As our readers may recall, last year HRLegalist previously reported how the National Labor Relation Board’s (“Board”) quickie election rules would impact an employer’s ability to counter a union’s organizing efforts by expediting the election process and effectively limit the employer’s ability to raise pre-election challenges to protect the rights of their employees. We also pointed out that the new rules imposed technical obligations on employers that could prove to be potential minefields if not strictly followed. Earlier this month, the Board emphasized that point in confirming that an employer’s “technical” failure to send a copy of a voter list to a union warranted setting aside an election that the union had lost by an overwhelming margin, even though the union had timely received a copy of the same voter list from the Board’s regional office that was conducting the election.
The Union Timely Received the Voter List From the Region
In URS Federal Services, Inc., 365 NLRB No. 1 (December 8, 2016), the employer and the union had entered in to a stipulated election agreement on Thursday, March 3, 3016, which was approved by the Board’s Regional Director. Section 102.62(d) of the Board’s new Rules and Regulations provides that an employer “shall provide to the regional director and the parties…a list of the full names [and other information] of all eligible voters… within 2 business days after the approval” of the stipulated election agreement. Section 102.62(d) further provides that the employer’s failure to follow these procedural mandates “shall be grounds for setting aside the election whenever proper and timely objections are filed.” The employer filed the voter list, commonly referred to as an “Excelsior List,” with the regional director on Saturday, March 5, 2016, but failed to serve the list on the union. The Regional Director provided the voter list it had received from the employer to the union on Monday, March 7, 2016. Accordingly, the union received the voter list on the day it was due, i.e., within 2 business days of the approved election agreement.
The Union Lost the Election By a Wide Margin
The parties proceeded with the election, and the employees voted overwhelmingly against union representation by a 91-to-54 vote. The union timely objected to the election based on the employer’s technical failure of not serving the voter list directly on the union. Citing years of Board precedent, the Regional Director found that the employer substantially complied with its obligations and that the union was not prejudiced since the union ultimately received the list when it was due. The Regional Director also considered the margin of defeat and decided, based on the totality of circumstances, to overrule the union’s objection.
The Board Set Aside the Election Because the Employer Did Not Send the Voter List Directly to the Union
The Board rejected the Regional Director’s decision and set aside the election, ordering a second election be conducted. The Board ignored years of legal precedence and claimed that the “mandatory” language of the rules deprives regional directors of the discretion to excuse such an employer failure. The Board noted that the new rule was meant to eliminate the prior existing two-step process of providing the voter list to the Region which was then expected to send it to the union. The Board’s decision in this case has created a bright line rule concerning the voter list and the consequences that an employer faces for any technical violation.
Follow the Board’s Rules
Under President Obama, the Board has altered union election rules, overturned longstanding Board precedent and expanded union rights. Many employers are anticipating changes at the Board with the incoming administration and are hoping for a shift in Board philosophy that is more employer friendly. That may indeed occur, but for now employers challenging union petitions for representation need to be careful to comply with each requirement of the new election rules, as even minor technical failures may result in an election being set aside and the petitioning union getting a second chance at representing the employees.
Thomas T. Hearn is an attorney in the Labor Relations and Employment Law Department at Obermayer where he concentrates his practice in labor and management relations, employment discrimination and employee contracts. He can be reached at 215.665.3013 or Thomas.Hearn@obermayer.com.