URS Federal Services, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 2016

365 NLRB No. 1 (N.L.R.B. 2016)

365 NLRB No. 1
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.
URS Federal Services, Inc. and International Associa-
tion of Machinists and Aerospace Workers, Dis-
trict Lodge 725, AFL–CIO, Petitioner. Case 20–
RC–170461
December 8, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The issue presented in this case is whether the Acting
Regional Director properly overruled Petitioner’s Objec-
tion 1, which alleged that the Employer failed to serve
the voter list on the Petitioner, as required in Section
102.62(d) of the National Labor Relations Board’s Rules
and Regulations, as amended.
Pursuant to a Stipulated Election Agreement, an elec-
tion was held on March 15, 2016,1 in which the Petition-
er did not receive a majority of the votes cast. The Peti-
tioner thereafter filed timely objections. On June 10, the
Acting Regional Director issued a Report Regarding Ob-
jections2 to Election and Certification of Results, overrul-
ing all of the Petitioner’s objections. Thereafter, in ac-
cordance with Section 102.67 of the Rules and Regula-
tions, the Petitioner filed a timely request for review only
with respect to Objection 1. The Employer has not filed
an opposition to the request.
The request for review is hereby granted as it raises a
substantial issue warranting review. On review, for the
reasons stated below, we reverse the Acting Regional
Director’s overruling of Objection 1, set aside the elec-
tion, and remand the case for a second election.
The relevant facts are not in dispute. The parties en-
tered into a Stipulated Election Agreement on Thursday,
March 3. The Employer filed the voter list with the Re-
gion on Saturday, March 5, within 2 business days of the
approval of the parties’ election agreement, as required
by the Board’s Rules and as memorialized in the agree-
ment. The Region then forwarded the list to the Petition-
er on Monday, March 7, 8 days before the scheduled
election. However, the Employer never served the list on
the Petitioner, as further required by the Board’s Rules
and the parties’ agreement, and has not offered any ex-
planation for failing to do so.3

1 All dates hereinafter are in 2016.
2 We have treated the Acting Regional Director’s “Report Regarding
Objections” as a Decision on Objections. See 79 Fed. Reg. 74412 fn.
464 (Dec. 15, 2014).
3 The Employer also failed to file a certificate of service.
Section 102.62(d) of the Board’s Rules and Regula-
tions, as amended, expressly requires that the employer
in a representation case “shall provide to the regional
director and the parties . . . a list of the full names . . .
[and other information] of all eligible voters” (emphasis
added). Section 102.62(d) further requires the employer
to file with the regional director a certificate of service
indicating that the voter list was served on all parties.
Finally, Section 102.62(d) provides that an employer’s
failure to file or serve the list “shall be grounds for set-
ting aside the election whenever proper and timely objec-
tions are filed.” Id., emphasis added.
In adopting this service requirement during its recent
rulemaking on representation case procedures, the Board
deliberately sought to eliminate the prior two-step pro-
cess—under which the employer would file the list with
the regional director, who would then forward the list to
the other parties—because it had caused delay and un-
necessary litigation. See 79 Fed. Reg. 74356 (Dec. 15,
2014). Moreover, the Board noted comments complain-
ing of circumstances similar to those presented here,
where “employers filed the list with the regional office
after business hours on a Friday, and the regional office
subsequently does not forward the list to the petitioner
until the following Monday.” Id.4
In overruling Petitioner’s Objection 1, the Acting Re-
gional Director acknowledged that Section 102.62(d)
requires that the employer serve the list on the other par-
ties, and that the employer’s failure to do so constitutes
grounds for setting the election aside when timely objec-
tions are filed. Nevertheless, the Acting Regional Direc-
tor excused the Employer’s failure to serve the list, based
on the Region’s provision of the list to the Petitioner
within 2 business days (the timeframe provided for in the
parties’ Stipulated Election Agreement). As set forth
above, however, the Acting Regional Director’s ap-
proach conflicts with the clear language and purpose of
the new service requirement.
