NCR Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2016 Decided November 1, 2016

No. 15-1230

NCR CORPORATION,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1248

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Howard M. Bloom argued the cause and filed the briefs for

petitioner.

Kyle A. deCant, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief was

Richard F. Griffin, Jr., General Counsel, John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel, and Robert J. Englehart, Supervisory

Attorney.

Before: ROGERS and TATEL, Circuit Judges, and EDWARDS,

2

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: NCR Corporation (“NCR”)

petitions for review of the decision and order of the National

Labor Relations Board that it violated section 8(a)(5) and (1) of

the National Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(5)

& (1) (2012), when it refused to bargain with the Union after a

mail ballot election. NCR contends that the Board abused its

discretion by refusing to consider seven late-received ballots

because enforcement of its decision and order would result in

the disenfranchisement of an outcome-determinative number of

voters and negatively affect the integrity of the election,

requiring NCR to recognize and bargain with a unit that may not

represent a majority of employees who cast valid ballots. Board

precedent, NCR maintains, establishes that where an election

irregularity occurs resulting in possible disenfranchisement of

a determinative number of votes, the election should be set aside

and a re-run of the election conducted. NCR also contends that

the Board “improperly exalted declaring the final result of the

election over the Board policy to afford employees the broadest

participation in election proceedings.” Pet’r’s Br. 11-12. For

the following reasons, we deny the petition for review and grant

the Board’s cross-application for enforcement.

I.

The facts are undisputed. On June 9, 2014, the International

Brotherhood of Electrical Workers Local 2222 (“Union”) filed

a petition for Board certification as representative of certain

NCR employees. Thereafter, NCR and the Union signed a

Stipulated Election Agreement calling for a mail ballot election.

Paragraph 4 of the Agreement stated:

3

The election will be conducted by mail. . . . Voters

must return their mail ballots so that they will be

received in the National Labor Relations Board,

Region 01 office by close of business on August 4,

2014. . . . [Ballots] will be counted at the Region 01

office . . . at 10:00 AM on August 5, 2014.

On July 9, 2014, a Notice of Election was mailed to forty-one

employees whom NCR had determined were eligible to vote in

the election. The Notice added the bold-faced text:

The election will be conducted by mail. . . . Voters

must return their mail ballots so that they will be

received in the National Labor Relations Board,

Region 01 office by close of business on Monday,

August 4, 2014. . . . [Ballots] will be counted at the

Region 01 office . . . at 10:00 AM on Tuesday, August

5, 2014.

The ballots were mailed on July 21, 2014.

By close of business on August 4, 2014, twenty-eight

ballots had been delivered to the Region 01 office. It was

agreed to delay commencement of the count from 10:00 AM to

11:00 AM on August 5, 2014 in order to consider any additional

ballots arriving with that day’s mail. Three more ballots arrived

on August 5, and the count began at 11:00 AM. The Union won

the election by a vote of seventeen to fourteen. All thirty-one

ballots were found to be valid; none was challenged. Two

workdays later, on August 7, 2014, seven additional ballots were

delivered to the Region 01 office. Five were postmarked from

Providence, Rhode Island on July 31; one from Brockton,

Massachusetts on August 1; and one from Boston,

Massachusetts on August 4.

4

On August 8, 2014, NCR requested that Region 01's Acting

Regional Director open and count the seven late-received

ballots. The Union objected. The Acting Director denied

NCR’s request, and NCR filed objections to the conduct of the

election. The Regional Director recommended that the Board

overrule NCR’s objections because “the conduct of the election

was in accord with established election mechanics; no employee

was misled as to the balloting requirements; and . . . a deviation

from the established procedure would place an unusually high

burden on the election process in general and prevent a prompt

conclusion to representation proceedings.” Reg. Dir. Decision

1 (Sept. 9, 2014) (“Reg. Dir.”). NCR filed exceptions. On April

2, 2015, the Board adopted the Regional Director’s findings and

recommendations and certified the Union as the collective

bargaining representative for the bargaining unit at NCR. NCR

Corp. & Int’l Bhd. of Elec. Workers, Local 222, 01-RC-130289

(Apr. 2, 2015) (“Bd. Dec.”).

When NCR refused to bargain, the Union filed an unfair

labor practice charge, and a complaint and notice of hearing

alleged that NCR violated section 8(a)(5) and (l) of the Act by

refusing to recognize and bargain with the Union. Upon the

filing of NCR’s answer admitting its refusal to bargain and

claiming the Board improperly certified the Union, the General

Counsel moved for summary judgment in this “straightforward

test of certification case.” Mem. in Supp. of Mot. for Summ. J.

