08/12/2026: Informal Email Exchange Cannot Alter Unit for Decertification Purposes
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DistroKid, LLC, 02-RD-364536 (Regional Election Decision)
The Regional Director resolved challenged ballots and objections arising from a decertification election at DistroKid, LLC, where employees voted on whether to continue union representation by the National Association of Broadcast Employees & Technicians. The mail-ballot count came back tied at 13 to 13, with four challenged ballots enough to affect the outcome.
The Union challenged one voter, Stephen Jaunzemis, as a supervisor under Section 2(11) of the NLRA. Because both parties agreed he met that definition, his ballot was excluded.
The remaining three challenges involved employees in job titles that were listed as eligible in the parties' Stipulated Election Agreement, but which the Union argued had been removed from the bargaining unit through an informal email exchange the parties had after an earlier certification of the same unit. The Union pointed to Brom Machine & Foundry Co., arguing that a decertification election must cover the same unit the union actually represents, even if a later stipulation describes the unit differently. The Employer countered that the email was only a tentative agreement never finalized in a signed contract, and that the parties' subsequent, unambiguous stipulation controlled, citing Desert Palace, Inc. The Regional Director agreed with the Employer, finding no case law extending Brom's rule to situations where the unit was allegedly altered by something short of a signed collective bargaining agreement. Relying on the principle from Barceloneta Shoe Corp. that election agreements are binding contracts, the Director ruled that the stipulation's unit description controlled and ordered the three ballots opened and counted.
On the Union's objections, the Director deferred ruling on an objection concerning a separate voter, Rebecca Helgeson, since opening the three now-eligible ballots could moot the issue. A second objection, alleging the Employer improperly assisted the decertification effort, was overruled. The only evidence offered was that the petition listed the Employer's address and email as the petitioner's contact information, which the Director found fell far short of showing the kind of active assistance, such as the notarization and processing help condemned in Am. Linen Supply Co., needed to taint an election. Under the standard described in Professional Transportation, Inc., the Union failed to meet its burden of presenting specific evidence sufficient to warrant a hearing.
The Director ordered the three ballots opened and counted and a revised tally prepared, with a further decision on objections to follow if Helgeson's ballot proves determinative.
Significant Cases Cited
Brom Machine & Foundry Co., 227 NLRB 690 (1977): In a decertification election, the unit must match the one actually represented by the incumbent union, even if a later election agreement describes it differently.
Desert Palace, Inc., 337 NLRB 1096, 1097 (2002): When a stipulated election agreement expresses the parties' intent in clear, unambiguous terms, the Board will simply enforce it as written.
Barceloneta Shoe Corp., 171 NLRB 1333, 1343 (1968): Parties to an election agreement are bound by its material terms because such agreements are contracts.
Professional Transportation, Inc., 370 NLRB No. 132 (2021): An objecting party bears the burden of presenting evidence sufficient to raise substantial and material factual issues to warrant a hearing.
Am. Linen Supply Co., 297 NLRB 137 (1989): A withdrawal of recognition was tainted where the employer provided more than ministerial assistance, such as furnishing forms and notaries during work time.
The Milton Hershey School, 04-RC-371419 (Unpublished Board Decision)
The Board denied the Employer's request for review of a Regional Director's decision directing an election and certifying a union to represent employees at the Milton Hershey School, finding that the request raised no substantial issues warranting review.
The Board held that the Regional Director acted properly under Section 102.64(a) of the Board's Rules and Regulations when she deferred litigation over whether the facility's Telecommunicator Leads qualify as supervisors, rather than resolving that question before the election. Member Mayer joined this part of the ruling but noted he was applying the rule as it currently stands without weighing in on whether the underlying policy was correctly adopted.
The Board also rejected the Employer's argument that the Regional Director lacked authority to use her delegated powers during a period when the Board itself lacked a quorum. Citing its recent decision in Satellite Healthcare (Santa Rosa), the Board found this argument foreclosed.
Significant Cases Cited
Satellite Healthcare (Santa Rosa), 374 NLRB No. 25 (2026): Held that a Regional Director may lawfully exercise delegated authority even during a period when the Board lacks a quorum.