A Rare But Important Employer Victory With the NLRB

By Eric B. Meyer

On April 29, 2011, a unanimous three-member panel (including Member Hayes) of the NLRB agreed to set aside the results of an elections that the Service Employees International Union lost by a 131-82 vote.

According to the BNA Daily Labor Report, although the National Labor Relations Board agreed to overturn the election, it declined the opportunity to explore a policy shift to allow union elections at neutral sites — as opposed to the employer’s premises, where union elections are generally held:

SEIU and Local 509 had urged the board not only to order a second election at MHA but also to order that the election be held at a neutral location away from MHA’s premises and outside the employer’s control. SEIU requested permission to file an amicus brief in the case, arguing that rather than following its current policy of favoring elections on an employer’s premises, “the Board should instead presume that balloting must occur at a neutral site, outside of either party’s control, absent contrary agreement.”

Local 509 advanced an alternative argument that even if the board did not adopt a presumption that all elections should be held at a neutral location, it should require off-site balloting in any rerun of an election overturned due to election-day misconduct. NLRB Member Craig Becker recused himself from considering the case on the ground that as a former employee of SEIU, he represented a party in the case. The remaining board members rejected the union’s arguments for establishing a new rule concerning election sites.

Liebman and Pearce wrote that the case before the board “illustrates some of the shortcomings of the Board’s current practices regarding the siting of elections,” but they said they were “not prepared at this time … to deviate from the Board’s current practice of leaving the determination of the appropriate method and location for initial and rerun elections to the discretion of the Regional Director.”

Given this Board’s predictably pro-union decisions, a rundown of which you can find over at one of my favorite blogs, Labor Relations Today, it comes as a surprise that the Board didn’t at least allow briefs concerning whether to have elections at neutral locations.

Article Continues Below

You can view a copy of the NLRB’s decision here.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


Leave a Comment

Your email address will not be published. Required fields are marked *