& for Issuance of Bd. Decision & Order 1 (May 14, 2015).

Following NCR’s reply to an order to show cause, the Board

granted summary judgment and found NCR had violated section

8(a)(5) and (l) of the Act. The Board concluded that all of the

representation issues were or could have been litigated in the

representation proceedings and that NCR neither offered to

adduce newly discovered evidence nor alleged any special

circumstances that would require the Board to reexamine the

Regional Director’s decision. NCR Corp. & Int’l Bhd. of Elec.

5

Workers, Local 222, 362 NLRB No. 146 (July 13, 2015). NCR

petitions for review.

II.

NCR contends that the Board abused its discretion in

overruling the objections to the conduct of the mail ballot

election where late-received ballots were not opened and

counted. Specifically, NCR maintains that the Board failed to

decide whether the seven voters who mailed their ballots in

accordance with the Notice of Election were possibly

disenfranchised, and in so doing, arbitrarily sacrificed voter

enfranchisement to administrative expediency. The voting

instructions were, NCR continues, “certain to confuse voters,

and thus, constituted an election irregularity.” Pet’r’s Br. 17.

So, the election should be set aside in accordance with existing

Board precedent, Garda World Security Corp., 356 NLRB 594

(2011), and Wolverine Dispatch, Inc., 321 NLRB 796 (1996).

Our review of the Board’s decision and order is limited, and

especially so in regard to representative elections where

“Congress has entrusted the Board with a wide degree of

discretion in establishing procedure and safeguards necessary to

insure the fair and free choice of bargaining representatives by

employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330

(1946); see Durham School Servs., LP v. NLRB, 821 F.3d 52, 58

(D.C. Cir. 2016); Serv. Corp. Int’l v. NLRB, 495 F.3d 681, 684

(D.C. Cir. 2007). The Board’s interpretation of the Act will be

upheld unless it “is not ‘reasonable and consistent with

applicable precedent.’” Serv. Corp. Int’l, 495 F.3d at 684

(quoting Fashion Valley Mall, LLC v. NLRB, 451 F.3d 241, 243

(D.C. Cir. 2006)). The Board’s findings of fact are conclusive

so long as “supported by substantial evidence . . . .” 29 U.S.C.

§ 160(e), (f) (2012). Because NCR “admit[ted] it refused to

bargain with the union, if the union was properly certified, then

6

the Board’s order is supported by substantial evidence.” NLRB

v. Pinkerton’s Inc., 621 F.2d 1322, 1325 (6th Cir. 1980).

A.

NCR agreed to a mail ballot election and voluntarily entered

into a Stipulated Agreement setting forth the terms for the

conduct of the election. The Agreement provided, and the

accompanying Notice to employees stated, that the Board would

mail ballots to employees on July 21, 2014 and that “[v]oters

must return their mail ballots so that they will be received in the

[] Board Region 01 office by close of business” on August 4,

2014. Both the Agreement and Notice specified: “The mail

ballots will be counted at the Region 01 office” at 10:00 AM on

August 5, 2014. Consistent with the Agreement, the Board

Agent opened and counted the thirty-one ballots received by the

time of the count. Nonetheless, NCR contends the Regional

Director should have counted the seven additional ballots that

arrived two days later because the postmark dates show

employees sent them in sufficient time for them to have been

received by August 4 even if they did not arrive until two days

after the count. NCR maintains that because the Agreement and

Notice stated only that ballots must be mailed so that they will

be received by August 4, not that they had to arrive by that date,

all that was required of employees was to mail their ballots

“early enough, in their reasonable estimation, to be received at

the [Region 01 office] by August 4.” Pet’r’s Br. 17.

The Board did not abuse its discretion in rejecting NCR’s

objections to the conduct of the election. First, the Board

concluded that the phrase “so that they will be received” by

August 4 was not misleading. It noted that sentence has been

used in Board notices for many years and makes clear that the

ballots must be received in the Region 01 office by the date set

in order to be counted. Second, NCR ignores the following

sentence, in both the Agreement and the Notice, that explicitly

7

stated ballots would be counted on August 5, “clear[ing] up any

possible confusion as to when the voters had to have their

ballots arrive in order to be counted.” Bd. Dec. 1 (see Reg. Dir.

