The Trustees of Columbia University in the City of New York

National Labor Relations Board - Board Decisions

Dec 16, 2017

365 NLRB No. 136 (N.L.R.B. 2017)

365 NLRB No. 136
NOTICE: 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.
The Trustees of Columbia University in the City of
New York and Graduate Workers of Columbia-
GWU, UAW, Petitioner. Case 02–RC–143012
December 16, 2017
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The National Labor Relations Board, by a three-
member panel,1 has considered objections to an election
held on December 7–8, 2016, and the Hearing Officer’s
report recommending disposition of them. The election
was conducted pursuant to a Decision and Direction of
Election. The tally of ballots shows 1602 for and 623
against the Petitioner, with 647 challenged ballots, an
insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions, has adopted the Hearing Officer’s findings2 and

1 Member Kaplan is recused, and has taken no part in the considera-
tion of this case.
2 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
We agree with the Hearing Officer’s assessment that the Region’s
handling of voter identification requirements, while not “optimal,” does
not constitute grounds for setting aside the election.
Although the Employer and the Petitioner initially agreed in a tele-
phone conference call that employees would be required to present their
identification before voting, the Regional Director later found that it
would be prejudicial to voters caught unawares to impose such a previ-
ously unannounced requirement at the polls. Thus, as the Regional
Director advised the parties, neither the Supplemental Decision and
Order nor the Notice of Election stated that there was a voter identifica-
tion requirement. In these circumstances, the Regional Director’s deci-
sion was reasonable—and well within her broad discretion in arranging
and conducting elections. See San Diego Gas & Electric, 325 NLRB
1143, 1144 (1998).
During the election, in turn, there were some inconsistencies in the
Region’s voter-identification procedures: in certain instances Employ-
er observers were permitted to request (though not require) identifica-
tion; in other instances, they were not. But, contrary to our dissenting
colleague, these inconsistencies did not make the election a “shambles”
or require that it be set aside.
As the Board has explained:
There is no “per se rule … that elections must be set aside following
any procedural irregularity.” The test for setting aside an election
based on regional office conduct is whether the alleged irregularity
raised “a reasonable doubt as to the fairness and validity of the elec-
tion.” The objecting party’s showing of prejudicial harm must be
more than speculative to establish that a new election is required.
recommendations, and finds that a certification of repre-
sentative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Graduate Workers of Columbia-GWU,
UAW, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All student employees who provide instructional ser-
vices, including graduate and undergraduate Teaching
Assistants (Teaching Assistants, Teaching Fellows,
Preceptors, Course Assistants, Readers, and Graders):
All Graduate Research Assistants (including those
compensated through Training Grants) and All De-
partmental Research Assistants employed by the Em-
ployer at all of its facilities, including Morningside
Heights, Health Sciences, Lamont-Doherty, and Nevis
facilities, but excluding all other employees, guards,
and professional employees and supervisors as defined
in the Act.
Dated, Washington, D.C. December 16, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting in part.
At this juncture in this case, the Board is considering
objections to a university-wide election held on Decem-
ber 7–8, 2016, among a large assortment of student assis-
tants enrolled at Columbia University. Like my col-
leagues, I agree there is no merit in most of the objec-
tions.1 However, there was a significant irregularity in

Guardsmark, LLC, 363 NLRB No. 103, slip op. at 4 (2016) (footnotes citing
cases, omitted).
Here, the Employer has failed to carry its burden. The Employer’s
evidence shows that the Region’s inconsistent handling of voter-
identification procedures potentially affected just four ballots at most.
The election covered a unit of over 4,000 eligible voters, in which the
Petitioner won by a 979-vote margin. In these circumstances, we find
no reasonable doubt as to the fairness and validity of the election.
1 I have previously expressed my disagreement with the finding that
the petitioned-for student assistants in the instant case are “employees”
within the meaning of Sec. 2(3) of the National Labor Relations Act
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the election that, unfortunately, cannot be undone, which
I believe has the unfortunate consequence of requiring a
rerun election. Specifically, the record reveals there
were multiple inconsistencies—the full extent of which
cannot even be determined now—regarding whether stu-
dents would be required to present documentation of
their identity at the polls, i.e., voter ID. The voter docu-
mentation problems in this case have nothing to do with
voter identification laws in various states, which have
given rise to substantial controversies.2 Rather, before
the election, the parties reached an agreement regarding
voter documentation; subsequently, the Region sent an
email advising parties that the Regional Director had
decided that voter documentation could not be required;
and during the election itself, different Board agents
handled voter documentation in a manner that was incon-
sistent with the parties’ agreement, the Region’s email,
or both. In short, whether or not anyone thinks voter
documentation was appropriately agreed upon, or merely
advisable, or required, or a terrible idea, this election
involved discrepancies and inconsistent treatment that
rendered it a shambles so far as voter identification was
concerned.

