Union Elections by Mail — Mail-Ballot Solicitation

By Gerard Morales

In a very recent case, the National Labor Relations Board (“NLRB” or “Board”) confronted the issue of whether a party engages in objectionable conduct if, during a union election campaign, it engages in mail-ballot solicitation. The case is of interest to employers given the introduction of laws that favor and promote union organizing (see March 15, 2021 Alert discussing the PRO Act, available here) and the number of union elections that are being conducted by mail by the NLRB.

It has been a well-established principle in union election law that the NLRB must maintain and protect the integrity and neutrality of its election procedures. The favored method of conducting union elections has been the manual election, supervised by NLRB agents who maintain personal custody of unmarked ballots at all times and have the responsibility of maintaining the integrity of the election process. However, for practical reasons, in a number of circumstances, the NLRB authorizes the conduct of union elections by mail ballot (e.g., employees are dispersed in many different locations, which make the manual election impractical). In order to maintain the integrity of the election process, the NLRB has developed specific and strict procedures, outlined in its Casehandling Manuals, designed to safeguard the integrity of mail-ballot elections. Fessler & Bowman, Inc., 341 NLRB 932 (2004).

In Professional Transportation, Inc., 370 NLRB No. 132 (June 9, 2021), the union had won a mail-ballot election by 10 votes. The employer filed objections seeking to have the NLRB set aside the election, alleging that union agents had engaged in mail-ballot solicitation. In support of its allegations, the employer presented offers of proof that two employees had received calls from union agents offering to collect their mail ballots.

In its analysis, the NLRB emphasized that mail-ballot solicitation by a party to a union election “undermines the Board’s principal assurance to the voters that it alone conducts the election and thus reasonably casts doubts on the election’s integrity.” The Board also noted that "mail-ballot solicitation suggests to employees that the soliciting party is involved in running the election, which the Board has found incompatible with its responsibility for assuring properly conducted elections.” Alco Iron & Meta., 269 NLRB 591 (1984).

In its unanimous decision, the Board held that mail-ballot solicitation by a party constitutes objectionable conduct. However, such solicitations would result in setting aside the election only where the evidence shows that a determinative number of employees were affected.

In this case, since the employer could only show that two employees had received the solicitations and since the union had won by 10 votes, the evidence was insufficient to set aside the election.