Ncr Corporation v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2016 Decided November 1, 2016
No. 15-1230
NCR CORPORATION ,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 15-1248
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Howard M. Bloom argued the cause and filed the briefs for
petitioner.
Kyle A. deCant, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief was
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Robert J. Englehart, Supervisory
Attorney.
Before: ROGERS and TATEL, Circuit Judges, and EDWARDS,

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Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS .
ROGERS , Circuit Judge: NCR Corporation (“NCR”)
petitions for review of the decision and order of the National
Labor Relations Board that it violated section 8(a)(5) and (1) of
the National Labor Relations Act (“Act”), 29 U.S.C. § 158(a)(5)
& (1) (2012), when it refused to bargain with the Union after a
mail ballot election. NCR contends that the Board abused its
discretion by refusing to consider seven late-received ballots
because enforcement of its decision and order would result in
the disenfranchisement of an outcome-determinative number of
voters and negatively affect the integrity of the election,
requiring NCR to recognize and bargain with a unit that may not
represent a majority of employees who cast valid ballots. Board
precedent, NCR maintains, establishes that where an election
irregularity occurs resulting in possible disenfranchisement of
a determinative number of votes, the election should be set aside
and a re-run of the election conducted. NCR also contends that
the Board “improperly exalted declaring the final result of the
election over the Board policy to afford employees the broadest
participation in election proceedings.” Pet’r’s Br. 11-12. For
the following reasons, we deny the petition for review and grant
the Board’s cross-application for enforcement.
I.
The facts are undisputed. On June 9, 2014, the International
Brotherhood of Electrical Workers Local 2222 (“Union”) filed
a petition for Board certification as representative of certain
NCR employees. Thereafter, NCR and the Union signed a
Stipulated Election Agreement calling for a mail ballot election.
Paragraph 4 of the Agreement stated:

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The election will be conducted by mail. . . . Voters
must return their mail ballots so that they will be
received in the National Labor Relations Board,
Region 01 office by close of business on August 4,
2014. . . . [Ballots] will be counted at the Region 01
office . . . at 10:00 AM on August 5, 2014.
On July 9, 2014, a Notice of Election was mailed to forty-one
employees whom NCR had determined were eligible to vote in
the election. The Notice added the bold-faced text:
The election will be conducted by mail. . . . Voters
must return their mail ballots so that they will be
received in the National Labor Relations Board,
Region 01 office by close of business on Monday,
August 4, 2014. . . . [Ballots] will be counted at the
Region 01 office . . . at 10:00 AM on Tuesday, August
5, 2014.
The ballots were mailed on July 21, 2014.
By close of business on August 4, 2014, twenty-eight
ballots had been delivered to the Region 01 office. It was
agreed to delay commencement of the count from 10:00 AM to
11:00 AM on August 5, 2014 in order to consider any additional
ballots arriving with that day’s mail. Three more ballots arrived
on August 5, and the count began at 11:00 AM. The Union won
the election by a vote of seventeen to fourteen. All thirty-one
ballots were found to be valid; none was challenged. Two
workdays later, on August 7, 2014, seven additional ballots were
delivered to the Region 01 office. Five were postmarked from
Providence, Rhode Island on July 31; one from Brockton,
Massachusetts on August 1; and one from Boston,
Massachusetts on August 4.

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On August 8, 2014, NCR requested that Region 01's Acting
Regional Director open and count the seven late-received
ballots. The Union objected. The Acting Director denied
NCR’s request, and NCR filed objections to the conduct of the
election. The Regional Director recommended that the Board
overrule NCR’s objections because “the conduct of the election
was in accord with established election mechanics; no employee
was misled as to the balloting requirements; and . . . a deviation
from the established procedure would place an unusually high
burden on the election process in general and prevent a prompt
conclusion to representation proceedings.” Reg. Dir. Decision
1 (Sept. 9, 2014) (“Reg. Dir.”). NCR filed exceptions. On April
2, 2015, the Board adopted the Regional Director’s findings and
recommendations and certified the Union as the collective
bargaining representative for the bargaining unit at NCR. NCR
Corp. & Int’l Bhd. of Elec. Workers, Local 222, 01-RC-130289
(Apr. 2, 2015) (“Bd. Dec.”).
When NCR refused to bargain, the Union filed an unfair
labor practice charge, and a complaint and notice of hearing
alleged that NCR violated section 8(a)(5) and (l) of the Act by
refusing to recognize and bargain with the Union. Upon the
filing of NCR’s answer admitting its refusal to bargain and
claiming the Board improperly certified the Union, the General
Counsel moved for summary judgment in this “straightforward
test of certification case.” Mem. in Supp. of Mot. for Summ. J.
& for Issuance of Bd. Decision & Order 1 (May 14, 2015).
Following NCR’s reply to an order to show cause, the Board
granted summary judgment and found NCR had violated section
8(a)(5) and (l) of the Act. The Board concluded that all of the
representation issues were or could have been litigated in the
representation proceedings and that NCR neither offered to
adduce newly discovered evidence nor alleged any special
circumstances that would require the Board to reexamine the
Regional Director’s decision. NCR Corp. & Int’l Bhd. of Elec.

