On September 18, 2003, workers at New York Display & Die Cutting Corp. cast ballots to decide on union representation.  Yet even with just 26 ballots cast, it wasn’t until June 3, 2004—more than eight months after the election—that the results were announced. The workers at the sign and display production company expected and deserved a swift resolution, but were instead forced to hold their breath awaiting the election outcome. 

This was not a matter of hanging chads, allegations of misconduct, or unfair labor practices.  This was simply the result of a labor law system that cannot guarantee workers the right to a timely resolution.

So what happened?  As the ballots were being cast on September 18, there was a question about the eligibility of six voters. The election observers representing the union believed that some of those who voted were part of management and some were not part of the appropriate unit of production workers. The federal agency charged with overseeing these elections—the National Labor Relations Board (NLRB)—then had to resolve the challenged ballots.  Click here  to learn how ballots are challenged.

On May 12, 2004, the NLRB handed down its decision to resolve the case.¹  It decided that five of the six challenged ballots should be counted in the election.  Two weeks later the votes were counted.  Finally, 259 days after the votes were first cast, the workers, the employer and the union all learned the outcome of the union representation election: 12 for and 14 against. 

Is the Board decision the final say in a case like this? The answer is no. Had the union won the election, the employer could appeal the decision to a federal appeals court.  It typically takes more than a year for such an appeal to be decided by the federal court. 

Unfortunately, there’s nothing in labor law procedures that can prevent delays like this.  In many cases, it takes the NLRB eight months or more after the election to issue a decision.

It doesn’t have to be this way.  Surely there’s a way in which these issues could be resolved within a few days.  Surely a system could be devised to ensure that workers are guaranteed a timely process.  In the interim, American workers wait, and wait, and wait.  Eight months is far too long of a wait for workers to learn the fate of an important vote—one that likely impacts the future of their workplace.

How are Ballots Challenged?

Both unions and employers have the right to question whether any voter is eligible to vote in a union representation election and such challenges are routine.  When the eligibility of a voter is challenged, the voter casts a provisional ballot that is set aside until after the NLRB agent counts the unchallenged ballots.  After the initial tally, if including the challenged ballots would in no way impact the outcome, the NLRB agent can determine which side has a majority support.  If the challenged ballots can impact the election outcome, the challenged ballots must be resolved by the federal agency charged with overseeing these elections – the NLRB. 

1  New York Display & Die Cutting Corp. and Paper Allied Industrial Chemical Energy Workers International Union, AFL–CIO–CLC Local 107, Petitioner. Case 2–RC–22744, decided May 12, 2004.

2 In 2002, in more than half the cases, it took the NLRB in Washington, DC, longer than 165 days from the issuance of a regional NLRB decision to issue a decision in a post election challenge or objections case.  In that same year, in 82% percent of such cases, the region issued decisions within 100 days of the election.  Source: National Labor Relations Board:  Annual Report of the NLRB for Fiscal Year Ended September 30, 2003; FY 2003 Annual Performance Report.