iPremier Utility Services, LLC, a wholly owned subsidiary of USIC Locating Services, LLC (29-RC-159452 and 29-RC-159545; 363 NLRB No. 159) Hauppauge, NY, April 5, 2016.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Challenges and Objections and Notice of Hearing on the ground that it raised no substantial issues warranting review. The majority noted that, although they shared the dissent’s concern about the late delivery of many of the mail ballots, the Regional Director did not abuse his discretion in deciding not to count the ballots received after the ballot count. The majority found that the Regional Director’s decision was fully consistent with the Board’s established precedent permitting ballots received after the due date but before the count to be opened, while excluding ballots received after the ballot count.
Member Miscimarra, dissenting, would grant review of the Regional Director’s decision to exclude the late ballots. While agreeing that Board policy generally provides that ballots received after the count should not be opened, Member Miscimarra would find, consistent with his dissent in Classic Valet Parking, Inc., 363 NLRB No. 23 (2015), that “in an extremely unusual case . . . when our regular procedures have been deficient,” the Board’s normal rules must be balanced against the Board’s responsibility to assure that employees have been reasonably permitted to freely exercise their Section 7 rights. Here, strict application of the Board’s mail ballot rules results in 48 ballots that were postmarked before the end of the voting period—a majority of the 82 ballots mailed during the original voting period—not being counted.
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