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Workers, Local 222, 362 NLRB No. 146 (July 13, 2015). NCR
petitions for review.
II.
NCR contends that the Board abused its discretion in
overruling the objections to the conduct of the mail ballot
election where late-received ballots were not opened and
counted. Specifically, NCR maintains that the Board failed to
decide whether the seven voters who mailed their ballots in
accordance with the Notice of Election were possibly
disenfranchised, and in so doing, arbitrarily sacrificed voter
enfranchisement to administrative expediency. The voting
instructions were, NCR continues, “certain to confuse voters,
and thus, constituted an election irregularity.” Pet’r’s Br. 17.
So, the election should be set aside in accordance with existing
Board precedent, Garda World Security Corp., 356 NLRB 594
(2011), and Wolverine Dispatch, Inc., 321 NLRB 796 (1996).
Our review of the Board’s decision and order is limited, and
especially so in regard to representative elections where
“Congress has entrusted the Board with a wide degree of
discretion in establishing procedure and safeguards necessary to
insure the fair and free choice of bargaining representatives by
employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330
(1946); see Durham School Servs., LP v. NLRB, 821 F.3d 52, 58
(D.C. Cir. 2016); Serv. Corp. Int’l v. NLRB, 495 F.3d 681, 684
(D.C. Cir. 2007). The Board’s interpretation of the Act will be
upheld unless it “is not ‘reasonable and consistent with
applicable precedent.’” Serv. Corp. Int’l, 495 F.3d at 684
(quoting Fashion Valley Mall, LLC v. NLRB, 451 F.3d 241, 243
(D.C. Cir. 2006)). The Board’s findings of fact are conclusive
so long as “supported by substantial evidence . . . .” 29 U.S.C.
§ 160(e), (f) (2012). Because NCR “admit[ted] it refused to
bargain with the union, if the union was properly certified, then

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the Board’s order is supported by substantial evidence.” NLRB
v. Pinkerton’s Inc., 621 F.2d 1322, 1325 (6th Cir. 1980).
A.
NCR agreed to a mail ballot election and voluntarily entered
into a Stipulated Agreement setting forth the terms for the
conduct of the election. The Agreement provided, and the
accompanying Notice to employees stated, that the Board would
mail ballots to employees on July 21, 2014 and that “[v]oters
must return their mail ballots so that they will be received in the
[] Board Region 01 office by close of business” on August 4,
2014. Both the Agreement and Notice specified: “The mail
ballots will be counted at the Region 01 office” at 10:00 AM on
August 5, 2014. Consistent with the Agreement, the Board
Agent opened and counted the thirty-one ballots received by the
time of the count. Nonetheless, NCR contends the Regional
Director should have counted the seven additional ballots that
arrived two days later because the postmark dates show
employees sent them in sufficient time for them to have been
received by August 4 even if they did not arrive until two days
after the count. NCR maintains that because the Agreement and
Notice stated only that ballots must be mailed so that they will
be received by August 4, not that they had to arrive by that date,
all that was required of employees was to mail their ballots
“early enough, in their reasonable estimation, to be received at
the [Region 01 office] by August 4.” Pet’r’s Br. 17.
The Board did not abuse its discretion in rejecting NCR’s
objections to the conduct of the election. First, the Board
concluded that the phrase “so that they will be received” by
August 4 was not misleading. It noted that sentence has been
used in Board notices for many years and makes clear that the
ballots must be received in the Region 01 office by the date set
in order to be counted. Second, NCR ignores the following
sentence, in both the Agreement and the Notice, that explicitly

