The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2021 Decided February 23, 2021
No. 20-1152
NATIONAL HOT ROD ASSOCIATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND
ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND
CANADA, AFL-CIO, CLC,
INTERVENOR
Consolidated with 20-1179
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Charles P. Roberts, III argued the cause and filed the briefs
for petitioner.
2
Brady Francisco-FitzMaurice, Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the brief were Peter B. Robb, General Counsel, Ruth E.
Burdick, Acting Deputy Associate General Counsel, David
Habenstreit, Assistant General Counsel, and Usha Dheenan,
Supervisory Attorney.
Denis P. Duffey, Jr. and Nicholas J. Johnson were on the
brief for intervenor International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied
Crafts of the United States, Its Territories and Canada,
AFL-CIO, CLC in support of respondent. Franklin K. Moss
entered an appearance.
Before: TATEL and RAO, Circuit Judges, and SILBERMAN,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN .
SILBERMAN , Senior Circuit Judge: Petitioner National Hot
Rod Association seeks review of a Board decision that it
violated the National Labor Relations Act by refusing to
bargain (§ 8(a)(5)) with the International Alliance of Theatrical
Stage Employees, AFL-CIO. This challenge is really to the
Board’s certification of the Union’s victory in the
representation election which was decided by one vote. Since
we conclude that the Board was at fault in preventing at least
one of the bargaining unit employees from possibly casting a
vote, we grant the petition and deny enforcement of the Board
order.
I
The Union filed a petition with the Board to represent all
broadcast technicians employed by the Company. These
3
employees were spread all over the country. The parties entered
into a Stipulated Election Agreement, setting the terms of the
election. The Agreement stated that the election would be
conducted by mail by the Board’s Regional Office in Newark.
The Regional Office would mail the ballots to voters on
Tuesday, November 15, 2016. Ballots were due back to the
Regional Office by November 30, and the Board would count
the ballots at 10 A.M. on December 2.
The Notice of Election provided to employees stated:
Those employees who believe that they are
eligible to vote and did not receive a ballot in
the mail by Tuesday, November 22, 2016,
should communicate immediately with the
National Labor Relations Board by either
calling the Region 22 Office . . . or our
national toll-free line.
J.A. 97 (emphasis added).
Several employees did not receive ballots and requested
replacements. One employee, Robert Logan, contacted the
Board promptly on the morning of Wednesday, November 23,
calling the Regional Office twice and leaving two voicemails.
(The next day was Thanksgiving.) On Friday, Logan left
another voicemail with the Regional Office. Then, the
following Monday, November 28—five days after Logan had
first called—he contacted a Board Agent personally to request
a duplicate ballot. The Regional Office finally sent a duplicate
ballot to Logan. Logan received his original ballot (postmarked
November 15) on December 5 and received his duplicate ballot
(postmarked November 28) on December 7.
Other employees had similar problems. At least seven
employees sought and received duplicate ballots that they were
able to timely return. But at least three were unsuccessful,
including Logan, and either did not return a ballot or returned a
ballot after the count had taken place.
4
The Company objected to the election, arguing the Board’s
delays in sending out replacement ballots made it impossible
for some employees to return their ballots on time. Because this
irregularity could have disenfranchised a dispositive number of
voters—one is sufficient given the close vote—the certification
of the Union was defective. The Company also argued that late-
arriving votes should be counted because they came in before
the final resolution of ballot challenges.
The Board rejected the Company’s objections in the
representation proceeding and declined to reconsider its
position in the unfair labor practice case. It concluded that the
Company failed to meet its burden to show that the conduct of
the Board caused anyone to miss his or her opportunity to vote.
Rather, the vagaries of mail delivery or the employee’s own
actions were to blame—not the Board. The Board thought that
Logan should have made additional efforts to reach the Board,
noting that Logan only called the Regional Office but did not
also call the Board’s national hotline, which was provided as
an option in the Notice. And counting late ballots would
contradict the Stipulated Election Agreement and Board
precedent.
II
As is well known, an employer who challenges a Board
representation proceeding (called an “R” case) must refuse to
bargain with a certified union. Then, after the Board holds the
employer in violation of § 8(a)(5), the employer can petition for
review in a Court of Appeals. See, e.g., Am. Fed’n of Lab. v.
