In this era of hotly contested elections and claims of voter fraud and suppression, many politicians and pundits cry out to “count every vote.” That cry has not reached the ears of several Biden appointees on the National Labor Relations Board.
In a recent case called CenTrio Energy, a 2-1 Board majority ordered the certification of the Plumbers union as the representative of a 14-person bargaining unit based on only three counted ballots in a mail ballot election. The NLRB Regional Director refused to count seven ballots that, due to post office delays, allegedly arrived “too late” to count.
Member Ring’s dissent noted that the Regional Director disregarded “compelling evidence that at least six voters had mailed their ballot well before the date the ballots were counted in this mail ballot election.” The evidence indicated the seven rejected ballots were timely mailed and postmarked, with their delayed receipt due solely to the well-known failings of the postal service.
It violates the National Labor Relations Act for an employer to negotiate with a “minority” union—a union that lacks the support of the majority of employees. Nevertheless, the Board majority turned aside all arguments against certifying a likely minority union based on what it called “substantial policy considerations favoring the finality of elections.” Yet the dissent points out that the Board has often held open ballot counts, or re-run elections, when exigent circumstances like snowstorms or other unforeseen events occurred. Why did the Board not consider postal delays disenfranchising 50% of the workforce who mailed their ballots on time an exigent circumstance?
Not every NLRB Region is so cavalier in dismissing and destroying workers’ late-arriving ballots. In contrast to the rush to certify the union in CenTrio Energy, one Regional Director recently held open for two extra weeks a ballot count in a decertification case, finding an extension warranted “due to delays in delivery of the United States Post Office mail to the New Orleans Regional Office.”
CenTrio Energy shows the current Board majority certifying a union victory on the flimsiest of grounds, even if that means disenfranchising a majority of the voters to do so. The case also highlights the vagaries of using mail ballot elections, which the Board has allowed with increasing frequency during the COVID-19 pandemic despite longstanding policies favoring in-person voting for representation elections. Voter turnout is almost always lower in mail ballot elections than in manual elections, which makes observers wonder if the current NLRB is at all interested in “counting every vote.”
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