As the Rules plainly state, service of the voter list is
mandatory, and the failure to serve it will result in setting
aside the election, if (as here) a proper and timely objec-

4 The Employer was clearly and repeatedly notified of the require-
ment to directly serve the voter list on the Petitioner. The service re-
quirement, and consequences of noncompliance, were explained in the
“Description of Representation Case Procedures in Certification and
Decertification Cases,” served on the Employer simultaneously with a
copy of the petition. The requirement was revisited in the Regional
Director’s opening letter to the Employer accompanying the Notice of
Hearing. And it was memorialized in the Stipulated Election Agree-
ment signed by the parties. In short, the Employer could not reasonably
claim ignorance of the requirement that it serve the voter list on the
Petitioner, and as noted, the Employer has not offered any explanation
for its failure to comply with the Board’s Rules.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion is filed. Section 102.62(d) does not allow regional
directors discretion to excuse such a failure. Cf. Ara-
mark Uniform & Career Apparel, LLC, 364 NLRB No.
120 (2016) (objections properly overruled due to the ob-
jecting party’s failure to follow the relevant filing and
service requirements of Section 102.69(a)). Similarly, in
Brunswick Bowling Products, LLC, 364 NLRB No. 96,
slip op. at 2 (2016), the Board held that the regional di-
rector erred by receiving into evidence the union’s state-
ment of position that was untimely served on the other
parties, with no explanation for its late service.
Our dissenting colleague would excuse the Employer’s
lack of service here based in part on his contention that
the amended Rules grant “substantial discretion” to re-
gional directors in representation cases, including discre-
tion to “interpret” the terms of a stipulated election
agreement. As just explained, however, the clear lan-
guage of Section 102.62(d) does not afford regional di-
rectors the discretion to excuse parties from complying
with the voter-list service requirement, and it is therefore
irrelevant that some other provisions of the Board’s
Rules and Regulations afford discretion to regional direc-
tors in other areas. In addition, given the clear language
of Section 102.62(d), the parties’ Stipulated Election
Agreement in this case—stating that “the Employer must
provide [the voter list] to the Regional Director and all of
the other parties” within 2 business days—cannot rea-
sonably be interpreted to mean only that the Petitioner
should “receive” the list within 2 days, as our colleague
mistakenly contends.5
Finally, we reject our dissenting colleague’s misplaced
accusations that we are setting aside the election lightly
and creating a “double standard” under Brunswick Bowl-
ing in order to favor the union in this case.6 In enacting
the amended Rules, the Board deliberately created cer-
tain new bright-line provisions and consequences for
noncompliance. These provisions include the service
requirements for the voter list in 102.62(d) and for the
statement of position in 102.66(b) and (d). Our holding
in Brunswick Bowling, supra, slip op. at 2, creates no
double standard because there we expressly found that

5 The Stipulated Election Agreement also clearly includes the re-
quirement that, when feasible, the list must be “served electronically on
the parties” and that the Respondent “must file with the Regional Di-
rector a certificate of service of the list on the parties.” Moreover, the
first provision of the agreement headed “Procedural Matters” includes
that the case will be “governed by the Board’s Rules and Regulations”
which, as discussed above, make clear the consequences of failing to
serve the list. Thus, there can be no argument that the parties stipulated
to avoiding the service requirements in 102.62(d).
6 See, e.g., Aramark, supra (overruling a union’s election objections
where it failed to follow the relevant filing and service requirements of
Amended Sec. 102.69(a) without explanation).
“the Regional Director erred by receiving into evidence
the Union’s statement of position and by not precluding
the Union from raising the contract bar issue.” We
thereby applied the consequences for statement of posi-
tion service failure specified in 102.66(d), just as we are
now applying the consequences for voter list service fail-
ure specified in 102.62(d). Although Brunswick Bowling
went on to state that the regional director could neverthe-
less consider the contract bar issue, this was because Sec-
tion 102.66(b) expressly grants regional directors discre-
tion to receive evidence necessary to resolve certain pre-
election issues. Id., slip op. at 2–3.7 By contrast, there is
no analogous provision allowing discretion with respect
to the service requirement in Section 102.62(d). In short,
we expect regional directors to enforce these service re-
quirements—whether an employer or union has failed to
meet—so that all parties take their obligations seriously
under the amended Rules. To allow parties to ignore the
service requirements set forth in Section 102.62(d) with-
out any explanation or excuse would undermine the pur-
pose of those provisions.