NLRB, 308 U.S. 401, 406–12 (1940).
Petitioner argues that in this razor-thin election (35 for the
Union to 34 opposed) certain employees were denied the
opportunity to vote and the Board was at fault for not mailing
timely ballots to several of them. Then Petitioner repeats the
claim that the Board should have counted some ballots received
after the due date in the Election Agreement. The Board
responds that Petitioner did not meet the high burden of
5
demonstrating that the failure of several employees to have
their votes counted was an “irregularity” attributable to Board
agents. Instead, the problem, according to the Board, was
caused by the frustrated voters themselves or, alternatively, was
attributable to the vagaries of the U.S. mail delivery system.
The Board’s law is rather clear. Although employees have
some responsibility for overcoming obstacles to voting, as we
noted, if the Board itself causes an “irregularity” and the
number of voters possibly disenfranchised could affect the
outcome of an election, no certification of the result is
appropriate. Garda World Security Corp., 356 NLRB 594
(2011); Waste Mgmt. of Nw. La., Inc., 326 NLRB 1389 (1998);
Visiting Nurses Ass’n of Metro. Atlanta, Inc., 314 NLRB 404
(1994). This standard is strict; the Board has even overturned
election results if Board agents inadvertently closed a polling
location for five minutes, Wolverine Dispatch, Inc., 321 NLRB
796, 796–797 (1996), or even one minute early, Garda, 356
NLRB at 594—notwithstanding a failure to show in those cases
that any specific voter was disenfranchised. See also Davis &
Newcomer Elevator Co., 315 NLRB 715 (1994) (applying a
similar standard to mail-in elections).
Given the close election in which one vote was
determinative (if there is a tie, the Union loses, see O’Dovero,
325 NLRB 998 (1998)), we look to Logan’s difficulties first. If
the Board bore responsibility for his inability to vote, that is the
end of the matter. And we think that is exactly the situation.1
We have some sympathy for the Board’s lawyer; he had a
virtually impossible case. Before us it was claimed that Logan
was somewhat at fault because he did not also call the
alternative number on the Election Notice, but that strikes us as
patently unreasonable. Logan followed the instruction in the
Notice which gave him an option to call either the Newark
1
It is therefore unnecessary to consider Petitioner’s other
arguments.
6
office which was running the election or the national toll-free
line. He took one authorized choice (arguably the more logical
choice).
In any event, the Board, responding to Petitioner’s claim
that it was negligent because it did not monitor the Newark
office number, asserted that it did in fact monitor that number.
The Board thereby left the devil for the deep blue sea. As
Petitioner gleefully pointed out, since the Board was
monitoring the Newark number, it was obviously derelict in not
responding to Logan for five crucial days. Furthermore—and
this is the killer—if the Newark number was monitored and
therefore the Board received Logan’s message, it would have
done Logan no good to have repeated the same message to
another number.2
As we noted, the Board also claimed that the cause of
Logan’s frustration in not getting a ballot in time is the fault of
the U.S. Mail, not the Board. The Board emphasized that Logan
did not receive the original ballot until 20 days after the Board
mailed it, and his replacement ballot did not arrive until 9 days
after it was sent. So even if the Board had mailed Logan’s
supplemental ballot immediately on November 23, it likely
would have arrived too late.
The problem with that argument is that two other
supplemental ballots mailed on November 23 did in fact arrive
and were returned to the Board in time to be counted. It should
be recalled that under the Board’s standard, it is only necessary
for a challenger to an election to establish that it was possible
2
The Intervenor (the Union) asserts that the Stipulated Election
Agreement, which states that voters must call by 5 P.M. on
November 22 if they hadn’t received their ballot, should control
rather than the Notice, which fairly implies one should wait until the
next morning. But since it is the Notice that is required to be made
available to employees, that argument strikes us as futile. And in any
event, it was not adopted by the Board.
7
for a Board irregularity to have caused a different voting result. 3
Petitioner easily meets that burden; the Board’s decision is
therefore unreasonable (arbitrary and capricious).
Thus, we grant the Company’s petition for review and
deny the Board’s cross-application for enforcement.
So ordered.
3
The Board’s brief suggests—extraordinarily—that Logan’s
vote could be ignored since there are indications that he favored the
Union. That position ignores the importance of the secret ballot.