07/23/2026: Board Declines to Count Hand-Delivered Mail-In Ballots
You have to mail the mail-in ballots.
Starbucks Corporation, 375 NLRB No. 7, 19-RC-295849 (Published Board Decision)
The Board ruled on a dispute stemming from a mail-ballot election among baristas and shift supervisors at a Seattle Starbucks store, where the vote ended in a 4-4 tie with two challenged ballots that would decide the outcome.
The challenged ballots belonged to two employees who, instead of returning their mail ballots through the U.S. Postal Service as instructed, personally delivered them to the Regional Office on the day ballots were due. One employee had a third party leave the sealed ballot in a drop box at the office, while the other handed his ballot directly to an employee there. The Employer challenged both ballots on the grounds that they lacked postmarks and had not been mailed as the voting instructions required.
A Board majority made up of Chairman Murphy and Member Mayer sided with the Employer, reversing the Regional Director’s decision to count the ballots. The majority found that the notice of election and accompanying voting instructions clearly and unambiguously directed voters to return their ballots by mail, with no allowance for hand delivery, and noted that the Board has no procedures permitting ballots to be dropped off in person at a Regional Office. Because the two voters chose not to follow those instructions, the majority concluded their ballots could not be counted, regardless of whether the ballots themselves were secure and unaltered.
The majority separately upheld the Regional Director’s rejection of the Employer’s objections to the election, which had argued that Region 19 staff engaged in misconduct by accepting the ballots and that the union had unlawfully solicited hand delivery. The Board found no evidence that regional staff coordinated with the union or that the union directed either employee’s actions, and held that accepting the improperly delivered ballots did not cast doubt on the fairness of the election, especially since both ballots were flagged as challenged and ultimately excluded.
With the two contested ballots voided, the final tally remained tied at four votes for the union and four against, meaning the union failed to secure a majority. The Board therefore certified that the union is not the exclusive representative of the bargaining unit.
Member Prouty dissented in part, agreeing that the Employer’s objections should be overruled but arguing that the two hand-delivered ballots should have been counted. He noted that no Board rule or instruction expressly prohibited hand delivery, that both voters had otherwise fully complied with ballot-completion procedures, and that the ballots’ authenticity was undisputed. He warned that disenfranchising the two voters was unnecessary to protect election integrity and urged the General Counsel to issue clear guidance allowing hand delivery of mail ballots going forward.
Significant Cases Cited
Polymers, Inc., 174 NLRB 282 (1969): Established that a party challenging an election based on Board procedural deviations must show conduct raising reasonable doubt about the fairness and validity of the election, not merely a failure to achieve absolute compliance with Board rules.
Aspirus Keweenaw, 370 NLRB No. 45 (2020): Set the framework the Regional Director relied on in deciding to direct a mail-ballot election.
Starbucks Corp., 371 NLRB No. 154 (2022): Modified the Aspirus mail-ballot framework but upheld the Regional Director’s decision to direct a mail-ballot election under the prior standard.
Fessler & Bowman, Inc., 341 NLRB 932 (2004): Held that a party’s collection or handling of voters’ mail ballots is objectionable conduct that can be grounds for setting aside an election.
Thompson Roofing, Inc., 291 NLRB 743 (1988): Voided a mail ballot where the voter failed to follow election instructions by printing rather than signing his name on the ballot envelope.
Sea World of Florida LLC D/B/a Discovery Cove, 375 NLRB No. 4, 12-CA-368374 (Published Board Decision)
The Board granted the General Counsel's motion for summary judgment against Sea World of Florida LLC, doing business as Discovery Cove, finding the company unlawfully refused to bargain with the International Union of Operating Engineers, Local 30, after the union was certified as the bargaining representative for a unit of divers and dive supervisors at the company's Orlando parks.
The company had admitted refusing to bargain but argued the certification was invalid because it believed the dive supervisors in the unit were actually supervisors under Section 2(11) of the NLRA and should have been excluded. That argument had already been raised and rejected during the underlying representation proceeding. The company claimed it had newly discovered evidence supporting the supervisors' exempt status, but the Board found it failed to show the evidence was previously unavailable or would have changed the outcome, noting much of it postdated the representation hearing entirely. Because the issue had already been fully litigated and no new evidence or special circumstances justified reopening the record, the Board held the company could not relitigate the unit's composition in this unfair labor practice case.
The Board also rejected a series of constitutional and procedural defenses the company raised, including challenges based on removal protections for Board members and administrative law judges, Fifth and Seventh Amendment claims, separation-of-powers arguments, and various other boilerplate defenses, finding the company offered no evidence or explanation to support any of them.
On the information request front, the union had asked for extensive data covering wages, performance reviews, schedules, benefits, discipline records, and more. The company refused to provide any of it, arguing it had no obligation to do so. The Board reaffirmed that information about unit employees' terms and conditions of employment is presumptively relevant to collective bargaining and must be produced, and since the company offered no basis to rebut that presumption, its refusal violated the NLRA.
