In a perplexing – if not shocking – decision, the National Labor Relations Board determined that there is substantial difference between an employee having the opportunity to vote in a mail ballot election, and his or her vote in fact being counted.

In Premier Utility Services, LLC, the employer, a utility company with 101 employees living and working in New York City’s five boroughs, participated in a mail ballot election from October 20 to November 4, 2015 to determine whether Communications Workers of America, Local 1101 would represent the petitioned-for employees.  However, as of November 4, 2015, the NLRB Regional Office had received only four (!) ballots.  As a result, the parties postponed the tally of ballots until November 12, 2015, a somewhat usual departure from the NLRB’s usual election procedures.  By November 12, 2015, the NLRB only received 34 ballots out of the possible 101.  Nevertheless, the Region counted the ballots and the Union received a majority of the votes counted, 20-14.Mail

Following the count, the NLRB Regional office received an additional 55 ballots, including 48 ballots that were postmarked before November 4, the end of the original voting period.  The Regional Director, however, refused to count the 48 ballots that were postmarked before November 4 because they were received after November 12.  As a result, the union was certified as the bargaining representative based on only 34 votes out of 101 eligible voters, even though a large number of additional ballots had been timely mailed!!!

Unsurprisingly, the employer filed objections to the Regional Director’s decision not to count the late-arriving ballots, as they could have affected the outcome of the election, but the objections were overruled. The employer then filed a request for review with the Board. A Board majority (Chairman Pearce and Member Hirozawa), however, denied the employer’s request for review and upheld the Regional Director’s decision.  Although the majority expressed “concern about the United States Postal Service’s late delivery of many, many ballots after the count,” it nonetheless stubbornly held that the Board “customarily does not permit mail ballots received after the count to be opened.”

Member Miscimarra (the voice of sanity) dissented, expressing concern that when the Board’s procedures are deficient, its “normal rules must be balanced against [the Board’s] statutory responsibility to assure that employees have been reasonably permitted to freely exercise their rights under the Act.”

The majority’s holding is in direct tension with employees’ Section 7 right to freely elect a bargaining representative of their choosing.  Perhaps the Board should practice what it preaches!