2d Circuit upholds NLRB's ruling against employer

In this case brought under the National Labor Relations Act, the National Labor Relations Board ruled against the employer, Blue School, which refused to bargain with its employees or certify the election after its employees voted to join a union. The Court of Appeals sustains the NLRB's ruling.

The case is NLRB v. Blue School, a summary order issued on November 12. The NLRB certified the election. To win this case, the employer faces a "heavy burden" in proving the NLRB abused its discretion in ruling against the employer. The employer argues the NLRB abused its discretion because the Regional Director directed an immediate mail-ballot election and then overruled the employer's objections without a post-election hearing. Both arguments fail, says the Court of Appeals.

First, we have a problem: the Blue School does not exist any longer. In a footnote, the Court (Jacobs, Merriam and Velardo [D.J.]) says the NLRB was still pursuing this action because "providing notice of its action to the former employees furthers the Board's mission of ensuring that workers are aware of their rights." All this places this case in a very odd procedural context.

On the merits, here is the factual background giving rise to this case:

The Union filed its representation petition on June 7, 2021. A few weeks later, at the end of the school year, approximately 48 out of the school’s 93 employees were terminated. The remaining eligible employees were able to vote in the election over the summer and voted overwhelmingly to unionize – 24 votes in favor and four against. Because the election took place over the summer, Blue School had limited opportunity to communicate with the remaining employees about their options. The new employees that joined the school in the fall were bound by the vote, though they had not had the opportunity to participate. In the end, one population of employees made the showing of interest, a second population voted to join the union, and yet a third was subject to the results of that election. 

No delay in the election was warranted here, the Court of Appeals says, because the faculty maintained their employment throughout the year with little to no fluctuation. They were not seasonal employees. The Regional Director also found that the school's employees constituted at least 84 percent of the planned collective bargaining unit, so the current employees occupied 100 percent of the anticipated job classifications. "The Regional Director therefore reasonably determined that Blue School’s then-current employees easily met the minimum threshold for a substantial and representative complement of the planned unit, and the Board appropriately directed an immediate election."

The Regional Director was also allowed to conduct the election by mail. There is a body of case guiding decisions like this. "Substantial evidence supported the Regional Director’s determination that the scattering of employees during the summer break presented a challenge to in-person voting. The Board thus appropriately upheld the Regional Director’s decision to conduct a mail-ballot election."

What about the school's objection that it wanted a hearing to resolve its post-election objection? The school said that, due to the conduct of nonparties, the employees were to able to exercise their freedom of choice on whether to join a union. That argument fails, the Court says, because the school did not indicate which employees would testify or summarize their anticipated testimony.