Accordingly, we reverse the Acting Regional Direc-
tor’s overruling of Petitioner’s Objection 1, set aside the
election, and remand the case for a second election.8

7 Furthermore, as we explained in Brunswick Bowling, the peculiar
circumstances of that case justifying the Regional Director reaching the
contract bar issue despite the Union’s hearing preclusion included: the
petitioner raising the contract bar issue on the face of the petition; the
Regional Director obtaining a prehearing copy of the contract; and the
Petitioner and the Employer stipulating to the existence of the contract
before the opening of the hearing. Id., slip op. at 3. Our colleague
cannot reasonably ignore these issues and claim inconsistency in our
decisions by attempting to elevate his concurrence in Brunswick Bowl-
ing to the majority holding.
8 In addition to considering Objection 1, the Acting Regional Direc-
tor went on to find (in effect) that the Petitioner was not prejudiced by
receiving the voter list from the Region only 8 days before the election,
rather than the 10-day minimum period required by the Board (absent
waiver). See Ridgewood Country Club, 357 NLRB 2247, 2247 (2012);
Mod Interiors, Inc., 324 NLRB 164, 164 (1997). As we have sustained
Objection 1, we need not address the Acting Regional Director’s rea-
soning on this count. The Board in Sec. 102.62(d) has articulated a
prophylactic rule concerning voter list service that obviates the need for
Regional Directors to delve into a showing of prejudice in order for the
elections to be set aside.
URS FEDERAL SERVICES, INC. 3
Dated, Washington, D.C. December 8, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
The Election Rule1 requires an employer, within 2
business days of the approval of a Stipulated Election
Agreement, to provide a list of eligible voters—
commonly referred to as an “Excelsior list”—to both the
Region and the other party or parties. Here, the Employ-
er provided the voter list in a timely fashion to the Re-
gion, which promptly forwarded the list to the Petitioner;
and the Petitioner’s receipt of the voter list was also
timely. However, the Employer did not serve the voter
list on the Petitioner as required by the Election Rule.
The Petitioner lost the election, 91 to 54, and now seeks
to overturn the election because the Employer failed to
serve the voter list on the Petitioner, even though the
Petitioner timely received it.
The Acting Regional Director overruled the Petition-
er’s objection, reasoning that “[a]lthough the Employer
deviated from the Rules by failing to serve the list on
Petitioner, the Region’s timely provision of the list to
Petitioner effectively satisfied the Board’s requirement
that Petitioner receive the voter list within 2 business
days of approval of the Agreement. To hold otherwise
would exalt form over substance.” Looking to prece-
dent—which was not repudiated by the Election Rule—
the Regional Director further concluded that a technical
failure to comply with the Election Rule’s service re-
quirements did not frustrate the purpose of the Excelsior
rule.2

1 See 79 Fed. Reg. 74308 (Dec. 15, 2014) (Election Rule). Former
Member Johnson and I dissented from the Election Rule, and I adhere
to the views expressed in our dissent. See id. at 74430–74460 (dissent-
ing views of Members Miscimarra and Johnson).
