Late Start for Union Election Results in Rerun Election with Very Different Results

February 15, 2018

By: Tyler T. Hendry and Louis P. DiLorenzo

Early in February 2017, a group of drivers at the Bronx Lobster Place, a wholesale seafood distributor, voted 14-12 in favor of union representation, with one challenged ballot.  Shortly after the election, the Lobster Place retained Louis P. DiLorenzo and Tyler Hendry in Bond's New York City office.  About one year later, after the National Labor Relations Board sustained the Lobster Place's objections to the conduct of the election, a rerun election was held.  This time, the drivers voted 22-3 against unionization.

Background

During the election, the NLRB agent overseeing the election opened the polls seven minutes late.  Four eligible voters did not vote in the close election.  The Lobster Place filed objections to the election, asserting, among other things, that the late opening of the polls could have potentially disenfranchised these four eligible voters.  This potential disenfranchisement could have changed the outcome of the election, considering the union's slim 14-12 margin of victory.  The NLRB Regional Director overruled this objection on the basis that there was no proof that these four voters actually entered the voting area and attempted to vote during the period when the polls should have been open but were not.

The Lobster Place appealed the Regional Director's decision to the NLRB, contending that:  (1) established NLRB law does not require actual proof of disenfranchisement; and (2) the Regional Director's standard inappropriately required proof that a disenfranchised employee entered the voting area, without considering that an employee may have seen from outside the voting area that the polls were not open and may have not entered the voting area for this reason.

The NLRB's Decision

On February 2, 2018, a 2-1 NLRB majority (in a rare showing of bipartisanship, the majority opinion included one Democrat member, Lauren McFerran, and one Republican member, William Emmanuel, joining together), agreed with the Lobster Place.  The NLRB reaffirmed established NLRB law in cases where the polls are not open during their scheduled times, finding:

[T]he 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.

Therefore, because it was possible that the four voters may have been disenfranchised by the late opening of the polls, and the number of potentially disenfranchised voters was sufficient to change the outcome of the election, the NLRB ordered a rerun election.

The decision reinforces one of many clear rules that ensure the reliability and predictability of NLRB-conducted elections (e.g., service of voter lists, notice of election posting requirements, etc.) and avoids the need for hearings and specific evidence from employees regarding why they did or did not vote.  This rule is particularly appropriate as the NLRA prohibits employers from interrogating employees regarding their vote or decision not to vote, making it difficult, if not impossible, for an employer to discover and establish proof of actual disenfranchisement.

Rerun Election Results

On February 15, 2018, almost exactly one year after the original election, the NLRB conducted the rerun election.  This time, with all polling sessions running on time, the drivers voted overwhelmingly against unionization in a 22-3 vote, with one challenged ballot.