In a recent blog post (here), we discussed the Board decision changing the rule concerning captive audience speeches in mail-ballot elections by setting the prohibition (on such speeches) to start 24 hours before the Region is scheduled to mail the ballots, rather than from the date and time the mail ballots are to be mailed. This decision means that employers now have one less day to hold campaign-related meetings with their employees. In Premier Utility Services, LLC, 363 NLRB No. 159 (April 5, 2016) (decision), the Board has given employers yet another reason to try to avoid mail ballot elections. In that case, the Regional Director refused to count 48 ballots that were postmarked before the voting period ended. Instead, the union was certified as the bargaining representative based on only 34 votes out of 101 eligible voters.

The employer, a utility company with five boroughs throughout New York City and Long Island, had approximately 101 eligible voters who lived and worked in the five boroughs. As a result, the parties held a mail ballot, which was conducted from October 20 to November 4, 2015. November 5, 2015 was set as the date to tally the votes. However, as of November 5, the Region had only received 4 ballots out of the 101. Due to this extremely low number of ballots, the employer and the union agreed to postpone the tally for one week or until November 12. This was a deviation from the NLRB’s normal procedures. By November 12, the Region received 34 valid ballots—still a low number of ballots for a unit of 101. Later, the Region received an additional 55 valid ballots, including 48 ballots that had been postmarked before November 4, which had been the last day of the original voting period. The Regional Director refused to count these ballots because they had been received after November 12. In response, the employer filed objections to the election by which the employer sought to have those 55 ballots counted. The Regional Director overruled the employer’s objections and the employer requested review of the Regional Director’s decision.

The Board (Chairman Pearce and Member Hirozawa) denied the employer’s request for review stating that there were “no substantial issues warranting review.” The Board apparently had no issue with certifying a union as the bargaining representative of 101 employees by only counting the ballots of about a third of the unit, when an additional 55 employees—more than half of the entire bargaining unit—had voted but not had their ballots counted.

Member Miscimarra dissented. He noted that while the Board will usually not count mail ballots received after the count, there are times when the Board’s normal rules “must be balanced against our statutory responsibility to assure that employees have been reasonably permitted to freely exercise their rights under the Act.” Member Miscimarra further noted that here, the Regional Director had already deviated from the Board’s normal processes by moving the count day by a week. Thus, there was no reason why another deviation couldn’t have been granted.

Again, the takeaway for employers is to try to avoid a mail ballot election.