European Imports, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 2017

365 NLRB No. 41 (N.L.R.B. 2017)

365 NLRB No. 41
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
European Imports, Inc. and Teamsters Local 703,
Petitioner. Case 13–RC–192428
February 23, 2017
ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The Employer’s “Emergency Request for Review”
seeking to reschedule the election scheduled for February
23, 2017, is denied.1 Following the election, the Em-
ployer remains free to file an objection challenging the
Regional Director’s decision.
Dated, Washington, D.C. February 23, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting.
This case gives rise to the concerns expressed in my
dissenting views regarding the Board’s Election Rule.1
Specifically, this case illustrates the downside associated
with the Rule’s “preoccupation with speed between peti-
tion-filing and the election.”2 The Election Rule adopts a
single-minded standard regarding what date should be
selected when Regional Directors schedule an election:
every election must be scheduled for “the earliest date
practicable. . . .”3
Here, the election date set by the Regional Director—
pursuant to the Election Rule’s mandate—only gave
three days’ notice to a substantial number of employees
that they would be voters in a union-representation elec-

1 We have treated the Employer’s “Emergency Request for Review”
as a request for extraordinary relief asking expedited consideration of
its request for review under Sec. 102.67(j)(1)(i) of the Board’s Rules
and Regulations.
1 79 Fed. Reg. 74308 at 74430–74460 (December 15, 2014) (dis-
senting views of Members Miscimarra and Johnson).
2 Id. at 74436.
3 Election Rule Sec. 102.67(b), 79 Fed. Reg. at 74485 (“The region-
al director shall schedule the election for the earliest date practicable
consistent with these rules.”).
tion. For the reasons that former Member Johnson and I
stated in the Election Rule’s dissenting views, I believe
the time frame adopted in this case unduly prejudices the
parties and extinguishes the employees’ right to have a
reasonable period of time to become familiar with elec-
tion issues.4 This abbreviated time frame, as to a sub-
stantial portion of the bargaining unit, also curtailed the
right of all parties to engage in protected speech. Ac-
cordingly, I respectfully dissent from the majority’s de-
nial of the Employer’s emergency request for review and
to have the election postponed from February 23, 2017,
to March 1, 2017.
The representation petition in this case was filed on
Friday afternoon, February 3, 2017.5 The petition de-
scribed the bargaining unit as including “[a]ll full time
and regular part time Forklift Drivers, Order Selectors,
and Dock Workers employed by the employer at its facil-
ity located at 600 East Brook Drive, Arlington Heights,
IL 6005 [sic].” The petitioned-for unit excluded “[a]ll
maintenance employees, janitorial employees, supervi-
sors, managers, office clerical and guards as defined by
the Act.”
Consistent with the timetable prescribed in the Elec-
tion Rule, the Region on February 3 sent a notice requir-
ing the Employer to post an election notice by Tuesday,
February 7. The notice required the Employer to prepare
and submit a written statement of position by noon on
Friday, February 10; and to appear at a hearing on Mon-
day, February 13. The Employer’s statement of position
raised an objection that the Board’s Election Rule de-
prived the Employer of due process and caused unfair
“prejudice to the Employer.” The statement of position
also identified 52 employees that the parties had agreed

