NLRB Finds Solicitation of Mail Ballots Can Be Objectionable Conduct

June 21, 2021

Not that long ago, nearly all National Labor Relations Board (NLRB) representation elections were conducted through a manual ballot process. More recently, particularly with the COVID-19 pandemic, such elections have been conducted by mail ballots. Most parties recognize it’s much more challenging to maintain the integrity and neutrality of the election process during a mail ballot election. In a recent decision, the Board held a party’s solicitation of one or more mail ballots constitutes objectionable conduct and may warrant setting aside a representation election.

Mail Ballot Elections

In April 2020, the United Electrical Radio and Machine Workers of America filed a petition to represent certain employees of Professional Transportation, Inc., at several railyards in California and Nevada. The parties entered into a stipulated election agreement that provided for an election by mail ballot. The ballots were mailed to employees on May 15, were to be returned to the NLRB by June 5, and were counted on June 10. Forty-two employees voted for the union, and 27 employees voted against the union, with five challenged ballots.

Professional Transportation later learned the union had engaged in solicitation of some mail ballots. Therefore, it filed an objection to the conduct of the election alleging union representatives called eligible voters and offered to collect and mail their ballots for them. In support of the objection, it submitted offers of proof with respect to two employees who would testify they were contacted by union reps with offers to help with the ballots and to collect the ballots from them.

Not surprisingly, the regional director overruled the objections and certified the election results. In doing so, the regional director ruled the objection didn’t warrant a hearing because mail ballot solicitation wasn’t objectionable conduct under NLRB precedent. In the alternative, the regional director found the employer’s offer of proof in support of the objection was insufficient to make out a prima facie (minimally sufficient) case of mail ballot solicitation.

The employer filed a request for review of the regional director’s decision. The NLRB granted the employer’s request for review and invited briefs.

Board Finds Ballot Solicitation Can Be Objectionable

In its decision on review, the NLRB noted a previous Board decision had held it was objectionable conduct for a party to collect or otherwise handle voters’ mail ballots because doing so would cast doubt on the integrity of the election process and undermine election secrecy. In the decision, the Board split, however, on whether the unsuccessful solicitation of employees’ mail ballots was also objectionable.

The NLRB noted its objective while conducting elections is to do so under conditions as nearly ideal as possible (commonly referred to as “laboratory conditions”). It stated it isn’t enough to protect the election procedures from actual interference. Even the appearance of irregularity in election procedures could cast doubt on the validity of an election and its result.

In previous cases, the NLRB had set aside elections despite the absence of evidence any party had actually touched a ballot when circumstances made it impossible to be certain the parties hadn’t done so. It also pointed out it had previously found objectionable conduct when during the course of an election,  the impression was conveyed to voters that the Board wasn’t in complete control of the election process.

The NLRB noted it has repeatedly acknowledged mail ballot elections are more vulnerable to the destruction of laboratory conditions than are manual elections. To safeguard the integrity of mail ballot elections, it stated it is imperative to adopt and apply rules to address irregularities in mail ballot elections when they are brought to its attention.

In addressing the issue of whether the solicitation of mail ballots is objectionable conduct, the NLRB stated such solicitation casts doubt on the integrity of the election and the secrecy of the employees’ ballots. It reasoned that when a party offers to collect a voter’s ballot, it effectively asks her to disregard the voting instructions that specifically direct her not to permit any party to handle or collect it.

The NLRB found permitting ballot solicitation undermines its principal assurance to the voters and parties that it alone conducts the election and thus reasonably casts doubt on the election’s integrity. It was also concerned that solicitation suggests to employees the soliciting party is officially involved in running the election, which the Board has found to be incompatible with its responsibility for ensuring properly conducted elections.

Determining When Elections Should Be Set Aside

After deciding the solicitation of mail ballots can be objectionable conduct, the NLRB struggled to determine under what circumstances an election should be set aside. It noted conduct by a party generally warrants setting aside an election only if it reasonably tends to interfere with employee free choice in the election.

The NLRB then stated the relevant question for ballot solicitation isn’t whether it causes fear among employees and interferes with free choice, but rather, whether it impugns the integrity of the election and casts doubt on the secrecy of the employees’ ballots. Therefore, while the Board held the solicitation of ballots by a party is objectionable conduct, it would set aside the election only if the evidence showed a determinative number of voters were affected by the conduct.

The NLRB noted appropriate evidence or factors to take into consideration when deciding whether a determinative number of voters were affected would include the number of unit employees whose ballots were solicited and the number who were aware of ballot solicitation. Evidence demonstrating a party engaged in the pattern or practice of solicitation (thus suggesting other employees in addition to those for whom direct proof of solicitation was available) would also be appropriate.

Finally, the NLRB decided the rule should be applied retroactively. When looking at the alleged objectionable conduct, it noted the employer’s offer of proof regarding the objection, if credited at a hearing, would show two employees had had their ballots solicited by the union. The objection, even with the offers of proof, wasn’t enough to allege sufficient misconduct to set aside the election.

An objecting party has a duty to furnish evidence or a description of evidence that, if credited at a hearing, would warrant setting aside the election. The employer’s offer of proof demonstrated two voters had had their ballots solicited but didn’t identify evidence of other voters who were solicited or that the solicitations of the two employees were disseminated to other unit employees, or that the union engaged in a pattern or practice of solicitation.

As a result, the conduct couldn’t have affected the election’s outcome because the union had prevailed by a minimum of 10 votes. Consequently, the Board affirmed the regional director’s decision, overruling the objections and certifying the union as the representative for the employees. Professional Transportation, Inc., 370 NLRB No. 132 (June 9, 2021).

Bottom Line

The NLRB recognized ballot solicitation could occur by either party, the employer or the petitioning union. If the employer were doing the solicitation, however, there may be other grounds on which its conduct could be found to be objectionable. Nevertheless, in this writer’s opinion, mail ballot solicitation is much more likely to be conduct engaged in by the union.

In the event an employer becomes aware of ballot solicitation by a union during a representation election, quickly collect evidence about both the scope of the solicitation and the knowledge of the solicitation by other employees. Evidence that the union engaged in a pattern of solicitation (for example by using a common script to solicit ballots) can be gathered to demonstrate other employees were in fact solicited. Only if the number of employees actually being solicited or who are aware of the solicitation is outcome-determinative will the objection likely be sustained and the election result set aside.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.