Ballots from Stipulated Election Delayed Five Months to be Counted; Intervening Hirees' Ballots Excluded: NLRB | Practical Law

Ballots from Stipulated Election Delayed Five Months to be Counted; Intervening Hirees' Ballots Excluded: NLRB | Practical Law

In Tekweld Solutions, Inc., the National Labor Relations Board (NLRB) sustained challenges to the election ballots of 23 employees hired after the stipulated eligibility date despite a lengthy postponement of the election from the stipulated election date while blocking charges were resolved.

Ballots from Stipulated Election Delayed Five Months to be Counted; Intervening Hirees' Ballots Excluded: NLRB

by Practical Law Labor and Employment
Published on 26 Aug 2014 • USA (National/Federal)
In Tekweld Solutions, Inc., the National Labor Relations Board (NLRB) sustained challenges to the election ballots of 23 employees hired after the stipulated eligibility date despite a lengthy postponement of the election from the stipulated election date while blocking charges were resolved.
On August 15, 2014, in Tekweld Solutions, Inc. (Warehouse Production Sales and Allied Services Employees Union, Local 811), the panel (Board) heading the NLRB's election and judicial functions held that an acting regional director did not abuse his discretion by recommending that the Board sustain challenges to the election ballots of 23 employees hired after a stipulated eligibility date despite the lengthy postponement of the election from the stipulated initial election date due to intervening unfair labor practice (ULP) charges, commonly referred to as blocking charges (361 N.L.R.B. slip op. 18, (Aug. 15, 2014)).

Background

On March 5, 2013, the union filed a representation petition. On March 21, 2013, the parties entered into a Stipulated Election Agreement, which included a voting eligibility date of March 8, 2013 and an election date of April 16, 2013. The union filed several ULP charges causing the election not to proceed as scheduled. In August 2013, the parties settled the ULP charges. The election eventually occurred on November 19, 2013, resulting in the union winning 21-20 (over the alternative "No union") with 30 challenged ballots.
The Acting Regional Director recommended that the Board:
  • Exclude 24 ballots that the NLRB election agent challenged because the voters' names did not appear on the eligible voters list (Excelsior list) based on employment rolls as of March 8, 2013, the stipulated eligibility deadline. The employer confirmed that 23 of the 24 individuals were hired after the March 8 eligibility date.
  • Exclude one ballot the union challenged because the worker was employed by an employment agency rather than the employer.
  • Count six employees' ballots originally challenged by the employer. The employer withdrew its challenge to six ballots that it made subject to confirming those employees' eligibility.
The employer argued that the Acting Regional Director:
  • Erred by recommending that the Board sustain the election agent's challenges to the 23 employee ballots.
  • Was obligated to revise the voting eligibility date (and Excelsior list) due to the postponed election date.

Outcome

The Board majority (Members Hirozawa and Johnson) noted that:
  • The Board's Casehandling Manual:
    • states that the eligibility date should be the last payroll period before the Regional Director's approval of the election agreement;
    • states that in rescheduled elections, an employer is not required to supply a second list of names except in unusual circumstances; and
    • does not indicate that an NLRB region should change a stipulated eligibility date where the original election is delayed.
  • The employer did not timely object to the NLRB's usage of the March 8, 2013 eligibility list. It objected only after the election occurred and the Acting Regional Director issued the election report and recommendations.
  • The rulemaking regarding the NLRB's election process was still under consideration, and included new provisions regarding the processing of blocking charges and the content of Excelsior list disclosures.
The Board majority:
  • Found that there was no Board precedent directly on point.
  • Held that:
    • the events were not such unusual circumstances that a new election was required; and
    • all 24 ballots challenged by the Board agent were appropriately excluded.
  • Distinguished two cases in which the NLRB used an updated Excelsior list for an election. In particular, it found that:
    • Interlake Steamship Co. was inapposite because it involved the rerun of a runoff election (rather than an initial election), where more than two years passed between the voter eligibility date and the election (178 N.L.R.B. 128 (1969)); and
    • Hartz Mountain Corporation was inapposite because it involved a second election where the initial election was nullified after the prevailing union later disclaimed representation of the bargaining unit (260 N.L.R.B. 323 (1982)).
  • Ordered that the NLRB Region:
    • count the ballots of six employees whose ballots the employer initially challenged but subsequently agreed should be counted; and
    • issue a revised vote tally with the appropriate certification of election results.
In dissent, Member Miscimarra:
  • Found that parties did not benefit from their stipulated agreement given the lengthy delay and the related changes in employment rolls and other circumstances.
  • Would have ordered a new election, since he found these unusual circumstances warranted updating the prospective voting list and letting the current employees decide whether the union should represent them.

Practical Implications

Circumstances can change between a stipulation for an election and the ultimate election date, especially if there is litigation of intervening blocking charges. When negotiating for a stipulated election, parties should consider negotiating about that contingency, for example by agreeing that if the election is delayed the parties will re-open the stipulation to reconsider whether the original Excelsior list or a new Excelsior list based on more current rolls should be used when the postponed election is rescheduled.