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Appeals Court Finds Error in the Counting of a Disputed Vote in a Union’s Favor

By:  R. Eddie Wayland, TCA General Counsel

The federal court of appeals for the Seventh Circuit recently ruled that the National Labor Relations Board (“NLRB”) erred in counting a disputed vote in the union’s favor during a union-representation election. The case provides an interesting look at the law surrounding the counting of disputed votes in union representation elections.

Background

The logistics company provided public-refrigerated warehousing and transportation services in the Midwest. In February 2016, the union filed a petition to be the exclusive collective-bargaining representative for a subset of the logistics company’s employees. The subset specifically included warehousemen, dockworkers, pickers, runners, team leads, inventory workers and maintenance workers employed by the logistics company at one facility in Indiana.

The union and the logistics company conducted the election under a stipulated election agreement. The notice of election provided that a simple majority of the valid ballots cast would determine the results of the election. The ballot had one question on it: “Do you wish to be represented for purposes of collective bargaining by International Brotherhood of Teamsters Union Local 142?” The ballots simply instructed the voting employee to “mark an ‘X’ in either the “Yes” square or the “No” square on the ballot.

Thirty-seven votes were cast in the election; eighteen votes were cast in favor of union representation and seventeen against the union. The remaining two votes were disputed. One ballot, cast by an unknown employee, was challenged by the employer who argued that the voter’s intent was unclear. In the square under “Yes” on the ballot, the unknown employee appeared to mark an “X” but also had crossed or scribbled through the “X.” The “No” square was blank. It was unclear whether or not the voter was attempting to cross-out the “X.”. The second ballot was disputed because there was a question as to whether the voter was indeed an employee of the logistics company at the time of the vote.

Since the two disputed votes could determine the outcome of the election the NLRB’s Regional Director ordered the employer and the union to present arguments as to whether the votes were valid. The Regional Director found in favor of union on the issue of the first ballot regarding whether the unknown voter had had selected “Yes” or “No” finding that the voter had intended to select the “Yes” option. Given that this decision caused the remaining disputed employee ballot to no longer be outcome determinative, the Regional Director did not rule on the issue of the second employee ballot.

Following the Regional Director’s decision, the logistics company refused to recognize and bargain with the union because it believed the Regional Director had incorrectly decided the issue. The union subsequently filed a charge with the NLRB alleging that the logistics company “ha[d] failed to bargain in good faith with the Union.” As a result, the Regional Director filed a complaint against the logistics company claiming violation of the National Labor Relations Act (“NLRA”) for refusal to recognize and bargain with the union. The NLRB eventually issued an order affirming that the union was the exclusive collective-bargaining representative for the subset of employees and further holding that the logistic company’s refusal to bargain with the union constituted an unfair labor practice. Since the NLRB found that the logistics company had committed an unfair labor practice, the logistics company was therefore allowed to appeal the Board’s decision. It filed an appeal with the Seventh Circuit Court of Appeals.

Appeals Court Decision

The appeals court found that the Regional Director’s decision to count the ballot cast by the unknown employee voter as a “Yes” vote was incorrect and an abuse of discretion. That decision was based upon two points of law: first, the NLRB’s “longstanding policy” of attempting “to give effect to voter intent whenever possible”; second, a 1982 NLRB decision which provides that “a mark in only one box, despite some irregularity” presumptively constitutes “a clear indication of the intent of the voter.” Due to the fact that the unknown employee had arguably “crossed out” their “Yes” vote, the appeals court rejected this reasoning and found that the applied “presumption is ill-suited to deal with situations like these, where voter intent absolutely cannot be inferred from the marks on the ballot.” Because the appeals court believed it was impossible to discern the intent of the unknown employee voter, the court ruled the Regional Director should have declared the ballot void.

Given that the ballot of the unknown voter should have been declared void, the appeals court found that the other disputed ballot (which involved the question of whether the voter was an employee at the time of the vote) controlled the outcome of the election and was no longer moot. If the other disputed ballot was in the union’s favor, the result of the vote would be nineteen-seventeen in the union’s favor. If the other disputed ballot was in the logistic company’s favor, however, the result of the vote would be tied eighteen-eighteen in which case the logistics company would prevail (to win an election the union must obtain a majority of the valid ballots). Accordingly, the appeals court sent the case back for a determination concerning the other disputed ballot.

Takeaway

This case presents an example of how critical each vote can be in a union representation election. The case also provides a cautionary tale of what can happen when employees do not understand even the simplest of ballot instructions. Unless the employer wants its employee to be represented, in such union organizing situations it is important for the employer to mount a prompt, pro-active campaign. A company should, at minimum, focus on (1) educating the employees as to their rights in connection with election campaigns, including the voting and ballot process; (2) provide the employee with all of the facts and information, including the reasons why union representation may not be in their best interests; and (3) educate management and supervisors as to the legal standards that control such election campaign conduct, including what is permissible and what is not permissible. In this regard, because such election campaigns involve numerous issues and rules regarding associated conduct, employers faced with such a challenge, would be wise to seek counsel or other consultants who are experienced and knowledgeable in the area of labor law and union organizing campaigns and elections.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

August 1, 2017

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