2 The Election Rule’s voter list requirements codified and refined
longstanding principles governing the Employer’s transmittal of a list
of eligible voters, which were established by the Board in Excelsior
Underwear, Inc., 156 NLRB 1236 (1966). As the Acting Regional
Director observed in his decision, the fundamental purpose of the Ex-
celsior rule is to ensure that employees are provided a “full opportunity
to be informed of the arguments concerning representation.” Bon Ap-
petit Management Co., 334 NLRB 1042, 1043 (2001). Because the
My colleagues reject the Regional Director’s decision,
finding that the failure to fully comply with the Election
Rule requires overturning an otherwise valid election,
regardless of the effect (or lack thereof) such non-
compliance had on the election. I dissent for three rea-
sons. First, the Board has long held that elections should
not be lightly set aside, a principle the majority does not
address (other than to deny, without explanation, that
their decision is at odds with it). Second, the Election
Rule affords regional directors broad discretion in many
areas, and the Regional Director’s decision here falls
well within this zone of discretion. Finally, the majori-
ty’s decision appears to be in conflict with the Board’s
recent unanimous decision in Brunswick Bowling Prod-
ucts, LLC, 364 NLRB No. 96 (2016), where the Board
unanimously upheld a regional director’s determination
in favor of a union notwithstanding its failure to effectu-
ate timely service under the Election Rule.
1. The Majority Lightly Sets Aside the Election, Con-
trary to Decades-Old Case Law. For more than 60 years,
the Board has sought to preserve the finality of Board
elections by consistently repeating that representation
elections will not be lightly set aside. In its seminal deci-
sion in this area, The Liberal Market, Inc., 108 NLRB
1481 (1954), the Board explained why elections should
not be overturned merely because the circumstances sur-
rounding them might be less than ideal:
We seek to establish ideal conditions insofar as possi-
ble, but we appreciate the actual facts in light of realis-
tic standards of human conduct. It follows that elec-
tions must be appraised realistically and practically,
and should not be judged against theoretically ideal, but
nevertheless artificial, standards. In this connection, we
note that a realistic appraisal of the effect of antecedent
conduct upon a Board election must, of course, be con-
cerned with particular acts and their effect upon those
of the voters who are directly involved; it must also be
concerned, however, with the overall picture of how
the totality of the conduct affects not only the voters di-
rectly involved, but any others who may or may not be
indirectly affected because they are within the voting
unit. In some cases, a nice balancing of these consider-
ations may be required. Basically, we feel that the re-
sults of a secret ballot, conducted under Government
sponsorship and with all the safeguards which have
been developed throughout the years, should not be
lightly set aside. Like any other contest in which the
stakes are high, the losing party is likely to protest the
result, but this Board cannot be influenced by any sub-

Petitioner was in possession of the list of eligible voters on the date
prescribed by the Election Rule, this purpose was fulfilled here.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jective considerations. Our job is to make reasonably
certain that the election reflected the true sentiments of
the voters. An evenhanded application of an objective
test is the best protection against arbitrary administra-
tive action.3
The Board strongly prefers that elections “not be lightly set
aside,” particularly where the result of the election is likely
to reflect “the true sentiments of the voters.” Id. Moreover,
overturning an election that reflects the voters’ will and
compelling the region to conduct a rerun election needlessly
necessitates the expenditure of additional Board resources.
Therefore, to honor election finality and avoid unnecessary
repeat elections, the Board looks to “all of the facts and cir-
cumstances to determine whether the atmosphere” sur-
rounding the election “was so tainted as to warrant the set-
ting aside of the election.” Delta Brands, Inc., 344 NLRB
252, 253 (2005).
On its better days, the Board has practiced what Liber-
al Market preaches, declining to overturn elections de-
spite evidence of wrongdoing where the Board finds that
such wrongdoing was unlikely to have tainted the out-
come of the election. For example, in Newport News
Shipbuilding, 239 NLRB 82 (1978), enf. denied 594 F.2d
8 (4th Cir. 1979), the Board upheld the validity of an
election involving nearly 20,000 eligible voters despite
the regional director’s finding of potential voter fraud.
Consistent with the employer’s claim, the regional direc-
tor’s investigation showed that there was a “discrepancy
between the overall number of names checked off by the
observers and the overall number of ballots cast in the
election.” Id. at 84. Additionally, the regional director
found that one employee had voted twice (although the
second ballot was cast subject to challenge), and the
Board agents present during the election had not fol-
lowed the procedure agreed upon by the parties for
checking the identities of voters. Id. at 85, 88. Although
the Board acknowledged that the election was not “error
free,” it nevertheless determined that given the scope of
the election, the isolated nature of the objectionable inci-
dents, and the 1500-vote margin by which it was decid-
ed, the election results were valid since the “free choice
of these voters was not thwarted.” Id. at 90.