4 As explained in the dissenting views that former Member Johnson
and I expressed in the Election Rule, the legislative history of the Na-
tional Labor Relations Act reflects substantial concern about ensuring
that employees be afforded a reasonable period prior to any election to
become familiar with election issues and to permit parties to engage in
protected speech. When evaluating Landrum-Griffin Act amendments
to the NLRA, then-Senator John F. Kennedy—who chaired the Confer-
ence Committee—repeatedly stated that at least 30 days were required
before an election to “safeguard against rushing employees into an
election where they are unfamiliar with the issues.” 105 Cong. Rec.
5361 (1959), reprinted in 2 LMRDA Hist. 1024. Again, Senator Ken-
nedy stated that “there should be at least a 30-day interval between the
request for an election and the holding of the election,” and he opposed
proposals that, in his words, failed to provide “at least 30 days in which
both parties can present their viewpoints.” 105 Cong. Rec. 5770
(1959), reprinted in 2 LMRDA Hist. 1085 (statement of Sen. Kennedy);
see also H.R. Rep. 86–741, at 25 (1959), reprinted in 1 LMRDA Hist.
783 (minimum 30-day pre-election period was designed to “guard[]
against ‘quickie’ elections”). See Election Rule, 79 Fed. Reg. at
74437-74441 (dissenting views of Members Miscimarra and Johnson).
5 All dates are 2017 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
to include in the unit, including nine employees whose
classifications were not listed in the petition.
At the February 13 hearing, three events occurred that
are relevant to the request for review that is presently
before the Board.
First, the hearing officer advised the parties that the
Regional Director had directed him “not to take evi-
dence” regarding the Employer’s objections to the Elec-
tion Rule.
Second, the parties resolved a dispute regarding who
would be part of the bargaining unit by agreeing that, in
addition to other classifications specified in the petition,
the unit would include five “inventory control employ-
ees” and four “production employees,” and they agreed
that the unit would exclude four “warehouse clerks.”6
Third, the parties disagreed regarding the date to be se-
lected for the election. The Union argued for the election
to occur on February 23. The Employer argued for a
later date—March 1 or thereafter—on the basis that a
February 23 election date would deprive many employ-
ees of sufficient notice that they would be voting in an
election that would dictate whether they would have un-
ion representation. Thus, at the February 13 hearing, the
Employer’s counsel opposed a February 23 election and
argued in part as follows:
The unit description [in] the petition was rather vague
and it was unclear as to whether certain significant
numbers of employees were included or excluded and,
in fact, it was really this morning that the parties for-
mally agreed upon the scope of the unit. So here we
are . . . and obviously if we get a direction of election
today, possibly tomorrow, it’ll be . . . within a week of
that election date that many of these employees will re-
ceive their first official notice that an election will be
conducted at all they’ll be participating in.7
The Employer’s counsel added:
[I]f the regional director compares . . . the petition itself
with the stipulation that the parties have entered into,
there are actually three groups of employees that were
not named as included or excluded in the original peti-
tion that are now resolved through the stipulation. That

6 At the hearing, the parties agreed to the following description of
the bargaining unit: “All full-time and regular part-time forklift drivers,
order selectors, checkers, receivers, loaders, inventory control employ-
ees and production room employees employed by the Employer at its
facility located at 600 East Brook Drive, Arlington Heights, Illinois
60005.” The original petition did not specifically identify the classifi-
cations of inventory control employees and production employees.
Including the 9 individuals employed in the classifications added by
stipulation at the hearing, the bargaining unit comprises 52 eligible
voters.
7 Hearing transcript, pp. 8–9 (emphasis added).
includes the inventory control department, which is five
employees, the production department, which is anoth-
er four employees, and also the warehouse clerks . . .
which is another four employees. So that's a group of at
least 13 people that . . . will not be officially notified
whether they're in or out until the official election no-
tice is posted in this matter which obviously hasn't hap-
pened yet, which is a substantial portion of this unit,
about 25 percent of it.8
On Thursday, February 16, the Regional Director is-
sued his Decision and Direction of Election (Decision).
The Decision stated that the Regional Director “declined
to permit litigation” of the Employer’s objections to the
Election Rule because the Board and the courts “have
already considered and rejected such arguments.” Deci-
sion, p. 2 (citing University of Southern California, 365
NLRB No. 11 (2016); Pulau Corp., 363 NLRB No. 8
(2015); Associated Builders & Contractors of Texas v.
NLRB, 826 F.3d 215 (5th Cir. 2016); Chamber of Com-
merce v. NLRB, 118 F. Supp. 3d 171 (D.D.C. 2015)).
Also, without further explanation, the Decision an-
nounced that the election would be held on Thursday,
February 23. Consistent with the Decision—and with
Section 102.67(k) of the Election Rule—this means the
final Board-approved Notice of Election would be posted
Monday, February 20, which would be merely three days
prior to the February 23 election.
On Friday, February 17, the Employer filed an Emer-
gency Request for Review of the Regional Director’s
Decision. Consistent with every other accelerated time-
table set forth in the Election Rule, this means the Board
itself has only six days (including the three-day Presi-
dents’ Day weekend) to adjudicate this matter and issue
its decision prior to the election.
In the circumstances presented here, I believe the
Board should grant the Employer’s Emergency Request
for Review, strike the February 23 election date, and
grant the Employer’s request that the election be con-
ducted on March 1, 2017.
Most important, I believe it is contrary to the Act for
the Board to set an election date that affords a substantial
number of unit employees only three days’ notice of a
representation election. The Act entrusts to the Board
the duty “to assure to employees the fullest freedom in
exercising the rights guaranteed by this Act.”9 The Re-
gional Director’s February 16 Decision, in reliance on
the Election Rule, has produced a situation where the

