Window To The World Communications, Inc.

372 NLRB No. 3 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. Window to the World Communications, Inc. and In- ternational Brotherhood of Electrical Workers Local 1220, Petitioner. Case 13–RC–289039 November 15, 2022 DECISION ON REVIEW AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX The Petitioner’s request for review of the Regional Di- rector’s Decision on Objections and Certification of Re- sults is granted as it raises substantial issues warranting review. On review, we conclude that the singular circum- stances of this case warrant a departure from the Board’s normal approach for dealing with mail ballots that arrive after the count date. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. On January 18, 2022,1 International Brotherhood of Electrical Workers Local 1220 (the Petitioner) filed a pe- tition seeking an Armour-Globe2 election to determine whether a single unrepresented employee—Jose Roberto Gsam—wished to join an existing bargaining unit repre- sented by the Petitioner. On February 4, the Acting Re- gional Director approved a Stipulated Election Agreement that provided that the election would be conducted by mail. Gsam completed and returned his ballot in a timely manner, but at the March 16 ballot count his ballot was declared void because the Region had erroneously sent him a ballot that contained the name of the wrong em- ployer and the wrong union. On March 24, the Acting Re- gional Director approved a stipulation to set aside the elec- tion and to hold a second election by mail. The stipulation scheduled the ballot count for April 21. Gsam again completed and mailed his ballot to the Re- gion, but his ballot was not received prior to the April 21 count, which went forward as scheduled. The resultant tally of ballots showed 0 votes cast for the Petitioner and 0 votes cast against representation, with no challenges or void ballots. On April 26, the Petitioner timely filed an objection to the election arguing that the second election should be set aside as the only voter’s ballot was missing; in support of its objection, the Petitioner submitted an 1 All dates hereinafter 2022 unless otherwise noted. 2 Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamping Co., 3 NLRB 294 (1937). 3 The Region has further advised us that the return envelope provided to Gsam was a business reply envelope. To the extent that the use of this delivery method may have contributed to the delay in the delivery of his affidavit from Gsam stating that he had mailed his ballot on April 5. Gsam’s ballot was received by the Region on May 4. The Region has administratively advised us that Gsam’s ballot was indeed postmarked April 5.3 On May 26, the Acting Regional Director issued a De- cision on Objections and Certification of Results in which he overruled the Petitioner’s objection and certified the re- sults of the election. Applying CenTrio Energy South, LLC, 371 NLRB No. 94 (2022), the Acting Regional Di- rector concluded that Gsam’s determinative mail ballot could not be counted because it had arrived after the date of the ballot count. The Acting Regional Director addi- tionally noted that the apparent failure in mail delivery was not the type of “severe” circumstance that would war- rant setting an election aside. The Petitioner timely filed the instant request for review. In CenTrio, the Board reiterated that it “does not count mail ballots that arrive after the tally, even if those votes are determinative.” CenTrio, 371 NLRB No. 94, slip op. at 1 (citing Classic Valet Parking, 363 NLRB 249, 249 (2015)). In Classic Valet, the Board explained that the practice of not counting late-arriving mail ballots is in- tended to balance the Board’s “strong interest in effectu- ating employee choice” and “substantial policy consider- ations favoring finality of election results.” Classic Valet, 363 NLRB at 249. The Board expressed a concern that if it allowed late-arriving mail ballots to be counted, “elec- tion results could well be delayed for significant periods of time as mail ballots trickle into the regional office.” Id. After careful consideration, we have concluded that the singular facts of this case warrant a narrow exception to the general rule articulated in CenTrio and Classic Valet. We will therefore rescind the Certification of Results and remand this case to the Region for further proceedings, in- cluding opening and counting the ballot Gsam cast in the second election (if the parties so agree) or holding a third election (if the parties cannot agree to open said ballot). The following highly unusual combination of circum- stances informs our conclusion. First, the second election was necessary only because the Region provided Gsam with a ballot listing the wrong union and employer; had Gsam been provided with a correct ballot, there would have been no need for this second election. Second, it is undisputed that Gsam promptly placed his second ballot in the mail, so the delay in its receipt is not attributable to any action or inaction on his part.4 Third, Gsam was the ballot to the Region, we observe that Regions have been instructed to discontinue the use of business reply envelopes in mail-ballot elections. 