The NLRB is down to three members, the bare minimum required to conduct business, and so cases are being issued somewhat sporadically.

The so-called ambush election rules have received a lot attention over the last few years.  We recently discussed here a case where the NLRB found that a union had not timely filed a position statement on an issue as required by the new rules.  The NLRB held that the rules prohibited the receipt of the position statement but nonetheless found that the Regional Director had discretion to consider the issue,–to the benefit of the union that failed to follow the rules.

In a recent case the NLRB found that an employer’s failure to timely serve a voter eligibility list pursuant to the rules required the overturning of an election where the union lost,–even though the union had received the list in a timely fashion.

In URS Federal Services, Inc., 365 NLRB No. 1 (December 8, 2016), the employer and union entered into a stipulated election agreement to hold a representation election at the employer.  The election agreement required the employer to submit a voter eligibility list within two business days of approval of the agreement.  The election agreement was approved on a Thursday, so the list would be due on the following Monday.  The employer filed the list with the Region on Saturday, two days before it was due.  On Monday, the Region forwarded the list to the union, which was approximately 8 days before the election.  The employer did not serve the union with the list.

The union lost the election (although we are not told by how much), and it filed an objection to the election based on the fact the employer had not served the list on the union.  The Regional Director did not find the employer’s failure to serve the list problematic because under the election agreement the Region was required to forward the list to the union, which it did. So the union had the information required under the rules in a timely fashion.

The union appealed.  A two member majority of the NLRB (Miscimarra dissenting) found that the new election rules required them to overturn the election, and so the majority reversed the Regional Director and sent the case back for a new election.

The Board reviewed the election rules:

Section 102.62(d) of the Board’s Rules and Regulations, as amended, expressly requires that the employer in a representation case ‘shall provide to the regional director and the parties . .a list of the full names…[and other information] of all eligible voters. . .Finally, Section 102.62(d) provides that an employer’s failure to file or serve the list ‘shall be grounds for setting aside the election whenever proper and timely objections are filed.’ Id., emphasis added.

The Board held the rules were amended in this fashion because “the Board deliberately sought to eliminate the prior two-step procedure –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.”

The Board distinguished its prior ruling in Brunswick Bowling Products LLC, 364 NLRB No. 96 (August 25, 2016), where it held that the rules prohibited the Regional Director from accepting an untimely filed position statement but could nevertheless consider the issue because the rule in question there, 102.66(b) expressly granted such discretion.

The Regional Director had ruled that the union could not be prejudiced because it had the information required by the rules in a timely fashion, meaning there was no impact on the election.   The Board majority stated, “we need not address the Acting Regional Director’s reasoning on this account…The Board in 102.62(d) has articulated a prophylactic rule concerning voter list service that obviates the need for Regional Directors to delve into a showing of prejudice in order for elections to be set aside.”  In other words, the rule is so bright line that it requires the Regional Director to ignore whether there is any possibility the union was actually prejudiced in conducting the election.  There was no possibility of prejudice to the union in this case.

Member Miscimarra dissented citing numerous reasons why the Board majority was wrong.  In particular, Miscimarra pointed out:

[I]n this case, the [union] received the voter list  on time, and the only deviation from the Election Rule was that the list was transmitted to the Petitioner by the Region rather than the Employer.

Member Miscimarra interpreted Brunswick differently than the majority, stating:

With all due respect to the majority, their attempt to draw a distinction between these two cases does not withstand scrutiny.  In Brunswick Bowling, the Board concluded that the Regional Director properly exercised her discretion to find merit in a contract-bar defense, even thought the union’s Statement of Position was not timely served. Notwithstanding this defect, the Regional Director inBrunswick Bowling concluded–and the Board unanimously agreed–that noncompliance with the service requirement should not prevent the Board from appropriately addressing an outcome determinative election issue.

For rules that were passed with the intention of eliminating litigation, it seems this goal has not been met.  The Board’s rules require the party filing an unfair labor practice charge to serve the charge on the opposing party, and this almost never happens because the Board serves the charge during the investigation.  No party ever claims the charge cannot move forward.

The requirement that the union have access to the voter eligibility list in a timely fashion has been the law for many years prior to the passage of the ambush election rules.  The union received the same exact list from the Region it should have also received from the employer, but didn’t.  It is troubling that such a technical issue as whether a document was served, which under these circumstances could not have had any impact on the election, could result in granting the losing party (a rule which could only apply to a union loss) a brand new election.  This case reminds one of the Board’s rule of overturning elections due to the presence of a handbook violation, another instance where not a single employee could have been impacted by the issue.