Another example is Antioch Rock & Ready Mix, 327
NLRB 1091 (1999), where the Board likewise reaffirmed
the importance of upholding elections that reflect the will
of the voters even where clearly reprehensible conduct
occurred. Antioch involved simultaneous election cam-
paigns in two different bargaining units, a “drivers” unit
and a “mechanics” unit. The Board overturned the re-
sults of the election in the drivers unit because a union

3 Id. at 1482 (emphasis added).
adherent had made death threats to other drivers. Never-
theless, the Board decided that even death threats did not
warrant overturning the election in the mechanics unit
because there was no evidence that the mechanics were
aware of the threats. Id. at 1092.
In short, as illustrated by Newport News Shipbuilding
and Antioch, the Board takes the results of secret-ballot
representation elections seriously and will decline to
overturn those results unless presented with clear evi-
dence that the results may not reflect the will of the vot-
ers. See also Quest International, 338 NLRB 856 (2003)
(alleged voter intimidation by posting a security guard
accompanied by a Rottweiler at the entrance to the em-
ployer’s facility in the run-up to the election and adding a
second guard the day of the election did not reasonably
interfere with employee free choice); Delta Brands, su-
pra (mere maintenance of an overbroad no-solicitation
rule does not warrant setting aside the election).
The election objection presented in this case lacks the
drama of Newport News Shipbuilding and Antioch. The
Petitioner does not allege widespread voter fraud or
death threats. Rather, the Board must determine whether
a purely technical violation of a service requirement,
timely cured by the Region, warrants overturning elec-
tion results that overwhelmingly disfavored the Petition-
er. The pertinent portion of the Election Rule, Section
102.62(d), requires that a voter list be provided to both
the regional director and the parties named in the agree-
ment within 2 business days of the regional director’s
approval of the Stipulated Election Agreement. The Re-
gional Director approved the Stipulated Election Agree-
ment on Thursday, March 3, 2016. The Employer filed
the voter list with the Region on Saturday, March 5, and
the Region sent the voter list to the Petitioner on Mon-
day, March 7. Thus, it is undisputed that (i) the Employ-
er timely filed the list with the Region, and (ii) the Peti-
tioner received the list on the second business day after
the date the Regional Director approved the Agreement.
Yet the majority overturns the election results in this
case, merely because the Petitioner received the list of
eligible voters from the Region instead of the Employer.
Given the Petitioner’s actual receipt of the voter list
within the time specified by the Election Rule, I agree
with the Regional Director that there is no valid reason to
overturn the results of the election. Contrary to well-
established Board law, the majority is choosing to “light-
ly set aside” the election. To state the proposition differ-
ently, my colleagues have decided that when the Region
and the petitioner have timely received the voter eligibil-
ity list, and when employees have overwhelmingly voted
against the petitioner in a secret-ballot election, the
Board should disregard one of the Agency’s primary
URS FEDERAL SERVICES, INC. 5
statutory functions—to certify the results of the elec-
tion4—if the voter eligibility list was received by every-
one at the right time but, in one instance, from the wrong
party. As the Regional Director aptly stated, overturning
the election for this reason “exalt[s] form over sub-
stance.”5
2. Overturning the Election Improperly Fails to Defer
to Discretion Properly Exercised by the Acting Regional
Director. In concluding that the Employer’s service er-
ror did not frustrate the purpose of the Election Rule, the
Acting Regional Director appropriately exercised the
discretion provided him by the Election Rule itself. The
Election Rule grants regional directors substantial discre-
tion in representation cases. A regional director conducts
an investigation and then determines whether a question
concerning representation exists and whether to direct a
hearing regarding that question. Section 102.63(a). A
regional director then controls the content of the hearing,
identifying for hearing officers which matters should be
litigated. Section 102.66(c). Once a hearing is complete,
a regional director determines whether additional argu-
ment on brief will be allowed. Section 102.66(h). These
provisions amply illustrate the broad discretion given to
regional directors throughout the Rule in connection with
representation elections. More specific to this case, a
regional director also has the authority to approve stipu-
lated election agreements like the one that governed the
election here. Section 102.62(b). Inherent in approval of
such an election agreement is the ability to interpret the
agreement approved, consistent with the Election Rule
and its purpose. Here, as the Rule requires, the Employ-
er provided the Regional Director with the voter list, and
the Petitioner received the list within 2 business days
after the approval of the Agreement. See Sec. 102.62(d)
(“[T]he employer shall provide” the voter list within 2
business days, and the list must be received by the parties
within that time “[i]n order to be timely filed and
served.”).6 Although the Employer’s service was incom-
plete, the Employer’s actions nevertheless gave effect to
the purpose of the Rule and the Agreement, as it is un-
disputed that the Petitioner received the voter list within

4 Sec. 9(c)(1)(B) (instructing the Board, if it finds following a hear-
ing that a question concerning representation exists, to “direct an elec-
tion by secret ballot and . . . certify the results thereof”).