The Board ordered the company to bargain with the union on request, furnish the requested information, and post a notice to employees. It also specified that the union's certification year will begin running only once the company actually starts bargaining in good faith, since the delay caused by the unlawful refusal deprived employees of representation during that period.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): A party generally cannot relitigate representation issues in a subsequent unfair labor practice proceeding if those issues were or could have been raised in the representation case.
Manhattan Center Studios, 357 NLRB 1677 (2011): Sets the standard for admitting newly discovered evidence after a representation record has closed, requiring proof the evidence existed but was unavailable earlier, would have changed the result, and was raised promptly.
Metro Health Foundation, Inc., 338 NLRB 802 (2003): Information concerning unit employees' terms and conditions of employment is presumptively relevant to collective bargaining and must be furnished on request.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The Supreme Court rejected the argument that the NLRA's adjudicatory scheme violates the Seventh Amendment right to a jury trial.
Schnurmacher Nursing Home, 327 NLRB 253 (1998): Evidence arising after a representation hearing concludes does not qualify as newly discovered evidence or a special circumstance warranting reopening the record.
DVA Renal Healthcare, Inc., D/B/a DaVita Vallejo, 375 NLRB No. 2, 20-RC-346835 (Published Board Decision)
The Board denied an employer's requests for review of a regional director's decision directing an election and separately certifying a union as bargaining representative for employees at a single dialysis clinic, finding neither request raised substantial issues warranting review.
On the unit scope question, the Board agreed with the regional director that the employer failed to rebut the presumption that a single healthcare facility is an appropriate bargaining unit. The Board reiterated that a party challenging that presumption bears a heavy burden of showing integration so substantial that it erases the separate identity of the facility. While the Board departed from some of the regional director's reasoning, including her findings on differences between clinics offering home dialysis and those that do not, and concluded that evidence of staff interchange between clinics was neutral rather than favoring a broader unit, it still found the employer's overall showing insufficient. The Board was also critical of exhibits the employer relied on to demonstrate interchange, noting discrepancies between figures presented at the hearing and the underlying data.
The Board also rejected the employer's argument that the regional director should have separately analyzed whether the petitioned-for unit was readily identifiable and shared an internal community of interest under the Board's framework in American Steel Construction. It explained that this analysis applies to disputes over whether specific job classifications belong within a unit, not to disputes over whether additional facilities must be added to the unit, which was the only issue the employer had actually raised and litigated. Because the employer never identified specific classifications it believed should be excluded from the unit on community-of-interest grounds, either in its statement of position or at the hearing, the Board found that issue had not been preserved. The Board distinguished this case from Allen Health Care Services, explaining that unlike the employer there, which took no position on the appropriate unit, this employer articulated a specific position, so the regional director was not required to solicit additional evidence beyond what the parties presented.
Finally, regarding the employer's election objections, the Board agreed that the employer's offer of proof failed to establish a prima facie case of objectionable conduct related to alleged videotaping of employees, though it did not adopt the regional director's additional commentary on the issue. Member Mayer dissented in part, stating he would have granted review of the objection because the circumstances described, including the union's alleged video recording of employees at a related facility and its circulation in a group chat, raised material factual questions about whether the conduct could have chilled protected activity that warranted a hearing.
Significant Cases Cited
Mercy Sacramento Hospital, 344 NLRB 790 (2005): A party seeking to rebut the single-facility presumption in healthcare must show integration so substantial that it negates the separate identity of the facility.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Set out the framework for determining whether a petitioned-for unit is readily identifiable and shares an internal community of interest, applicable to disputes over which classifications belong in a unit.
Allen Health Care Services, 332 NLRB 1308 (2000): The Board must have some record evidence to support a unit determination, particularly where a party has not taken a position on the appropriate unit.
New Britain Transportation Co., 330 NLRB 397 (1999): Filling staffing vacancies with volunteers is less persuasive evidence of interchange between facilities.
Ikea Distribution Services, 370 NLRB No. 109 (2021): Addressed when regional directors must solicit evidence on unit issues not actively raised and litigated at the preelection hearing.
Hale Construction, Inc., 375 NLRB No. 3, 32-CA-373919 (Published Board Decision)
The Board granted the General Counsel's motion for summary judgment against Hale Construction, Inc., finding that the company unlawfully refused to bargain with Bricklayers, Tilesetters and Allied Craft Workers, Local 3, after the union was certified as the exclusive bargaining representative of the company's bricklayers.
Hale Construction had admitted refusing to bargain but argued it had no duty to do so because the Regional Director erred in ordering a mail ballot election rather than a manual one, an issue the company had already raised and lost in the underlying representation case. The Board held that this refusal-to-bargain proceeding was not the proper venue to relitigate issues already decided in the representation case, since Hale Construction offered no newly discovered evidence and no special circumstances justifying a second look. Citing Pittsburgh Plate Glass Co. v. NLRB, the Board found no litigable issue remained and granted summary judgment.
The Board also rejected constitutional arguments Hale Construction raised in its answer and response to the show-cause order. It found no Seventh Amendment jury-trial right applies to Board proceedings, and it rejected the company's Article II removal-power challenge because Hale Construction failed to show any actual harm from the removal protections at issue.
