By Karen Morris
The importance of punctuality!
A union, the International Association of Machinists and Aerospace Workers, sought to represent workers at the Bronx Lobster Place, a lobster and seafood supplier, in Bronx NY. A campaign promoting the union occurred. Such efforts culminate in a vote by employees to determine their interest in union representation. Majority vote determines the outcome. Voting is overseen by an employee of the National Labor Relations Board (NLRB), a federal agency with its headquarters in Washington DC and 26 offices across the United States. It enforces the right of private sector employees to determine if they wish to belong to a union, and enforces laws prohibiting unfair labor practices committed by private sector employers and unions.
After the voting, any party can file objections to the process by which the union campaign was conducted or the vote occurred. The objecting party must provide proof in support of the objections within 7 days of the vote count. The Regional Director (an official in charge of a regional office) rules on the objection and the losing party can appeal to the NLRB in Washington, DC. If no objections are made, a union that receives a majority of the votes cast is certified as the winner and thus entitled to be recognized by the employer as the exclusive bargaining agent for contract negotiations on behalf of the employees in the unit.
Members of the NLRB are nominated by the President to a five-year term and must be approved by the Senate. The board has five members and acts as a quasi-judicial body in deciding cases on appeal. Often a case is referred to a panel of three board members who decide the case rather than the full board. However all five will likely determine cases involving new issues or cases in which a precedent may change.
The election result at the Bronx Lobster Place was a narrow win for the union by a vote of 14-12. The NLRB representative opened the polls seven minutes late. At least four eligible voters did not vote. Their votes could have impacted the outcome of the election. The employer filed objections based on the late start. The Regional Director mandated that a hearing be held. Two employees of the employer , including the employer’s designed election observer, testified at the hearing that they were present in the polling area during the 7-minute delay and no employees were waiting to vote during that time. Also, no evidence was presented that any employees complained that they attempted to vote during the seven minutes in question.
The hearing officer recommended to the Regional Director that the employer’s objection based on the timing of the opening of the polls be disregarded and the voting outcome remain in tact. The Regional Director of the NLRB adopted this recommendation. The employer then filed a request for review (an administrative process similar to an appeal). The matter was referred to a three-member panel. That panel, voting 2-1, reversed the Regional Director, vacated (voided) the election results, and ordered a new election. The Board determined the relevant rule was this: “When election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.” If the number could in fact affect the outcome, a new vote must be taken.
If you were the hearing officer, would you have vacated the election result or upheld it? Why?
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