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stated ballots would be counted on August 5, “clear[ing] up any
possible confusion as to when the voters had to have their
ballots arrive in order to be counted.” Bd. Dec. 1 (see Reg. Dir.
4). Third, Board precedent shows that while it has sometimes
counted ballots that arrive after a due date, it has consistently
refused to count ballots that arrived after the count. See Watkins
Constr. Co., Inc., 332 NLRB 828 (2000); Am. Driver Serv., Inc.,
300 NLRB 754 (1990); Kerrville Bus. Co., 257 NLRB 176
(1981). Likewise the NLRB Representative Casehandling
Manual, section 11336.5(c), is to the same effect, and NCR
bound itself to the Board’s post-election procedures in the
Stipulated Election Agreement, which states that “[a]ll
procedures after the ballots are counted shall conform with the
Board’s Rules and Regulations.”
NCR’s objections to the election stem, then, from a
misreading of the Agreement and Notice, and from a
disagreement with the Board’s policy on handling late-received
ballots. To the extent NCR maintains that voters compared the
text of the 2014 notice to notices sent in 2008 and 2010 and
determined that the difference in wording was meaningful,
NCR proffered no evidence of confusion and its view is facially
unpersuasive. The Board points out that many notices cited by
NCR contain identical text or simply state the same
requirements in different terms and would prevent counting late-
received ballots.
As regards the Board’s precedent, NCR contends that the
cases cited by the Board, as well as the Board’s subsequent
decision in Classic Valet Parking, Inc., 363 NLRB No. 23
(2015), are distinguishable because they did not involve an
election irregularity. NCR instead points to the Board’s
unpublished decision in MCS Consultants, Inc., 29-RC-11339
(Sept. 25, 2006), where “[i]n light of the unique circumstances,”
when only two votes of a potential six total were timely

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received, the Board ordered the opening and counting of ballots
received after votes had been tallied, so long as the ballots were
timely mailed. MCS Consultants, Inc., 29-RC-11339 at *2. In
Classic Valet, however, the Board explained that MCS
Consultants “is neither precedential nor consistent with the
Board’s established rule on late-arriving mail ballots.” Classic
Valet Parking, Inc., 363 NLRB at *1 n.2 (2015).
The Board’s adherence to the parties’ stipulated agreements
as to phrasing of the instructions and the ballot count date does
not constitute an election irregularity. See Kirsch Drapery
Hardware, 299 NLRB 363, 364 (1990). Party stipulations
governing representation proceedings are binding “absent a
showing of ‘changed or unusual circumstances. . . .’” Comput.
Assoc. Int’l v. NLRB, 282 F.3d 849, 852 (D.C. Cir. 2002)
(quoting Micro Pac. Dev. Inc. v. NLRB, 178 F.3d 1325, 1335
(D.C. Cir. 1999)). Moreover, the Board need not find an
election by mail invalid “whenever a potentially decisive
number of votes, no matter how small, is lost through the
vagaries of mail delivery.” J. Ray McDermott & Co., Inc. v.
NLRB, 571 F.2d 850, 855 (5th Cir. 1978). Such an approach
“might unduly deter the use of mail balloting in cases like this
in which a mail election . . . might prove more representative of,
and fairer to, the voting employees.” Id. Here, the Board
counted thirty-one ballots of forty-one eligible voters, a 76%
participation rate. This is a higher percentage than in Antelope
Valley Bus Co., where the court concluded the petitioner had
failed to show an election was invalid when some voters claimed
not to have received their mail ballots, but 66% of the eligible
voters successfully voted. Antelope Valley Bus Co. v. NLRB,
275 F.3d 1089, 1095-96 (D.C. Cir. 2002). Absent some
evidence of misconduct, NCR fails to meet its “heavy burden”
of showing that the election was improper. Id. at 1096 (quoting
Pinkerton’s Inc., 621 F.2d at 1324).

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The Board, further, was under no obligation to discuss the
decisions on which NCR relies where “the grounds for
distinction are readily apparent.” Id. at 1092. In Garda World
Security Corp., the Board found an election irregularity where
a Board agent closed the first of two polling sessions early and
potentially disenfranchised voters who had arrived during the
scheduled polling hours but left without voting when the agent
told them their ballots would be subject to challenge. Garda
World Sec. Corp., 356 NLRB 594, 594 (2011). In Wolverine
Dispatch, Inc., polls were temporarily closed in the middle of a
scheduled polling session. Wolverine Dispatch, Inc., 321 NLRB
796, 796 (1996). Finding that an outcome determinative number
of voters could have been disenfranchised by this unscheduled
closing, the Board set aside the election. Id. at 797. Of course,
election irregularities are not limited to unscheduled closings of
the polls. But here the Board counted all of the ballots that were
received by the Notice deadline, and counted those ballots
received the following day pursuant to the agreement of the
parties. Absent an election irregularity resulting from the
Board’s conduct of the election, the Board’s disenfranchisement
precedent is inapplicable.
B.
NCR’s challenge to the content of the Agreement and
Notice reflects, in effect, a disagreement with the Board’s policy
on late-received mailed ballots. Although the Agreement
approved by the Regional Director did not use the specific
phrasing proposed by NCR, NCR never objected either to the
changes or to the return or ballot count dates prior to filing its
petition for review with this court. See NLRA § 10(e), 29
U.S.C. § 160(e). Because pre-election agreements promote the
prompt and certain completion of representation proceedings,
the Board, with court approval, declines to entertain challenges
to the parties’ chosen election date after the fact. See Cmty.
Care Sys. Inc., 284 NLRB 1147, 1147 (1987); NLRB v. Hood

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Furniture Mfg. Co., 941 F.2d 325, 330-31 (5th Cir. 1991); Van
Leer Containers, Inc. v. NLRB, 841 F.2d 779, 787-88 (7th Cir.
1988). The Board’s long-established policy is based on the view
that “otherwise an election could be converted from a definitive
resolution of preference into a protracted resolution of
objections disregarded or suppressed against the contingency of
an adverse result.” A.J. Tower, 329 U.S. at 330; see Reg. Dir.
6 (Sept. 9, 2014).
The heart of NCR’s argument thus appears to be that the
Board arbitrarily declined to permit the late-received,
determinative mailed ballots to be counted because only two
days had elapsed after the votes were counted and postmarks
showed these ballots were mailed prior to the August 5 date
when the ballots were to be counted. The Board’s failure to
explain why counting these seven ballots would have interfered
with the prompt completion of the election, NCR contends, was
an abuse of discretion. NCR notes that the Board
accommodates postal delays in other circumstances, accepting
objections to election results postmarked no later than the day
before the due date regardless of when the objections are
actually delivered. See 29 C.F.R. § 102.111(b). NCR adds that
the Board generally asks that eligible voters wait a week from
the mailing date before contacting it about missing ballots to
allow the Postal Service adequate time to make deliveries,
acknowledging the potential for postal delays with respect to the
initial delivery of ballots that therefore necessitated a longer
window to return ballots than was allowed for here.
The Board’s policy of having a final ballot count at the time
the ballots are counted is long established and well supported by
the policy considerations recounted in A.J. Tower, 329 U.S. at
331. These other policies simply highlight that the Board has
taken into consideration timing issues in different
circumstances, as distinct from showing that the Board was

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unreasonable in not considering a material factor, particularly
when the Notice of Election was not ambiguous about the return
or ballot count dates. NCR initially could have requested a later
date for the ballot count. See Bd. Dec. 1 (see Reg. Dir. 6).
Additionally, NCR’s interpretation would require ballots to be
counted regardless of when they were actually received, even if
weeks or months after the scheduled date of the count had
passed. And “individualized determination[s]” of whether
ballots were mailed reasonably far enough in advance “would
prove time-consuming and potentially lead to extensive post-
election litigation.” NLRB v. Cedar Tree Press, Inc., 169 F.3d
794, 797 (3d Cir. 1999).
The Board’s interpretation, based on the balancing of
conflicting interests in affording employees the broadest
participation in election proceedings while still protecting
against “delay and uncertainty,” see Abbott Ambulance of Ill. v.
NLRB, 522 F.3d 447, 451 (D.C. Cir. 2008), is consistent with its
precedent. It furthers an election process that allows the parties
potentially to begin collective bargaining the day after the
ballots are counted. See Monte Vista Disposal Co., 307 NLRB
531, 533 (1992). NCR’s interpretation could shift the balance
of interests chosen by the Board. Whether the Board’s finality
concerns might be mitigated under a mail ballot procedure
providing a single drop-dead date of the start of the ballot count,
see Oneida Cty. Cmty. Action Agency, Inc., 317 NLRB 852,
852-53 (1995) (Member Truesdale, concurring), remains to be
seen. That determination is for the Board, not the court. See
Antelope Valley Bus Co., 275 F.3d at 1095.
Accordingly, we deny the petition for review and grant the
Board’s cross-application for enforcement of its Order.

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