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Labor Board Error – Abuse of Discretion

By: Derek Hawkins//July 6, 2017//

Labor Board Error – Abuse of Discretion

By: Derek Hawkins//July 6, 2017//

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7th Circuit Court of Appeals

Case Name: Hanson Cold Storage Company of Indiana d/b/a Hanson Logistics, v. National Labor Relations Board

Case No.: 16-3617; 16-3671

Officials: FLAUM, KANNE, and HAMILTON, Circuit Judges.

Focus: Labor Board Error – Abuse of Discretion

Thirty‐seven employees of an Indiana employer voted in a union‐representation election. The employer and the union disputed two of the votes, a sufficient number to affect the outcome of the election. The employer argued that one vote should not count, claiming that the voter’s intent could not be discerned from the ballot; the union argued that another vote should not count, claiming that the voter was not employed by the employer at the time of the vote. The National Labor Relations Board rejected the employer’s argument and counted the first disputed vote as a vote in favor of representation. The Board then concluded that the second disputed vote was no longer outcome determinative of the election.

So it dismissed that dispute as moot and certified the union. The parties now contest the Board’s counting of the first disputed vote, a dispute that turns on the intent of a voter who produced a hopelessly unclear ballot. Because we find it impossible to divine the voter’s intent from the face of the ballot, we hold that the Board abused its discretion by counting that vote. We further hold that the Board erred by dismissing as moot the union’s challenge to the second disputed vote. For the foregoing reasons, we VACATE the Board’s certification decision; DENY the Board’s cross‐application for enforcement of its unfair‐labor practice order; and REMAND for proceedings consistent with this opinion.

Vacated and remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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