In a decision issued on the last day of Member Ring’s term, the NLRB ruled that an employer’s failure to provide the union with home phone numbers for five employees did not warrant setting aside the employer’s election victory. In MVM, Inc., 372 NLRB No. 32, the Board held that omitting the numbers for only five of the 92 employees while providing cell phone numbers for all employees “substantially complied” with the voting list requirements set forth in the Board’s Rules and Regulations and the parties’ stipulated election agreement.
The Board’s decision was made on a Request for Review filed by the employer, MVM. MVM, a federal contractor providing security services, had prevailed in a mail ballot election by a vote off 34-15. However, the NLRB’s Regional Director in Phoenix set aside the election and ordered a rerun based on MVM’s failure to provide home phone numbers for five employees.
Two Republicans on a three-member NLRB panel ruled that the omission did not warrant a set aside because the union still had multiple ways to contact voters and the five employees at issue would not affect the outcome of the election. “Here, where the union had the names, home addresses, and cell phone numbers of the five voters at issue, we find that the union did not suffer substantial prejudice to it’s ability to inform eligible voters of its arguments for union representation as a result of the Employer’s commission.”
Board Chairman McFerran dissented, finding that MVM’s failure to disclose the numbers amounted to “gross negligence.” Significantly, with the departure of Member Ring on December 16, 2022, there is no longer an opportunity for a Republican majority to overrule a dissenting Democrat. Democratic Members will now control all panels until Member Ring’s seat is filled, which likely will not happen until the second half of 2023.