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NLRB Continues to Ask Whether Voters Were Potentially Disenfranchised When Polls Not Timely Opened

The National Labor Relations Board has reaffirmed it will apply a “potential-disenfranchisement” test, not an “actual-disenfranchisement” test, in determining whether employees were affected by a late opening of the polls at an NLRB-conducted election. Bronx Lobster Place LLC, Case 02-RC-191753 (Feb. 2, 2018) (unpublished).

The employer had lost the election 14-12; there was one challenged ballot. Four eligible voters did not vote. In the second of two voting sessions, the NLRB Agent assigned to supervise the election opened the polls seven minutes late. Since the number of eligible voters who did not vote (four) was more than the union’s margin of victory, the NLRB found that the number of voters potentially disenfranchised were thus enough to affect the election outcome. Consequently, sufficient basis existed for conducting a new election.

Rejecting Member Mark Gaston Pearce’s dissenting opinion, which advocated setting aside an election only where objective evidence showed a determinative number of eligible employees were actually prevented from voting because of the late opening of the polls, the NLRB followed the Board’s reasoning in Pea Ridge Iron Ore Co., 335 NLRB 161 (2001). In that case, the polls also were opened seven minutes late and a determinative number of employees did not cast ballots. According to the Board:

[w]hen election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

The NLRB’s decision underscores how closely the Board guards the integrity of the elections it conducts. Although the four eligible voters who did not cast ballots may have done so voluntarily, there was a possibility they tried to vote and could not because the polls were not open when they should have been. Therefore, the Board decided a new election had to be conducted.

Surprisingly, the pro-employer majority in this case was formed by an odd couple: NLRB Members William Emanuel, a Republican, and Lauren McFerran, a Democrat. Union-friendly Pearce, a Democrat, dissented. Could the decision be a sign of good NLRB times ahead for employers? Time will tell.

Jackson Lewis P.C. © 2019


About this Author

Jonathan A. Siegel, Labor, Employment Attorney, Jackson Lewis, Law Firm

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...