363 NLRB No. 23 NOTIC E: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Classic Valet Parking, Inc. andLocal 1102, Retail, Wholesale & Department Store Union, United Food and Commercial Workers, Petitioner. Case 29–RC–148399 October 23, 2015 ORDER DENYING REVIEW BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s Request for Review of the Regional Director’s Supplemental Decision on Objections, Order consolidating cases, and notice of hearing is denied as it raises no substantial issues warranting review. 1 In this mail-ballot election case, the Regional Director excluded from the tally of ballots 10 ballots not received by the Region until after the tally was completed. The Regional Director’s decision to exclude those ballots was consistent with established Board precedent and policy. See, e.g., Kerrville Bus Co., 257 NLRB 176, 177 (1981). For that reason, we find no basis upon which to grant the Employer’s request for review of the Regional Director’s further decision to overrule the Employer’s objection contending that the late-received ballots should be count- ed. Our dissenting colleague argues that we should make an exception in this case, and count the late-received ballots, under all the circumstances. Although we share our colleague’s view that the Board has a strong interest in effectuating employee choice, we believe that adher- ing to our established practice—which balances that in- terest with the interest in finality of election results—is the better approach here. The Board ’s rule alread y permits acce ptance of mail ballots arriving after the date they ar e due, whatever t he reason for the delay, as long as they are received before the scheduled ballot count. Thus, the rule provides a grace period for rece ipt of late ballots. At the s ame time, by excluding mail ball ots r eceived after the grace period expires, the Board’s rule effectuates the substantial poli- cy considerations favoring finality of election results. Absent that limitation, election results could well be de- layed for signif icant period s of time as mail ballots trick- le into the regional office. See generally Versail Mfg., 1 Pertinent portions of the Regional Director’s Supplemental Deci- sion on Objections, Order consolidating cases, and notice of hearing are attached as an appendix. Inc., 212 NLRB 592, 593 (1974) (discussing importance of promptly completing representation proceedings). We acknowledge that this approach creates the possi- bility, however remote, that determinative ballots could be excluded from a ballot count, but this alone is not a reason to set aside an election. See J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 855 (5th Cir. 1978), cert. denied 439 U.S. 893 (1978) (“It cannot be said that an election by mail is per se invalid whenever a potentially decisive number of votes . . . is lost through the vagaries of mail delivery.”), enforcing the Board’s Order at 227 NLRB 1347 (1977), including the deter mination to r eject three mail ballots that were potentially determinative but never received. 2 Dated, Washington, D.C. October 23, 2015 ______________________________________Mark Gaston Pearce, Chairman ______________________________________Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER MISCIMARRA, dissenting in part. I join my colleagues in denying review of the Regional Director’s decision to direct a mail ballot election. How- ever, I would grant review on the basis that the Employer has raised a substantial issue regarding the failure to count 10 ballots that were mailed by eligible voters prior to the June 2, 2015 deadline established by the Regional Director (with votes to be counted on June 4) but were receiv ed by the Re gion after th e Ju ne 4 c ount. Of the counted ballots, 10 were cast for the Petitioner, and 6 were cast against representation. Therefore, a lthough they arrived after the count, the 10 unopened ballots were equal to the larger of the votes cast for or against repre- sentation, they were potentially timely when mailed, and 6 of the unopened ballots, a determinative number, were postmarked 5 days or more before the count. In these circumstances, although the Board’s normal practice is to exclu de ballots receiv ed after the count is condu cted, I would grant review because such a large number of mail 2 There is no sug gestion here that the Region was in any way re- sponsible for the untimeliness of the ballots, or that the Board’s mail- ballot procedure was otherwise deficient. In addition, we note that MCS Consultants, Inc., 29–RC–11339 (Sept. 25, 2006), cited by our colleague, is neither precedential nor consistent with the Board’s established rule on late-arriving mail bal- lots.
