibility list sufficiently in advance of the election.
In URS Federal Services, Inc., a union sought to represent a group of the employer’s employees. Those employees, however, resoundingly rejected the union, voting 91 to 54 against representation. Following that defeat, the union filed an objection with the NLRB, arguing that the election should be set aside, and a second vote held, because the employer failed to send to it a copy of the voter eligibility list, as required by aforementioned NLRB election rule.
That seems sensible, right? If the union wasn’t provided with the voter eligibility list, that very well could have impacted the election outcome. However, here the union did receive the voter eligibility list, and received it on a timely basis. What happened was that the employer sent the list to the NLRB, but did not send a copy to the union, as the rules instruct. The NLRB sent the list it received from the employer, which it received on a Saturday, to the union the following Monday, which was the first business day after the list was due. The union nonetheless claimed that because the employer did not send a copy of the list to the union, and instead the union received it from the NLRB (on the first business day it could have been received), that interfered with the election outcome.
The local NLRB official who first considered the union’s objection rejected it, noting that the union received the list on a timely basis, and that setting the election aside simply because the employer did not send a copy of the list to the union, and instead the union received it from the NLRB, would “exalt form over substance.” That sure seems like the right outcome based on simple common sense – the election results could not have been tainted by the union’s failure to receive the list from the employer when it received it from the NLRB on a timely basis, and to set aside the election based on this procedural technicality would make little sense under the circumstances, where employees rejected representation on a nearly 2-to-1 basis.
Undaunted, the union appealed to the Board itself in Washington, D.C., where the issue was considered by the three current Board members – Chairman Pearce and Member McFerran, the Democrat-appointed majority, and the one Republican member, Member Miscimarra. In a 2-1 decision, the majority reversed, set aside the election, and ordered a new election, ruling that because the election rules require that an employer serve the voting eligibility list on both the NLRB and the union, and because the employer did not do so here, the rule did not allow any other outcome but to require the election to be set aside and a new election conducted. In dissent, Member Miscimarra blasted the majority decision, accusing the majority of lightly setting aside unequivocal election results as well as creating a double standard under a Board decision issued just a few months earlier in which the Democrat majority ruled in favor of a union, even though the union similarly failed to comply with the technical requirements of the election rules, in order to favor the union in this case. In so doing, Member Miscimarra specifically pointed out that there was “not a scintilla of evidence that the Union’s timely receipt of the voter list from the Region, rather than from the Employer, affected the results of the election.”
With the upcoming change to the NLRB’s composition under the new presidential administration, result-oriented decisions such as these, which appear to avoid common sense in order to reach desired, pro-union outcomes, may become a thing of the past.