On June 9, 2021, the National Labor Relations Board held that a party’s solicitation of one or more mail ballots constitutes objectionable election conduct that may warrant setting aside an election.  Professional Transportation, Inc. and United Electrical, Radio, and Machine Workers of America, Local 1077, 370 NLRB No. 132 (2021).  A Board majority held that it is appropriate to require evidence that a determinative number of employees were affected in the case of mail-ballot solicitation by a party to the election.  Member Emanuel dissented on this point, concluding that elections should be set aside whenever a party is shown to have collected or solicited mail ballots, regardless of the number of such incidents or the number of voters affected.

On April 21, 2020, United Electrical, Radio, and Machine Workers of America, Local 1077 (Union) filed a petition seeking to represent certain employees of the employer.  The election was conducted by mail pursuant to a stipulated election agreement.  Of the 113 eligible voters, 42 voted for and 27 voted against representation by the Union, with 5 nondeterminative challenged ballots.  On June 16, 2020, the employer filed timely objections, claiming, among other things, that representatives of the Union called eligible voters offering to collect and mail their ballots.  In support of this objection, the employer submitted an offer of proof regarding alleged mail ballot solicitation of two employees.¹ 

The regional director overruled the employer’s objections without a hearing, holding that mail-ballot solicitation is not objectionable conduct under existing Board precedent.  The employer filed a request for review, which the Board granted with respect to the Board’s policy regarding mail-ballot solicitation as addressed in Fessler & Bowman, Inc., 341 NLRB 932 (2004).  In Fessler & Bowman, the Board split 2-2 on whether mail-ballot solicitation constitutes objectionable conduct.

In deciding that mail-ballot solicitation constitutes objectionable election conduct, the Board first noted that the solicitation of mail ballots casts doubt on the integrity of the election and the secrecy of employees’ ballots.  Indeed, as the Board noted, even the appearance of irregularity in election procedures may cast doubt on the validity of an election and its results.  In addition, the Board held that solicitation also suggests to employees that the soliciting party is officially involved in running the election, which the Board has found to be “incompatible with [its] responsibility for assuring properly conducted elections.”  Alco Iron & Metal Co., 269 NLRB 590, 591-92 (1984).

The Board explained that, because mail ballot solicitation involves conduct by a party, it would typically warrant setting aside an election only if the conduct reasonably tends to interfere with employee free choice in the election.  However, the Board held that even though mail ballot solicitation involves conduct by a party, the crucial question is whether it undermines the integrity of a Board-conducted election, and it does.  Thus, the Board held that the solicitation of ballots by a party is objectionable conduct that may warrant setting aside an election if the evidence shows that a determinative number of voters were affected by it.  The Board held that it is appropriate to consider both the number of unit employees solicited and the number of employees who were aware of the solicitation, as well as evidence demonstrating that a party engaged in a pattern or practice of solicitation.

In applying the law to the facts of this case, the Board held that, if the employer’s evidence was credited, the employer established that, at most, the Union’s mail-ballot solicitation affected only two voters.  Because the solicitation affected only two voters at most, the misconduct could not have affected the outcome of the election in which the Union prevailed by a minimum of ten votes.

Dissenting Member Emanuel stated that elections should be set aside whenever a party is shown to have collected or solicited mail ballots, regardless of the number of such incidents or the number of voters affected.  He took the position that merely deeming solicitation of mail ballots objectionable is insufficient because “[t]he integrity of mail ballot elections is simply too important and voter confidence and privacy cannot be protected unless the Board establishes more definitive consequences for engaging in such conduct.”

Takeaways

As the COVID-19 pandemic continues to require mail-ballot elections in many situations, this decision is particularly important.  For the first time, the Board has taken the position that the mere solicitation of the collection of ballots – without the actual handling of ballots – is objectionable conduct.  Employers should remain cognizant of the holding of this case as they counsel supervisors in communicating with employees during a mail-ballot election.