(NLRA or Act). See Columbia University, 364 NLRB No. 90, slip op.
at 22–34 (2016) (Member Miscimarra, dissenting). I continue to be-
lieve that the student assistants are not employees, but the “employee”
status of the petitioned-for student assistants is not before the Board at
this juncture.
With respect to the Employer’s first objection claiming that Earl
Hall voters had to pass by known Petitioner agents en route to the poll-
ing place, I agree with my colleagues that the actions of the Petitioner’s
agents during the election were not objectionable. Previously, I have
observed that “the mere presence of a party’s agents in a place employ-
ees must pass in order to vote constitutes objectionable conduct suffi-
cient to set aside an election.” See Longwood Security Services, Inc.,
364 NLRB No. 50, slip op. at 6 (2016) (Member Miscimarra, dissent-
ing). Here, in contrast, students did not have to pass directly by the
Petitioner’s agents to vote. Upon entering the main floor foyer area of
Earl Hall through the building’s front door, students would immediately
turn to the right to ascend a staircase leading up to the polling area.
The Petitioner’s agents were present in the main floor foyer area only
periodically during scheduled observer shift changes, and they would
have been visible only were students to look to the left and further into
the room before heading upstairs. In any event, both agents would have
been unknown to most voters and thus would have been unrecognizable
to most as the Petitioner’s agents. At no time did the Petitioner’s
agents either impede access to the front door of Earl Hall or ascend the
staircase to access the polling place during voting. Further, the foyer
was not visible from the polling place.
2 See, e.g., New York Times, “How States Moved Toward Stricter
Voter ID Laws,” Nov. 3, 2016 (https://www.nytimes.com/interactive/
2016/11/03/us/elections/how-states-moved-toward-stricter-voter-id-
laws.html?mcubz=0); Washington Post, “Do voter identification laws
suppress minority voting? Yes. We did the research,” Feb. 15, 2017
(https://www.washingtonpost.com/news/monkey-cage/wp/2017/
02/15/do-voter-identification-laws-suppress-minority-voting-yes-we-
did-the-research/?utm_term=.b62964d6b040).
In these circumstances, I believe the Board has no rea-
sonable alternative than to order a rerun election. In var-
ious contexts, I have emphasized the importance of up-
holding the integrity of the Board’s election procedures.
See, e.g., Patient Care, 360 NLRB 637, 638–639 fn. 4
(2014) (Member Miscimarra, concurring); Magnum
Transportation, Inc., 360 NLRB 1093, 1094 (2014)
(Member Miscimarra, concurring). The situation pre-
sented here—where we know voters were treated incon-
sistently at different times and in different polling places
regarding their fundamental right to participate in the
election—strikes at the very heart of what the Board
must safeguard in every election: confidence that all
eligible voters have been given a fair opportunity to par-
ticipate in the election itself.
Accordingly, I believe the Board is required to order a
rerun election. Because my colleagues find otherwise, I
respectfully dissent as to this issue.
Background
The relevant facts are undisputed. During a November
21, 2016 conference call with the Petitioner and Region
2, all parties agreed that the Region would require either
“Government or Columbia issued ID” at the election.
Subsequently, in an email dated December 6, 2016, As-
sistant Regional Director Nicholas Lewis stated: “This is
to confirm that presentation of voter ID will not be a re-
quirement in order for an individual to vote. As the
presentation of identification was not included in either
the Supplemental Decision or Notice of Election, the RD
has concluded it cannot be made to be a requirement.”
(Jt. Exh. 1).
During the election itself, the Board agents’ treatment
of voter identification was inconsistent. Assistant Direc-
tor of Employee Relations Mirian Stincone testified that
while acting as an Employer observer on December 7,
the first day of the election, she was advised by a Board
agent that she could not require identification as a pre-
requisite to allowing voters to cast their ballots, but she
was permitted to request it. Stincone found that doing so
facilitated the process and helped to ensure accuracy in
checking names off the voter list. However, when Stin-
cone arrived for her observer shift on December 8, the
second day of the election, a different Board agent ad-
vised her that she was not permitted to even request voter
identification. As a result, Stincone had to ask some vot-
ers to repeat their names multiple times to verify their
identity.
Similarly, Director of Labor Relations Idina Gorman
testified that, before she reported to her observer shift at
noon on December 7, Columbia Assistant Vice President
of Labor Relations and Client Services Dan Driscoll ad-
vised her that she could request identification from vot-
TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK 3
ers. She did so, and found that requesting identification
made the process smoother and more accurate given that
multiple voters had the same or similar names.3 Howev-
er, at 3:30 p.m. that day, a Board agent advised Gorman
that she could no longer request voter identification.
The record therefore establishes—and the hearing of-
ficer found—that the Region conducted the election con-
trary to the parties’ agreement to require voter identifica-
tion and in an uneven and inconsistent manner with re-
spect to the actual use of identification during polling.
Additionally, the hearing officer conceded that the use of
voter identification, when permitted, “facilitated the pro-
cess by helping the observers to find voters” on the voter
list. The hearing officer further conceded that “the pro-
cedures [the Region] employed were not optimal,” citing
the Region’s last-minute notice (the day before the elec-
tion) to the parties that voter identification could not be
required as well as its inconsistent treatment of identifi-
cation during the election.
Discussion
As noted above, I believe the Board must hold itself to
a high standard in conducting elections. Doing so is par-
ticularly important when the election involves a large,
complex bargaining unit like the one in the instant case.
Specifically, the Board must adhere to election proce-
dures that not only are fair, consistent, and free of irregu-
larities, but that also inspire confidence that this high
standard has been met. Election observers play a “signif-
icant role” in the process. Equinox Holdings, Inc., 364
NLRB No. 103, slip op. at 3 (2016) (Member Miscimar-
ra, dissenting). Observers “represent their principals,
carrying out the important functions of challenging vot-
ers and generally monitoring the election process,” and
they also “assist the Board agent in the conduct of the
election.” NLRB Casehandling Manual, Part Two (Rep-
resentation Proceedings), Sec. 11310.3. Importantly,
observers must be “satisfied as to the voter’s identity”
before that individual may receive a ballot. See NLRB
Casehandling Manual, Part Two (Representation Pro-
ceedings), Section 11322.1, para. 4–5; see also Equinox
Holdings, 364 NLRB No. 103, slip op. at 3–4 (Member
Miscimarra, dissenting) (the Board’s election procedures
“require each voter to identify him- or herself by name to
each observer”) (emphasis omitted).
In the instant case, inconsistent voter identification
procedures were employed at different times and in dif-
ferent polling locations; and no matter what procedures
were employed at particular times and places, they were
either inconsistent with the parties’ preelection agree-