4). Third, Board precedent shows that while it has sometimes

counted ballots that arrive after a due date, it has consistently

refused to count ballots that arrived after the count. See Watkins

Constr. Co., Inc., 332 NLRB 828 (2000); Am. Driver Serv., Inc.,

300 NLRB 754 (1990); Kerrville Bus. Co., 257 NLRB 176

(1981). Likewise the NLRB Representative Casehandling

Manual, section 11336.5(c), is to the same effect, and NCR

bound itself to the Board’s post-election procedures in the

Stipulated Election Agreement, which states that “[a]ll

procedures after the ballots are counted shall conform with the

Board’s Rules and Regulations.”

NCR’s objections to the election stem, then, from a

misreading of the Agreement and Notice, and from a

disagreement with the Board’s policy on handling late-received

ballots. To the extent NCR maintains that voters compared the

text of the 2014 notice to notices sent in 2008 and 2010 and

determined that the difference in wording was meaningful,

NCR proffered no evidence of confusion and its view is facially

unpersuasive. The Board points out that many notices cited by

NCR contain identical text or simply state the same

requirements in different terms and would prevent counting late-

received ballots.

As regards the Board’s precedent, NCR contends that the

cases cited by the Board, as well as the Board’s subsequent

decision in Classic Valet Parking, Inc., 363 NLRB No. 23

(2015), are distinguishable because they did not involve an

election irregularity. NCR instead points to the Board’s

unpublished decision in MCS Consultants, Inc., 29-RC-11339

(Sept. 25, 2006), where “[i]n light of the unique circumstances,”

when only two votes of a potential six total were timely

8

received, the Board ordered the opening and counting of ballots

received after votes had been tallied, so long as the ballots were

timely mailed. MCS Consultants, Inc., 29-RC-11339 at *2. In

Classic Valet, however, the Board explained that MCS

Consultants “is neither precedential nor consistent with the

Board’s established rule on late-arriving mail ballots.” Classic

Valet Parking, Inc., 363 NLRB at *1 n.2 (2015).

The Board’s adherence to the parties’ stipulated agreements

as to phrasing of the instructions and the ballot count date does

not constitute an election irregularity. See Kirsch Drapery

Hardware, 299 NLRB 363, 364 (1990). Party stipulations

governing representation proceedings are binding “absent a

showing of ‘changed or unusual circumstances. . . .’” Comput.

Assoc. Int’l v. NLRB, 282 F.3d 849, 852 (D.C. Cir. 2002)

(quoting Micro Pac. Dev. Inc. v. NLRB, 178 F.3d 1325, 1335

(D.C. Cir. 1999)). Moreover, the Board need not find an

election by mail invalid “whenever a potentially decisive

number of votes, no matter how small, is lost through the

vagaries of mail delivery.” J. Ray McDermott & Co., Inc. v.

NLRB, 571 F.2d 850, 855 (5th Cir. 1978). Such an approach

“might unduly deter the use of mail balloting in cases like this

in which a mail election . . . might prove more representative of,

and fairer to, the voting employees.” Id. Here, the Board

counted thirty-one ballots of forty-one eligible voters, a 76%

participation rate. This is a higher percentage than in Antelope

Valley Bus Co., where the court concluded the petitioner had

failed to show an election was invalid when some voters claimed

not to have received their mail ballots, but 66% of the eligible

voters successfully voted. Antelope Valley Bus Co. v. NLRB,

275 F.3d 1089, 1095-96 (D.C. Cir. 2002). Absent some

evidence of misconduct, NCR fails to meet its “heavy burden”

of showing that the election was improper. Id. at 1096 (quoting

Pinkerton’s Inc., 621 F.2d at 1324).

9

The Board, further, was under no obligation to discuss the

decisions on which NCR relies where “the grounds for

distinction are readily apparent.” Id. at 1092. In Garda World

Security Corp., the Board found an election irregularity where

a Board agent closed the first of two polling sessions early and

potentially disenfranchised voters who had arrived during the

scheduled polling hours but left without voting when the agent

told them their ballots would be subject to challenge. Garda

World Sec. Corp., 356 NLRB 594, 594 (2011). In Wolverine

Dispatch, Inc., polls were temporarily closed in the middle of a

scheduled polling session. Wolverine Dispatch, Inc., 321 NLRB

796, 796 (1996). Finding that an outcome determinative number

of voters could have been disenfranchised by this unscheduled

closing, the Board set aside the election. Id. at 797. Of course,

election irregularities are not limited to unscheduled closings of

the polls. But here the Board counted all of the ballots that were

received by the Notice deadline, and counted those ballots

received the following day pursuant to the agreement of the

parties. Absent an election irregularity resulting from the

Board’s conduct of the election, the Board’s disenfranchisement

precedent is inapplicable.

