Nlra Case Notes

• Jurisdiction: United States,Federal
• Citation: Vol. 31 No. 2
• Publication year: 2017
• Author: By Jeffrey S. Bosley and Colin D. Wells
• topic: Administrative Law,Labor Law,Civil Procedure

NLRA Case Notes

By Jeffrey S. Bosley and Colin D. Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Overturns Election Due to Employer's Failure to Serve Union With Eligible-Voter List

URS Federal Services, Inc., 365 NLRB No. 1 (Dec. 8, 2016)

In a 2-1 decision, the National Labor Relations Board (Board) held that an employer's failure to serve the eligible voter list directly on the union within two business days after approval of an election stipulation was sufficient to overturn the results of an election. In so holding, the majority found that a Regional Director does not have the discretion to excuse a party's failure to comply with the election rule requiring the service of eligible-voter lists, also known as Excelsior lists, within two business days of a stipulated election agreement. Chairman Pearce and Member McFerran wrote for the majority; Member Miscimarra dissented.

The decision arose from an election involving a construction contractor and a union trying to organize laborers, forklift operators, and production control clerks working for the contractor. After the parties' stipulated election agreement was approved, the employer timely served the Excelsior list on the Regional Director as required under the Board's election rules. Although the employer did not serve the Excelsior list on the union as required under the rules, the Regional Director forwarded the list to the union on the second business day after approval. The union subsequently lost the election by a large margin, and the union objected to the outcome based on the employer's failure to send the Excelsior list directly to the union. The Regional Director considered the totality of the circumstances, including the margin of defeat, and overruled the objections and affirmed the election results.

On appeal, the Board reversed the Regional Director, holding that the express language of the rules makes timely service of the Excelsior list by the employer on the union mandatory. "[T]he clear language of [the rules] does not afford Regional Directors the discretion to excuse parties from complying with the voter-list service requirement." The majority reasoned that "[i]n adopting this service requirement during its recent rulemaking on representation case procedures, the Board deliberately sought to eliminate the prior two-step process—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."

Member Miscimarra dissented, accusing the majority of "lightly setting aside" an otherwise valid election based on a technical violation of the rules, which was contrary to decades-old Board case law. He also argued that established Board precedent allows Regional Directors broad discretion in administering elections, which was appropriately exercised by the Regional Director in this case. Finally, Member Miscimarra opined that the majority's decision creates an inherent double standard, as it is contrary to a recent...