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.
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!!!