B.

NCR’s challenge to the content of the Agreement and

Notice reflects, in effect, a disagreement with the Board’s policy

on late-received mailed ballots. Although the Agreement

approved by the Regional Director did not use the specific

phrasing proposed by NCR, NCR never objected either to the

changes or to the return or ballot count dates prior to filing its

petition for review with this court. See NLRA § 10(e), 29

U.S.C. § 160(e). Because pre-election agreements promote the

prompt and certain completion of representation proceedings,

the Board, with court approval, declines to entertain challenges

to the parties’ chosen election date after the fact. See Cmty.

Care Sys. Inc., 284 NLRB 1147, 1147 (1987); NLRB v. Hood

10

Furniture Mfg. Co., 941 F.2d 325, 330-31 (5th Cir. 1991); Van

Leer Containers, Inc. v. NLRB, 841 F.2d 779, 787-88 (7th Cir.

1988). The Board’s long-established policy is based on the view

that “otherwise an election could be converted from a definitive

resolution of preference into a protracted resolution of

objections disregarded or suppressed against the contingency of

an adverse result.” A.J. Tower, 329 U.S. at 330; see Reg. Dir.

6 (Sept. 9, 2014).

The heart of NCR’s argument thus appears to be that the

Board arbitrarily declined to permit the late-received,

determinative mailed ballots to be counted because only two

days had elapsed after the votes were counted and postmarks

showed these ballots were mailed prior to the August 5 date

when the ballots were to be counted. The Board’s failure to

explain why counting these seven ballots would have interfered

with the prompt completion of the election, NCR contends, was

an abuse of discretion. NCR notes that the Board

accommodates postal delays in other circumstances, accepting

objections to election results postmarked no later than the day

before the due date regardless of when the objections are

actually delivered. See 29 C.F.R. § 102.111(b). NCR adds that

the Board generally asks that eligible voters wait a week from

the mailing date before contacting it about missing ballots to

allow the Postal Service adequate time to make deliveries,

acknowledging the potential for postal delays with respect to the

initial delivery of ballots that therefore necessitated a longer

window to return ballots than was allowed for here.

The Board’s policy of having a final ballot count at the time

the ballots are counted is long established and well supported by

the policy considerations recounted in A.J. Tower, 329 U.S. at

331. These other policies simply highlight that the Board has

taken into consideration timing issues in different

circumstances, as distinct from showing that the Board was

11

unreasonable in not considering a material factor, particularly

when the Notice of Election was not ambiguous about the return

or ballot count dates. NCR initially could have requested a later

date for the ballot count. See Bd. Dec. 1 (see Reg. Dir. 6).

Additionally, NCR’s interpretation would require ballots to be

counted regardless of when they were actually received, even if

weeks or months after the scheduled date of the count had

passed. And “individualized determination[s]” of whether

ballots were mailed reasonably far enough in advance “would

prove time-consuming and potentially lead to extensive post-

election litigation.” NLRB v. Cedar Tree Press, Inc., 169 F.3d

794, 797 (3d Cir. 1999).

The Board’s interpretation, based on the balancing of

conflicting interests in affording employees the broadest

participation in election proceedings while still protecting

against “delay and uncertainty,” see Abbott Ambulance of Ill. v.

NLRB, 522 F.3d 447, 451 (D.C. Cir. 2008), is consistent with its

precedent. It furthers an election process that allows the parties

potentially to begin collective bargaining the day after the

ballots are counted. See Monte Vista Disposal Co., 307 NLRB

531, 533 (1992). NCR’s interpretation could shift the balance

of interests chosen by the Board. Whether the Board’s finality

concerns might be mitigated under a mail ballot procedure

providing a single drop-dead date of the start of the ballot count,

see Oneida Cty. Cmty. Action Agency, Inc., 317 NLRB 852,

852-53 (1995) (Member Truesdale, concurring), remains to be

seen. That determination is for the Board, not the court. See

Antelope Valley Bus Co., 275 F.3d at 1095.

Accordingly, we deny the petition for review and grant the

Board’s cross-application for enforcement of its Order.