8 Hearing transcript, pp. 12–13 (emphasis added).
9 NLRA Sec. 9(b). Although Sec. 9(b) specifically addresses the
determination of appropriate bargaining units, the principle of assuring
employees “the fullest freedom” in exercising their rights under the Act
is surely pertinent here.
EUROPEAN IMPORTS, INC. 3
approved Notice of Election would afford only three
days’ notice to 9 unit employees—comprising roughly
17 percent of the eligible voters—that they would be
voting in a February 23 election the outcome of which
will decide whether they will be represented by a union.
I have been sharply critical of the Election Rule’s
“preoccupation with speed,”10 and I believe it continues
to be unreasonable for the Board not to establish any
concrete parameters regarding a reasonable time frame
for conducting representation elections. Thus, in our
dissenting views to the Election Rule, former Member
Johnson and I stated: “[W]e believe it is important that
the Board provide guidelines regarding reasonable mini-
mum and maximum times between the filing of a repre-
sentation petition and the holding of the election. The
majority continues to reject this suggestion, focusing
almost exclusively on their objection to the setting of a
minimum time.”11 Now, in the instant case, we see what
the lack of guidance in the Election Rule has wrought:
the Board majority is giving a substantial number of unit
employees a mere three days’ notice in advance of a rep-
resentation election.
Regardless of what other time frame might be deemed
permissible by the Board, three days’ notice of an elec-
tion is clearly insufficient.12 The situation presented in
the instant case illustrates the following concern that
former Member Johnson and I expressed in our dissent-
ing views to the Election Rule:
To state the obvious, when people participate in an
election, it is significant whether they actually have a
right to vote, whether their vote will be counted, and
whether the election’s outcome will even affect them.
In this respect, the Final Rule’s approach would be in-
tolerable in every other voting context, whether it in-
volved a national political election or high school class
president.13

10 Election Rule, 79 Fed. Reg. at 74436 (dissenting views of Mem-
bers Miscimarra and Johnson).
11 Election Rule, 79 Fed. Reg. at 74459 (dissenting views of Mem-
bers Miscimarra and Johnson) (emphasis added).
12 Even if the Regional Director’s February 16 Decision had been
instantly communicated to all eligible voters (which is not required
either by the Decision or the Election Rule), this would have afforded
only seven days’ notice to the 9 voters whose eligibility to vote was
approved only in the Regional Director’s Decision. I believe there is
no material difference between three days’ notice and seven days’
notice: both are plainly insufficient, considering the abundant legisla-
tive history that clearly indicates Congress contemplated at least 30
days’ notice prior to any election and disapproved of shorter
timeframes and “quicky” elections. See Election Rule, 79 Fed. Reg. at
74437-74441 (dissenting views of Members Miscimarra and Johnson).
13 Election Rule, 79 Fed. Reg. at 74438 (dissenting views of Mem-
bers Miscimarra and Johnson). Equally relevant here is the following
I also believe the unfairness associated with having a
February 23 election date is exacerbated by the Regional
Director’s refusal to permit the Employer to create a rec-
ord regarding problems associated with the Election
Rule’s application in this case.
Under Section 9(c)(1) of the Act, whenever a represen-
tation petition has been filed, the Board shall investigate
and, if there is a question concerning representation, it
“shall provide for an appropriate hearing upon due no-
tice.”14 Given these dual statutory requirements, the
Employer was entitled to make a record regarding actual
prejudice allegedly being caused in this case based on
the procedures set forth in the Election Rule. By pre-
venting the Employer from introducing such evidence,
the Board and any court of appeals have also been pre-
vented from passing on any prejudice or denial of due
process caused by the Election’s Rule’s application here,
because substantive rulings by the Board and the court
must be based on record evidence—i.e., evidence admit-
ted in an “appropriate” hearing.15
Significantly, the Employer at the hearing argued that
the application of the Election Rule “deprive[d] the Em-
ployer of due process and unfairly prejudice[d] the Em-
ployer in this proceeding.”16 This claim is materially
different from the issue presented in the small number of

observation that Member Johnson and I expressed in our Election Rule
dissenting views:
The Final Rule’s emphasis on speed stands in marked contrast to all of
the other contexts in which Congress, courts, and Federal agencies
have emphasized the need to guarantee more time, not less, when in-
dividuals are expected to exercise free choice about representation and
other significant matters in a group setting. A substantial universe of
laws, regulations, and legal decisions specifically address the time
needed for people to review and understand important issues before
casting a vote or signing on the dotted line. All of these have one thing
in common: They require more time, not less. Against the backdrop of
these examples, we have difficulty believing that Federal labor law
works in reverse. The thrust of the Final Rule— unintended or not—is
that employees make better choices when they vote first, and under-
stand later. Congress and other state and Federal regulators have re-
jected such reasoning. Given that the Board’s primary responsibility is
to safeguard employee free choice, especially in elections, the Final
Rule in this fundamental respect is deficient.
79 Fed. Reg. at 74436 (footnote omitted; emphasis added).
14 Sec. 9(c)(1) (emphasis added).
15 There is no question that the Hearing Officer and Regional Direc-
tor ruled that the Employer could not litigate or introduce evidence
regarding prejudice and the denial of due process caused by the Board’s
representation-election procedures. See hearing transcript, pp. 7, 13
(“The regional director has directed that there are no issues to be liti-
gated in this proceeding. . . . I’ve been directed not to take evidence on
the agency’s R case rules.”); Decision, p. 2 fn. 2 (“Based on the Em-
ployer’s offer of proof regarding its objections to the Board’s Final
[Election] Rule . . . , I declined to permit litigation of this issue at the
hearing because the Board and courts have already considered and
rejected such arguments.”).
16 Hearing transcript, p. 8 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Board and court cases that have denied challenges to “the
facial validity of the [Election] Rule.” See Decision, p. 2
fn. 2 (quoting University of Southern California, 365
NLRB No. 11, slip op. at 1 fn. 1 (emphasis added)).
Therefore, I believe it is not correct that “the Board and
courts have already considered and rejected” the same
challenges raised by the Employer in this case based on
the application of the Election Rule. Id. Rather, each of
the cases relied upon in the Regional Director’s Decision
dealt only with challenges to the Election Rule’s “facial
validity.” See University of Southern California, 365
NLRB No. 11, slip op. at 1 fn. 1 (rejecting the employ-
er’s “challenge to the facial validity of the [Election]
Rule”); Pulau Corp., 363 NLRB No. 8, slip op. at 1 fn. 1
(adopting the Regional Director’s rationale that the
Board had already considered and rejected “arguments
concerning the facial validity of the . . . [election] rule”);
Associated Builders & Contractors of Texas v. NLRB,
826 F.3d at 218, 220, 229 (rejecting “facial challenge” to
the Election Rule and noting “the high burden faced by
the [employer] entities in this facial challenge”); Cham-
ber of Commerce v. NLRB, 118 F. Supp. 3d at 185-186
(rejecting U.S. Chamber’s “facial challenge to the discre-
tionary provisions of the Final Rule” and finding that any
“as-applied challenge” was not ripe for adjudication “un-
til the entire election process and subsequent Board re-
view has come to its conclusion”).
Indeed, although the Regional Director relies on Pulau
Corp., supra, the Board there ruled that the employer
waived its objections to the election date because it “did
not present [the] facts, or its argument based on them . . .
, to the Regional Director prior to the election, nor did it
propose a later date for the election.” 363 NLRB No. 8,
slip op. at 1 fn. 1. Contrary to Pulau, the Employer here
did attempt to introduce evidence regarding relevant
“facts,” and “argument” based on them, “to the Regional
Director prior to the election,” and the Employer also
proposed a “later date for the election.” Id. Therefore, I
believe it was clear error and an abuse of discretion for
the Employer to be denied the opportunity to litigate
these issues.
In conclusion, the Board and the courts have not ad-
dressed the claims raised by the Employer, which allege
actual prejudice and the denial of due process in this
particular case. By precluding the Employer from intro-
ducing any evidence regarding such prejudice or the de-
nial of due process, these claims were effectively extin-
guished, and the absence of any record evidence deprives
the Board and any reviewing court from even consider-
ing such claims. In short, putting aside whatever other
harm the Employer might prove, the Employer has al-
ready been unfairly prejudiced and denied due process
based on the refusal to permit litigation of these issues at
the hearing. I believe the Employer has also been unfair-
ly prejudiced by the erroneous conclusion that the Em-
ployer’s arguments here have already been rejected, as a
matter of law, in cases limited to challenges to the Elec-
tion Rule’s facial validity.
For the above reasons, I respectfully dissent from the
majority’s denial of the Employer’s emergency request
for review and the Employer’s request to have the Febru-
ary 23, 2017 election date postponed to March 1, 2017.
Dated, Washington, D.C. February 23, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD