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Sharkey wins case at NLRB as reported by Law360

NLRB Official Says Union Tiebreaker Vote Must Be Counted

Law360 (November 19, 2020, 4:23 PM EST) -- A worker whose vote will break a tie in a union election at a Boston education nonprofit will have his ballot counted, a National Labor Relations Board official has ruled, rejecting the nonprofit's argument that the signature on the worker's ballot was not his own.

In a decision issued on Wednesday, NLRB Boston office acting director Paul Murphy said that while six employees who were recently laid off from College Bound Dorchester Inc. cannot vote because they don't have a reasonable likelihood of being rehired, Albert Quesada's ballot should count because the nonprofit didn't provide evidence of fraud.

"In addition to the lack of evidence of fraud involved in the submission of Quesada's ballot, I also conclude that the signature on the ballot is that of Quesada," Murphy wrote.

The election conducted over the summer ended in a tie, making Quesada's vote decisive to whether Service Employees International Union Local 888 will represent instructors, advisers and administrative employees who work at the nonprofit.

Murphy ordered Quesada's ballot to be opened and counted after the period for appealing the decision has expired and said he would consider objections the union made to the election if the union doesn't have a majority of votes once Quesada's ballot is counted.

The union filed its petition to represent College Bound Dorchester employees in June, and an NLRB-ordered election was conducted with mail-in ballots in July and August. The election ended in a six-to-six tie, with Quesada's ballot contested along with those cast by the laid-off employees.

Most of Murphy's decision focused on Quesada's ballot, the outer envelope of which College Bound Dorchester alleged was signed by someone other than the worker because the signature did not match those on other documents the nonprofit had on file.

In addition to noting that the NLRB has "repeatedly stressed" that instances of abuse in elections conducted with mail ballots are exceedingly rare, Murphy said practical realities like the uneven surface of the envelope Quesada signed likely made the signature "comparatively messier" than those on other documents he inked for the nonprofit.

Hersch Rothmel, an external organizer for SEIU Local 888, said the union helped ensure that all workers knew how to sign and submit their ballots and said Murphy was correct to reject the company's arguments seeking to negate the election.

"The employer challenged the rights of the employees to make their decision around unionization and representation and it was clear by the board's decision that those challenges were erroneous and were really meant to delay the wheels of justice," Rothmel told Law360.

As for the laid-off workers, Murphy said it is clear that they are not likely to be rehired soon and therefore cannot vote in the election. He said he reached that decision based on evidence collected during a separate unfair labor practice charge the SEIU local filed alleging College Bound Dorchester violated labor law by laying off the workers.

Murphy also rejected College Bound Dorchester's objections alleging the SEIU local improperly swayed voters by accusing the nonprofit of racist practices and of laying off employees in retaliation for the push to unionize. Murphy said that under a 1982 board decision called Midland National Life Insurance Co., the board generally does not set elections aside due to allegations that a party made misleading campaign statements.

Counsel for the parties did not immediately return requests for comment on the decision.

College Bound Dorchester did not immediately return a request for comment.

SEIU Local 888 is represented by Brendan Sharkey of D.S. O'Connor & Associates PC.

College Bound Dorchester Inc. is represented by Michael Maccaro of Murphy Hesse Toomey & Lehane LLP.

The case is College Bound Dorchester Inc. and Service Employees International Union Local 888, case number 01-RC-261667, before the National Labor Relations Board.

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