5 Contrary to my colleagues’ suggestion, I do not “interpret” Sec.
102.62(d) to state that the petitioner must “receive” the voter list by a
stated date. I recognize that Sec. 102.62(d) says what it says. I simply
agree with the Acting Regional Director that under the circumstances
presented here, applying the letter of Sec. 102.62(d) elevates form over
substance and sacrifices common sense on the altar of rigid devotion to
a rule.
6 Sec. 102.62(d) does not address the Regional Director’s discretion
or lack thereof to address service irregularities and therefore cannot be
said to curtail it.
the 2 business days the Election Rule and the Agreement
required. Under these circumstances, I would uphold the
Acting Regional Director’s exercise of discretion and
overrule the Petitioner’s objection.
3. Overturning the Election Creates a Double Stand-
ard, Contrary to the Board’s Recent Unanimous Deci-
sion in Brunswick Bowling. The majority’s decision
here is at odds with a diametrically opposite result
reached by a unanimous Board in Brunswick Bowling,
supra. In contrast to the instant case, where an employer
failed to satisfy a service requirement mandated by the
Election Rule, in Brunswick Bowling the union failed to
satisfy the Election Rule’s service requirement, and the
Board upheld the regional director’s ruling in favor of
the noncomplying union.7 I was part of the unanimous
Board panel that decided Brunswick Bowling, and I ex-
plained the outcome in that case as follows:
It is most important in election cases that Regional Di-
rectors apply their expertise when investigating, con-
sidering, and resolving all relevant election issues. It is
equally important, of course, for the Board’s resolution
to turn on relevant facts and the proper application of
legal principles. Although the Election Rule can be
read to state otherwise, the Board in today’s decision
rightly places substance over form. We uphold the Re-
gional Director’s decision to reach and decide an out-
come-determinative issue, even though the party in
whose favor the Regional Director ruled failed to time-
ly serve its Statement of Position in conformity with the
Election Rule.8
Obviously, the Board should not decide election issues
differently when the noncomplying party happens to be
an employer (which is the case here) rather than a union
(which was the case in Brunswick Bowling). Indeed, the
Election Rule properly emphasizes that the same compli-

7 Brunswick Bowling involved the application of Section 102.66(d)
of the Election Rule, which precludes a party from raising any issue
that it failed to raise in a timely Statement of Position. In Brunswick
Bowling, the union timely served its Statement of Position on the Re-
gion, but it neglected to timely serve its Statement of Position on the
employer. Under perfectly clear language of the Election Rule, the
union was supposed to be precluded from litigating a “contract bar”
defense that was identified only in the Statement of Position. Despite
this clear violation of the Rule, the Regional Director considered and
ruled for the noncomplying union, dismissing the decertification peti-
tion on contract-bar grounds. A unanimous Board upheld the Regional
Director’s decision, finding that the regional director properly exercised
her discretion to investigate and resolve relevant issues. 364 NLRB
No. 96, slip op. at 3.