4 As indicated, that delay may potentially be due to the Region’s pro- vision of a return envelope that used business reply mail, a practice that has since been discontinued. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 sole voter in this self-determination election, and if the Certification of Results is permitted to stand he will, through no fault of his own, have to wait for a year before being able to vote again on whether to be included in the existing unit. See Sec. 9(c)(3). Finally, Gsam’s ballot was in fact received by the Region prior to the issuance of the Certification of Results. As this combination of circumstances indicates, the usual balancing of enfranchisement and finality that ani- mated CenTrio and Classic Valet is not present here. Gsam is the sole voter in the election, so opening his ballot or holding a third election clearly furthers enfranchise- ment interests; by contrast, allowing the results of the sec- ond election to stand would definitively disenfranchise 100 percent of the eligible voters in this election. At the same time, permitting Gsam’s late-arriving ballot to be counted or holding a third election implicates almost no finality interests: here too, Gsam is the sole eligible voter, so counting his late-arriving ballot or holding a third elec- tion does not detract from any other voters’ interest in fi- nality. Nor would counting his ballot or holding a third election significantly detract from any interest in finality the Employer might have; the Employer is already obli- gated to bargain with the Petitioner in the existing unit, and at most counting Gsam’s ballot or holding a new elec- tion will result in the addition of one employee to the unit. These singular circumstances thus present an entirely dif- ferent balance of interests than is present in ordinary late- arriving mail ballot cases. If there is any interest in finality here, it is conclusively outweighed by the interest in en- franchisement. In conclusion, the singular circumstances of this case warrant a departure from the Board’s usual approach to late-arriving ballots.5 We therefore rescind the Certifica- tion of Results and remand the case for further action con- sistent with this decision. With respect to further action on remand, we observe that the stipulation to the rerun election provided that ballots had to be received by April 21; opening and counting Gsam’s second ballot, which 5 Although Member Kaplan joins his colleagues in granting review and remanding the case for further appropriate action, he does not believe that their narrow exception to CenTrio is sufficient. Instead, he would find more broadly that the bright-line rule set forth in CenTrio should not be applied whenever doing so would irrationally interfere with employ- ees’ fundamental right under the Act to choose whether or not to be rep- resented by a union. That would certainly be the result of applying Cen- Trio here. See generally Premier Utility Services, LLC, 363 NLRB 1524, 1524 (2016) (Member Miscimarra, dissenting) (explaining that the Board’s normal rules governing late-arriving ballots “must be balanced against our statutory responsibility to assure that employees have been reasonably permitted to freely exercise their rights under the Act” (inter- nal citations omitted)); Classic Valet, 363 NLRB at 249 (Member Misci- marra, dissenting in part) (urging “a departure” from the normal rule in “extremely unusual case[s] . . . when our regular procedures have been arrived after April 21, would therefore be contrary to the stipulation,6 but we emphasize that the parties are free to agree to open and count Gsam’s second ballot, thereby ob- viating the need for a third election. If the parties agree to open and count Gsam’s second ballot, the Regional Direc- tor shall issue a revised tally of ballots and, ultimately, a new certification of results. If the parties do not agree to open and count Gsam’s second ballot, then the Regional Director shall sustain the Petitioner’s objection and pro- ceed to a third election.7 ORDER The May 26, 2022 Certification of Results is rescinded. The case is remanded to the Regional Director for Region 13 for further appropriate action consistent with this De- cision on Review and Order. Dated, Washington, D.C. November 15, 2022 Lauren McFerran, Chairman Marvin E. Kaplan, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD deficient” in order to “satisfy our overriding statutory responsibility to assure to employees the fullest freedom in exercising the rights guaran- teed by [the] Act” (internal citations omitted)). Member Kaplan further observes that this case presents a convincing example of why manual elections are preferable to mail-ballot elections. See Starbucks Corp., 371 NLRB No. 154, slip op. at 7 (2022) (Members Kaplan and Ring, dissenting) (cataloguing other recent failures in the administration of mail-ballot elections). 6 See T & L Leasing, 318 NLRB 324, 326 (1995). 7 In its request for review, the Petitioner asks that a third election be conducted manually, rather than by mail ballot. Both the original Stipu- lated Election Agreement and the stipulation to a rerun election, how- ever, provide for a mail-ballot election. Thus, if the parties will not agree to open and count Gsam’s second ballot, the third election will also be conducted by mail ballot, unless the parties agree to a manual election.