Premier Utility Services, LLC, a wholly owned subsidiary of USIC Locating Services, LLC

National Labor Relations Board - Board DecisionsApr 5, 2016

363 NLRB No. 159 (N.L.R.B. 2016)

363 NLRB No. 159 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. Premier Utility Services, LLC a wholly owned subsid- iary of USIC Locating Services, LLC and Com- munications Workers of America, Local 1101, Petitioner. Cases 29–RC–159452 and 29–RC– 159545 April 5, 2016 ORDER DENYING REVIEW BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s request for review of the Regional Di- rector’s Supplemental Decision on Challenges and Ob- jections and notice of hearing is denied as it raises no substantial issues warranting review.1 Dated, Washington, D.C. April 5, 2016 ______________________________________ Mark Gaston Pearce, Chairman 1 The Employer’s request for a stay of the Certification of Repre- sentative is also denied. We share our dissenting colleague’s concern about the United States Postal Service’s late delivery of many mail ballots after the ballot count. However, we find that the Regional Director’s decision not to count the late-received ballots was fully consistent with Board prece- dent and policy, and did not constitute an abuse of discretion. The Board will generally permit mail ballots received after the due date, but before the count, to be opened and tallied. Watkins Construction Co., 332 NLRB 828, 828 (2000). See also NLRB Casehandling Manual (Part Two) Representation Proceedings, Sec. 11336.5(c). However, the Board customarily does not permit mail ballots received after the count to be opened. Classic Valet Parking, Inc., 363 NLRB No. 23 (2015). As explained in Classic Valet, the Board’s Rule, permitting mail ballots received after the due date but before the count to be opened, while excluding ballots received after the ballot count, already provides a grace period for late-arriving ballots and strikes an appropri- ate balance between the interests of effectuating employee choice and the substantial policy considerations favoring the finality of elections. Moreover, in this case, at the joint request of the parties, the Region postponed the ballot count by 1 week. Unlike our dissenting colleague, we do not find that the Regional Director erred by refusing to count ballots received after the additional grace period provided by the post- poned ballot count expired. Id., slip op. at 1 (“Absent [Board’s Rule], election results could well be delayed for significant periods of time as mail ballots trickle into the regional office.”). See also Versail Mfg., Inc., 212 NLRB 592, 593 (1974) (noting that “there are strong policy considerations favoring prompt completion of representation proceed- ings”). ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER MISCIMARRA, dissenting. I would grant review of the Regional Director’s deci- sion to overrule the Employer’s objection regarding the mail-ballot election in this case, in which the final tally counted only 34 votes out of 101 eligible voters. I be- lieve there is a substantial question regarding the failure to count 55 additional ballots, at least 48 of which were postmarked before the end of the voting period. It is true that, based on considerations that favor finality in NLRB elections, the Board usually will only count mail ballots received before votes are counted on the tally date, Kerr- ville Bus Co., 257 NLRB 176, 177 (1981), and the Board usually will not count mail ballots received thereafter, Classic Valet Parking, Inc., 363 NLRB No. 23 (2015). However, consistent with my dissent in Classic Valet Parking, I believe that “in an extremely unusual case . . . when our regular procedures have been deficient,” the Board’s normal rules must be balanced against our statu- tory responsibility to assure that employees have been reasonably permitted to freely exercise their rights under the Act. Id., slip op. at 2 (quoting Tekweld Solutions, Inc., 361 NLRB No.18, slip op. at 4 (2013) (Member Miscimarra, dissenting in part)). Cf. Sec. 9(b) (“The Board shall decide [the appropriate bargaining unit] in each case . . . in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.”). The Employer is a utility company that operates throughout the five boroughs of New York City and Long Island. There were approximately 101 eligible voters who live and work in these five boroughs. A mail-ballot election was conducted from October 20 to November 4, 2015. As of November 5, the original tally day, the Region had received just 4 ballots. The parties agreed to postpone the tally for 1 week to November 12. After the 1-week postponement—which itself deviated from the Board’s normal procedures—the Region still had received only 34 valid ballots,1 approximately one- third of the 101 eligible voters. Subsequently, the Re- gion received an additional 55 ballots, including 48 bal- lots that were postmarked before November 4, the last day of the original voting period. In other words, of the 82 ballots mailed during the original voting period, the 1 After the 1-week postponement, the tally as of November 12 was 20 votes for the Petitioner and 14 votes against representation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 majority of votes cast—48 ballots—are not even being counted. If these votes are counted, the outcome may still favor representation by the Petitioner. However, this will never be known unless the votes are counted. In my view, the Board’s normal mail-balloting proce- dures suffered an unacceptable breakdown here in spite of everyone’s reasonable efforts. Under our statute, questions concerning union representation are to be re- solved based on the principle of majority support.2 I recognize that the Board has no responsibility to ensure 2 See Sec. 9(a) (“Representatives designated or selected for the pur- poses of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representa- tives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.”) (Emphasis added.) votes are cast by each and every eligible voter. Howev- er, in the present circumstances, the rule favoring finality should give way in favor of allowing employees who reasonably attempted to exercise their rights under the Act to have a say in their representation. I would there- fore grant review, and I respectfully dissent from the majority’s failure to do so. Dated, Washington, D.C. April 5, 2016 ______________________________________ Philip A. Miscimarra, Member NATIONAL LABOR RELATIONS BOARD