8 Id., slip op. at 3 (Member Miscimarra, concurring in part and dis-
senting in part) (emphasis added).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance standards should apply regardless of whether the
noncomplying party is an employer or a union.9
The Employer here, like the union in Brunswick Bowl-
ing, timely filed with the Region, but did not timely serve
on the other party. Justice would seem to require con-
gruent results. Indeed, one would expect the Board to
apply greater leniency in the instant case than in Bruns-
wick Bowling, for two reasons.
First, in this case, the Petitioner received the voter list
on time, and the only deviation from the Election Rule
was that the list was transmitted to the Petitioner by the
Region rather than the Employer. Cf. General Motors
Corp., 237 NLRB 1509, 1517 fn. 11 (1978) (timely ser-
vice of charge is not rendered deficient by the fact that
service was effectuated by the region rather than the
charging party); General Marine Transport Corp., 238
NLRB 1372, 1375–1376 (1978) (same). By comparison,
in Brunswick Bowling, the noncomplying union transmit-
ted its Statement of Position to the employer 3 hours late,
contrary to the Election Rule’s strict requirement that all
parties receive the Statement of Position no later than
noon on the business day preceding the hearing.10
Second, the Board for decades has required only “sub-
stantial compliance” with the Excelsior list requirements
and has tolerated deviations from those requirements so
long as they do not interfere with employees’ “full op-
portunity to be informed of the arguments concerning
representation, ‘by giving unions the right of access to
employees that employers already have, thus enabling
employees to hear not just the employer’s views, but also
the union’s arguments in support of unionization.’”11

9 For example, regarding the Statement of Position requirements ap-
plicable to nonpetitioning parties, the Election Rule states: “The State-
ments of Position to be completed by labor organizations [when they
are nonpetitioning parties] . . . are similar to the Statements of Position
that employers must complete [when they are nonpetitioning par-
ties]. . . . [T]he important point is that the final rule treats nonpetition-
ing employers the same as nonpetitioning labor organizations.” 79 Fed.
Reg. at 74425 fn. 519 (emphasis added). The Election Rule is equally
explicit when discussing the preclusion principle that ostensibly applies
when a nonpetitioning party fails to comply with the Statement of Posi-
tion requirements:
The preclusion provisions do not just apply . . . where the employer
is the nonpetitioner and must complete the Statement of Position form.
Rather, . . . the preclusion provisions apply in all cases, without distinc-
tion, including . . . [cases] where the individual or labor organization .
. . is the nonpetitioner and is responsible for completing a Statement of
Position form.
Id. at 74400 (emphasis added).
10 See Board’s Rules and Regulations Sec. 102.63(b)(3).
11 Bon Appetit Management Co., supra, 334 NLRB at 1043 (quoting
Special Citizens Futures Unlimited, Inc., 331 NLRB 160 (2000)); see
also, e.g., Washington Fruit & Produce Co., 343 NLRB 1215, 1222
(2004) (overruling objection where 28 percent of the addresses on the
Excelsior list were incorrect); Women in Crisis Counseling, 312 NLRB
589 (1993) (overruling objection where 30 percent of the addresses on
There is no such history of leniency regarding the State-
ment of Position requirements established in the Election
Rule, which articulated an inflexible preclusion principle
stating that noncompliance will preclude noncomplying
parties “from litigating issues as to which they have
failed to take positions required . . . as part of [the]
Statement of Position.”12 Again, in spite of the Election
Rule’s inflexible preclusion principle, and despite the
union’s failure to provide timely service of its Statement
of Position in Brunswick Bowling, the Board unanimous-
ly upheld the Regional Director’s exercise of discretion
that resulted in a ruling in the noncomplying union’s
favor.13
My final disagreement with the majority relates to
their claim that I ignore the “peculiar circumstances” of
Brunswick Bowling. My colleagues contend that “pecu-
liar circumstances” in Brunswick Bowling justified the
outcome in that case, and they suggest that the absence
of such circumstances warrants a different result here.14
With all due respect to the majority, their attempt to draw
a distinction between these two cases does not withstand

the Excelsior list were incorrect); Texas Christian University, 220
NLRB 396, 397–398 (1975) (overruling objection where 18 percent of
the addresses on the Excelsior list were incorrect and 3 percent of eligi-
ble voters’ names were omitted); Telonic Instruments, 173 NLRB 588,
588–589 (1968) (overruling objection where names of 4 eligible voters
were omitted from the Excelsior list); Program Aids Co., Inc., 163
NLRB 145 (1967) (overruling objection where employer filed Excelsi-
or list 4 days late).
