In 2015 the NLRB pushed through the Ambush Election Rules to boost union organizing success principally by shortening the period between a union’s request for an election and the election itself and by making it more difficult for an employer to raise important, substantive legal issues prior to the election. Also among these rule changes were certain procedural requirements. One of these nit-picky rules was that the employer serve both the NLRB and all other parties to the case, i.e. the union, with a copy of the official voter eligibility list sufficiently in advance of the election.
In URS Federal Services, Inc., a union sought to represent a group of the employer’s employees. Those employees rejected union representation by a nearly 2-1 margin. But following defeat, the union filed an objection with the NLRB arguing that the election should be set aside and a second vote held because the employer did not send a copy of the voter eligibility list to the union like the rule required. Instead, the NLRB sent the list to the union (as previously required). In the end, the union received what it was entitled to receive on the day it was entitled to receive it.
At first, the NLRB Regional Director rejected the union’s claim that the union was disadvantaged from receiving the voter eligibility list from the NLRB as “exalting form over substance.” On appeal, though, Members Pearce and McFerran unsurprisingly overruled that decision and found in favor of the union, set aside the election and ordered a new election.
Member Miscimarra, thankfully (albeit ceremoniously) blasted the majority decision, accusing the majority of lightly setting aside unequivocal election results as well as creating a double standard under a Board decision issued just a few months earlier in which the Pearce and McFerran ruled in favor of a union, even though the union similarly failed to comply with a technical requirement of the election rules.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com