NLRB Can Ignore Its Own Manual in Certifying a Union Election

In Hard Rock Holdings, LLC v. NLRB, the D.C. Circuit held on Friday that because the National Labor Relation Board’s Casehandling Manual is merely “staff guidance, not binding procedure,” the Board’s certification of a union election may stand despite two violations of the Manual.  (PDF)

Most significantly, the court held that the union did not waive its right to contest the anti-union votes of employees whose names were included on the company’s list of eligible voters in the stipulated bargaining unit, even though the union signed that list before the election rather than revoking its approval of the stipulated bargaining group or mounting a pre-election challenge to the eligibility of listed voters.  The Manual provides that “[o]nce the list is in hand, the Regional Office [of the Board] should have the parties check and approve the list promptly, to allow maximum time to resolve eligibility questions and thus reduce the number of challenges” during an election.  “If the number or nature of challenges raised is significant, consideration should be given to withdrawal of the Regional Director’s approval of the election agreement or to reconvening the parties for clarification. . . . The parties should be encouraged to air and to talk out their questions.” (PDF)

The court cited a Seventh Circuit case for the proposition that “an employer’s placing of a name on such a list does not establish that the parties intended the employee to be included in a stipulated unit.”  But the D.C. Circuit went even further.  Under the second prong of the Associated Milk test, the Board must apply ordinary contract law principles to interpret an ambiguous stipulated bargaining unit agreement.  Judge Rogers suggested that  a union’s failure to object to the company’s inclusion of certain employees on the list of bargaining unit members does not even qualify as extrinsic evidence that the Board must consider in interpreting the ambiguous stipulation.

The court also held that, absent evidence of unfairness, the failure of the Board’s agent to make the election observers wear badges as required by the Manual did not void the election.  “Deviations in election procedures do not necessarily affect, much less undermine, the fairness of an election.”

Hard Rock Holdings v. NLRB, No. 11-1104 (Mar. 23, 2012) (Rogers, J., joined by Edwards, S.J., and Ginsburg, S.J.)

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