12 79 Fed. Reg. at 74394. See also id. (“[T]he requirements of the
Statement of Position and responses, permitting identification of the
issues in dispute, together with the preclusion of evidence of issues not
timely raised, substantially improves the Board’s procedures by saving
the parties and the Board the time and expense of wasteful litigation.”);
id. at 74361, 74363 (The Statement of Position has a “binding nature,”
and there are “consequences [for] failing to complete it.”); id. at 74399
(preclusion appropriate even where relevant issues are omitted inad-
vertently).
13 The Board has a longstanding practice of refraining from taking
action inconsistent with existing precedent unless three Board members
support overruling it. I believe Brunswick Bowling establishes a prece-
dent that my colleagues do not persuasively distinguish, nor can fewer
than three members properly overrule it.
14 My colleagues attempt to equate the outcome in Brunswick Bowl-
ing and the outcome in this case by saying that just as there are “conse-
quences” here for the Employer’s service error, there were “conse-
quences” in Brunswick Bowling for the union’s failure to timely serve
the Statement of Position—namely, the union was precluded from
raising the contract-bar issue. However, that so-called consequence
was inconsequential, since the Regional Director dismissed the petition
on contract-bar grounds anyway, and the Board upheld her decision.
Here, by contrast, the consequence of the Employer’s service error is
that a lopsided election is set aside, even though the service error could
not have affected the election results because the Union received the
voter list on the same day it would have received the list had no service
error been committed. Equating the result in Brunswick Bowling with
the result in this case on the basis that there were “consequences” for
noncompliance in both cases is singularly unconvincing.
URS FEDERAL SERVICES, INC. 7
scrutiny. In Brunswick Bowling, the Board concluded
that the Regional Director properly exercised her discre-
tion to find merit in a contract-bar defense, even though
the union’s Statement of Position raising the defense was
not timely served. Notwithstanding this defect, the Re-
gional Director in Brunswick Bowling concluded—and
the Board unanimously agreed—that noncompliance
with the service requirement should not prevent the
Board from appropriately addressing an outcome-
determinative election issue. Likewise, the Acting Re-
gional Director here reasonably concluded that technical
noncompliance with a service requirement (pertaining to
a voter list that the Union timely received anyway)
should not cause the Board to overturn the election itself.
The Board should uphold both decisions.
CONCLUSION
My colleagues here reach a result at odds with Bruns-
wick Bowling, a unanimous Board decision issued a mere
3 months ago. My colleagues also abandon a corner-
stone principle that has well served employees, unions
and employers alike—that the “the results of a secret
ballot, conducted under Government sponsorship and
with all the safeguards which have been developed
throughout the years, should not be lightly set aside.”
The Liberal Market, 108 NLRB at 1482. There is not a
scintilla of evidence that the Union’s timely receipt of
the voter list from the Region, rather than from the Em-
ployer, affected the results of the election. To the contra-
ry, because the Union was in possession of the voter list
for the same number of days as would have been the case
had the Employer timely served the list on the Union, the
Employer’s service error had no impact whatsoever on
achievement of the purpose of the Excelsior rule: to en-
sure that employees have “full opportunity to be in-
formed of the arguments concerning representation.”
Bon Appetit Management Co., supra, 334 NLRB at 1043.
Under these circumstances, I would uphold the results of
the election.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. December 8, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD