NLRB Finds Solicitation of Mail-In Ballots Could Set Aside an Election

In expanding upon its prior holding in Fessler & Bowman, Inc., 341 NLRB 932 (2004) that the actual handling or collection of a mail-in ballot constitutes objectionable conduct to encompass mere offers to do so in Professional Transportation, Inc., the Board is sending a clear signal that it will protect the integrity of its mail-in ballot elections, which have become more popular during the COVID-19 pandemic.

In particular, in Professional Transportation, Inc., in April 2020, the Union filed a petition seeking to represent certain employees of Professional Transportation, Inc. (Employer) at multiple railyards in California and Nevada. The election was conducted by mail, and ballots were mailed to 113 eligible voters, 42 of whom voted for and 27 of whom voted against representation by the Union, with 5 nondeterminative challenged ballots being cast. Following the election, on June 16, 2020, the Employer filed several objections, one of which alleged that Union representatives contacted eligible voters and offered to collect and mail their ballots. In support of this objection, the Employer made an offer of proof that the Union solicited the mail-in ballots of two employees which the Regional Director concluded was insufficient to warrant a hearing as a matter of law and failed to establish a prima facie case of objectionable conduct under existing precedent.

On review, although the Board affirmed the Regional Director’s decision, it held that the solicitation of mail ballots does, indeed, constitute objectionable conduct in a Board election. However, in determining whether impermissible offers to solicit mail-in ballots warrant setting an election aside, the Board majority found it relevant to consider evidence of: (1) the number of unit employees whose ballots were solicited; (2) the number of unit employees who were aware of ballot solicitation; and (3) whether a party engaged in a pattern or practice of solicitation.

Applying this new rule to the facts of Professional Transportation, Inc., the Board first noted that solicitation of mail-in ballots casts doubt on both the integrity of the election and the secrecy of the ballots and also suggests to voters that the soliciting party, here, the Union, is somehow “officially” involved in conducting the election thereby undermining the Board’s “R Case” authority in this regard. However, despite these salient observations, the Board majority, Member Emanuel, dissenting, declined to set aside the election because, in its view, the evidence failed to establish that an “outcome determinative” number of voters was affected by the Union’s misconduct which, at most, affected only two voters, in an election where the Union prevailed by at least 10 votes (42-27, with 5 nondeterminative challenged ballots).

Practical Impact of Professional Transportation, Inc.

As mentioned above, with COVID-19 still potentially influencing NLRB Regional Directors to either convince the parties to stipulate to, or, failing such stipulation, notice and direct that elections be conducted by mail-in ballot, the Board’s new rule announced in Professional Transportation, Inc., expands the scope of objectionable misconduct to include the mere offer to handle or collect mail-in ballots and heightens the importance for employers to either: (1) negotiate such prohibitions into any Stipulated Election Agreement entered into by the parties; or (2) if unsuccessful in such negotiations, be appropriately vigilant in ascertaining whether “outcome determinative” numbers of its employee-voters are affected by any such solicitations made by the union and, thereafter, incorporate evidence of that misconduct into pertinent declarations or offers of proof submitted in support of its objections.

Additionally, in light of Chairperson McFerran’s observation that it is “time for the Board to reevaluate its historic preference for manual elections,” with new appointments to be made by the Biden administration, there could be a broadening by the Board beyond manual elections to include mail-in, telephonic, and/or electronic voting in the future.