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NLRB Sets Aside Election Because Employer Failed to Serve Voter List on Union
Practical Law Legal Update w-004-9407 (Approx. 5 pages)
NLRB Sets Aside Election Because Employer Failed to Serve Voter List on Union
by Practical Law Labor & Employment
| Published on 13 Dec 2016 • USA (National/Federal) |
In URS Federal Services, Inc., the National Labor Relations Board (NLRB) held that an employer's failure to serve a union with a voter list before an election warranted setting aside the election and remanding the case for a new election.
On December 8, 2016, in URS Federal Services, Inc., the panel (Board) heading the NLRB's judicial and election functions held in a 2-1 decision that an employer serving a union with a list of eligible voters before an election is a mandatory requirement under the Board's amended election rules, and that the employer's failure to serve the voter list warrants setting aside the election. The employer filed the voter list with the NLRB regional office, which provided it to the union, but the employer never served the list on the union. (365 N.L.R.B. No. 1 (Dec. 8, 2016).)
Background
On March 3, 2016, URS entered into a Stipulated Election Agreement with the International Association of Machinists and Aerospace Workers (the union) providing for a representation election to be held on March 15, 2016. On Saturday, March 5, 2016, URS filed a list of eligible voters (voter list) with the NLRB regional office. On Monday, March 7, 2016, the regional office forwarded the list to the union. URS did not serve the list on the union. In the election held on March 15, 2016, the union did not receive a majority of the votes.
The union timely filed objections to the election, including an objection that URS failed to serve the union with the voter list as required by Section 102.62(d) of the NLRB's Rules and Regulations. The acting regional director overruled all of the union's objections. The union filed with the Board a request for review only on the objection about URS's failure to serve the voter list.
Outcome
A majority of the Board (Chairman Pearce and Member McFerran):
- Reversed the acting regional director's overruling of the union's objection to URS's failure to serve the voter list.
- Held that:
- timely serving the union with a list of eligible voters as required by Section 102.62(d) of the Board's Rules and Regulations is a mandatory requirement; and
- an employer's failure to comply with this new requirement under the election rules warrants setting aside the election and having a new election.
- Set aside the election and remanded the matter to the regional office for a second election.
The Board majority noted that:
- Section 102.62(d) of the Board’s Rules and Regulations, as amended, provides that an employer, before a representation election "shall provide to the regional director and the parties . . . a list of the full names [and other information] of all eligible voters."
- Section 102.62(d) also provides that:
- the employer must file with the regional director a certificate of service showing that it served the voter list on the union and all parties; and
- failure to file or serve the list "shall be grounds for setting aside the election whenever proper and timely objections are filed."
- The amended Section 102.62(d) was intended to eliminate an earlier two-step process under which the:
- employer would file the list with the regional director; and
- regional director would, in turn, forward the list to the other parties.
- The Board thought the earlier process caused:
- delay; and
- unnecessary litigation.
- The amended rule was based in part on the Board trying to avoid circumstances like the one in this case, where the voter list is filed with the regional office after business hours on Friday and the regional office does not forward the list to the union until Monday.
The Board majority addressed the dissent, stating that:
- Although the amended Board Rules and Regulations give regional directors "substantial discretion" in representation cases, including discretion to interpret Stipulated Election Agreements, regional directors do not have discretion to excuse parties from complying with the voter list requirement.
- Section 102.62(d) contains clear language that the employer is required to serve the voter list to other parties.
- The Stipulated Election Agreement itself stated that URS was required to provide the voter list to the regional director and all other parties within two business days. This did not mean that the union only had to receive the list within two days for the employer to be compliant with the rule, as the dissent contends.
- The majority did not create a double standard under a recent Board decision where a union failed to comply with the service requirement for a statement of position under Section 102.66(d), but the regional director had discretion to consider evidence regarding a contract bar defense that was raised in the untimely served statement of position (see Brunswick Bowling Products, LLC, 364 N.L.R.B. No. 96, at slip op. 2 (Aug. 25, 2016)). The amended rules were intended to create bright-line provisions with clear consequences for a party's failure to comply. While Section 102.66(d) grants regional directors discretion to receive evidence needed to resolve certain pre-election conflicts, Section 102.62(d) does not allow discretion for the regional director regarding the voter list service requirement.
Member Miscimarra dissented, noting that:
- The majority's decision violates a decades-old principle that the Board does not "lightly set aside" Board elections and instead preserves their finality (The Liberal Market, Inc., 108 N.L.R.B. 1481 (1954); Delta Brands, Inc., 344 N.L.R.B. 252, 253 (2005)).
- The Board has upheld elections even where fraud or other reprehensible conduct was involved, something not at issue in this case, as long as there is no clear or convincing evidence that the results do not reflect the voters' will (see Newport News Shipbuilding, 239 N.L.R.B. 82 (1978); Antioch Rock & Ready Mix, 327 N.L.R.B. 1091 (1999)).
- URS's failure to serve the voter list was a "purely technical violation" that the regional office timely cured when it provided the list to the union within the time specified by Section 102.62(d).
- The Board disregarded one of its primary functions (certifying election results) merely because the voter list was "received by everyone at the right time but, in one instance, from the wrong party."
- The majority's decision contradicted Brunswick Bowling, in which the Board unanimously upheld a regional director's ruling in favor of a union that failed to comply with a mandatory service requirement for statements of position (364 N.L.R.B. No. 96, slip op. at 3). In Member Miscimmara's view:
- Brunswick Bowling properly put "substance over form"; and
- the Board should apply election rules' compliance standards consistently, regardless of whether the noncomplying party is a union (as in Brunswick Bowling) or an employer (as in the instant case).
Practical Implications
The Board's decision in URS Federal Services sends a message that employers must strictly comply with procedural elements of the Board's amended election rules. This decision specifically applies to service of voter lists under Section 102.62(d) of the Board's Rules and Regulations, but the Board is likely to require the same strict adherence to other procedural requirements, particularly rules that do not expressly provide for regional director discretion (as in Brunswick Bowling). For more information about the amended election rules, see Understanding Amendments to the NLRB Union Election Process Checklist.