January 29, 2022

Volume XII, Number 29

Advertisement
Advertisement

January 28, 2022

Subscribe to Latest Legal News and Analysis

January 27, 2022

Subscribe to Latest Legal News and Analysis

January 26, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

NLRB Chooses Form Over Function Re: Eligibility of Certain Union Members to Vote

In a 2 to 1 decision issued on August 15, 2014, the National Labor Relations Board (NLRB) refused to count 23 challenged ballots of employees not on the eligibility list in an election that the union won 21 to 20. The 23 employees were not on the eligibility list because each of those employees was hired during the 8-month period between the initially agreed upon eligibility date of March 8, 2013 (for an agreed-upon election date of  April 16, 2013), and the date the election was actually held November 19, 2013.  The delay in the election was due to charges filed by the union and ultimately settled with the employer. Importantly, the employer in the case failed to raise questions or concerns about the eligibility list prior to the election or to file timely file objections after the election, instead waiting until after the deadline to file objections to complain about voter disenfranchisement.

The dissenting Board member argued that the unusual circumstances caused by the delayed election (more challenged ballots than the votes cast either for or against the union) should result in either the challenged ballots being counted or, preferably in his view, a new eligibility date being agreed to and a new election being run. The majority, however, found that “that countervailing factors, which protect the overall process, will sometimes outweigh the value of enfranchising each and every employee.”

While the outcome of this case can be seen as just another mark in the current NLRB’s pro-union ledger, it serves as a stark reminder that employers must strictly comply with the NLRB’s case handling rules and regulations if they do not wish to give the unions another leg-up.

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume IV, Number 232
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Steve Hernandez, Barnes Thornburg Law Firm, Los Angeles, Labor and Employment Law Attorney
Partner

Steve L. Hernández is a partner in the Los Angeles office of Barnes & Thornburg. A member of the firm’s Labor and Employment Law Department, Mr. Hernández focuses his practice on traditional labor and employment law. Mr. Hernández has extensive experience litigating class action matters.

Mr. Hernández also brings four years of experience as an attorney with Region 21 of the National Labor Relations Board (NLRB) to his practice. While at the NLRB, Mr. Hernández investigated unfair labor practice, litigated unfair labor practice complaints,...

310-284-3775
Advertisement
Advertisement
Advertisement