Having found the company violated Section 8(a)(5) and (1) of the NLRA, the Board ordered Hale Construction to bargain with the union on request and to post a remedial notice. It denied requests from the General Counsel and the union for additional remedies, concluding traditional remedies were sufficient. Member Prouty dissented in part, stating he would have granted make-whole relief for economic harm, a notice-reading requirement with prior distribution to employees, and a bargaining schedule, consistent with his prior separate opinions in other cases.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): A party cannot relitigate in a subsequent unfair labor practice proceeding representation issues that were or could have been raised in the underlying representation case, absent newly discovered evidence or special circumstances.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): The NLRA does not implicate the Seventh Amendment right to a jury trial.
Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977): Congress may assign adjudication of public rights to an administrative agency without violating the Seventh Amendment.
Collins v. Yellen, 594 U.S. 220 (2021): A party challenging a removal restriction as unconstitutional must show that it caused actual harm.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins when an employer actually starts bargaining in good faith, not from the date of certification, when the employer has unlawfully refused to bargain.
Real You Electrolysis, 19-RC-387648 (Regional Election Decision)
A regional director for the National Labor Relations Board ruled that a single-facility bargaining unit of electrologists at Real You Electrolysis's Vancouver, Washington location is appropriate, rejecting the notion that the unit must also include employees at the company's separate Lakewood, Washington facility.
The Industrial Workers of the World, Portland GMB, petitioned to represent electrologists at the Vancouver location only. Because the employer failed to timely file a position statement, it was precluded from contesting the scope of the unit at hearing, though the regional director still independently assessed whether the petitioned-for unit was appropriate.
Applying the Board's traditional test for single-facility units, the decision examined five factors: centralized control over labor relations, similarity of employee skills and working conditions, employee interchange between locations, geographic distance, and bargaining history. The two facilities, about 120 miles apart, share centralized hiring, firing, and payroll functions handled by a director of operations, and electrologists at both locations receive identical training, pay, and benefits. However, the record showed almost no interchange between the two sites: only one voluntary permanent transfer of an employee, and no evidence of employees regularly performing work at the other location. Training trips to Vancouver by Lakewood employees did not count as interchange because those employees were not performing regular work there.
The regional director concluded that the lack of interchange and the substantial geographic distance outweighed the centralized labor relations and shared job functions, finding the single-facility presumption in favor of a Vancouver-only unit was not rebutted. There was no bargaining history, which was treated as a neutral factor. The decision directs an election among Vancouver electrologists, scheduled for August 4, 2026.
Significant Cases Cited
Trane, 339 NLRB 866 (2003): Sets out the Board's standard multi-factor test for evaluating whether a single-facility unit is appropriate, including how geographic distance interacts with interchange and centralization.
J & L Plate, Inc., 310 NLRB 429 (1993): Establishes the presumption that a single-facility unit is appropriate absent evidence of effective merger or functional integration.
Hilander Foods, 348 NLRB 1200 (2006): Holds that centralized control over some labor relations policies does not defeat a single-facility unit where local supervisors retain meaningful day-to-day authority over employees.
New Britain Transportation Co., 330 NLRB 397 (1999): Explains that employee interchange must involve a significant portion of the workforce and actual supervision at the other location to rebut the single-facility presumption.
Dayton Transport Corp., 270 NLRB 1114 (1984): Found substantial interchange sufficient to defeat a single-facility unit where hundreds of temporary transfers occurred among terminals with direct supervision at the receiving location.
Boeing LAX / Millennium Space Systems, Inc., 31-RC-374505 (Unpublished Board Decision)
The Board denied a union's request for review of a Regional Director's decision dismissing a representation petition, finding the petition did not raise substantial issues warranting review.
The dispute centered on whether a collective-bargaining agreement's extension and modification could serve as a contract bar to the petition. The petitioning union argued that a ratification provision found in Supplemental Agreement 36 applied to the extension and modification, meaning the contract could not bar the petition unless it had been ratified by employees. The Board rejected this argument, reaffirming that ratification only operates as a prerequisite to a contract serving as a bar when the contract itself expressly makes ratification a condition precedent to its validity. The Board found that the ratification language in Supplemental Agreement 36 did not apply to the extension and modification at issue, so ratification was not required for the agreement to bar the petition.
One Board member wrote separately to note that even if the ratification language were read to apply, it concerned only employees' right to vote on a future integrated agreement to be negotiated once the Millennium Space Systems employees are combined into a single unit with Boeing Company employees, a combination that had not yet occurred when the employer and the intervenor executed the extension and modification.
The Board also corrected a procedural point in the Regional Director's decision, clarifying that requests for review of petition dismissals based on a determination that no further proceedings are warranted are governed by Section 102.71(a) of the Board's Rules and Regulations, not Section 102.67 as the Regional Director had stated.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): A contract bars a representation petition unless ratification is expressly made a condition precedent to the contract's validity by the contract's own terms.