3 A review of the voter list confirms that there were in fact multiple
voters with the same or similar names. See (Jt. Exh. 5).
ment (which required documentation to be presented by
each voter), or they were inconsistent with the Region’s
preelection email (which stated documentation could not
be required). As a result, we cannot determine whether
eligible voters may have been improperly turned away
and if so, how many, or whether ineligible individuals
may have been improperly permitted to vote and if so,
how many. This rampant confusion also necessarily un-
dermined the role played by election observers because
the record—sparse and incomplete though it is—
establishes there was no consistency regarding the man-
ner in which observers established the identities of vot-
ers, which raises reasonable concerns regarding the accu-
racy of those identifications.4 The two observer witness-
es also each testified that requesting voter identifica-
tion—when they were permitted to do so—facilitated the
process and improved accuracy.5 Consequently, the elec-
tion procedures followed here, which were applied in a
case that everyone understood would have great signifi-
cance, were deeply flawed, inconsistent, and arbitrary,
creating uncertainty as to the single most important issue
in every election: whether eligible voters were actually
permitted to participate in the election.
I will close with the same observation I made earlier:
this case does not involve any partisan questions about
whether voter ID documentation is a good idea or a bad
idea or should be required, optional, or prohibited. The
fact of the matter here is that the parties themselves
reached an agreement that was brokered by the Board’s
regional personnel; the agreed-upon procedures were
then changed by the Region prior to the election; and the
election was then conducted in a manner that was incon-
sistent both internally and with the parties’ agreement
and the Region’s subsequent instructions. There may be
cases where isolated deviations from appropriate proce-
dures would present a close question about whether the
election must be set aside based on “reasonable doubt as
to the fairness and validity of the election.” Polymers,
Inc., 174 NLRB 282, 282 (1969). However, in my view,
this is obviously not one of those cases.
CONCLUSION
Accordingly, as to the above issue, I respectfully dis-
sent.

4 At the vote count held on December 9, 2016, one challenged ballot
was impounded because a person with the same name had already been
checked off as having voted at another polling place. (Jt. Exh. 1).
5 Upon learning that election observers were not requesting voter
identification, one student voter even asked Stincone, “how do you
know I am who I say I am?” (Tr. 114).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Dated, Washington, D.C. December 16, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD