One Democrat Member and one Republican Member of the National Labor Relations Board joined together to set aside an election won by the union 14-12 because the Board agent opened the polls seven minutes late and there were four employees–a number that could affect the result–who did not vote.

Members Lauren McFadden and William Emmanuel found in Bronx Lobster Place, LLC, NLRB Case No. 02-RC-191753 (Feb. 2, 2018), “that the late opening of the polls, combined with the possible disenfranchisement of potentially dispositive voters, warrants setting the election aside” despite evidence that there were no employees at or near the polls trying to vote during those seven minutes. Relying on a 2001 Board decision, Pea Ridge Iron Ore Co., 335 NLRB 161 (2001), which also involved a seven minute delay in the opening of the polls, the Board reaffirmed that:

[w]hen election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.

Because there was no evidence that any employees were actually disenfranchised by the late opening, Member Pearce dissented based on the Board’s decision in Arbors at New Castle, 347 NLRB 544 (2006). The Board majority noted, however, that there was actual evidence as to why the employees did not vote in Arbors, unlike the record currently before it, and thus Arbors does not compel a different result.