NLRB Says Solicitation of Mail Ballots is Objectionable Conduct, Could Negate Election Results

The National Labor Relations Board (NLRB or the Board) held that solicitation of mail ballots is objectionable conduct during a NLRB-conducted election. The Board further held that an election would be set aside if the evidence establishes that a party’s ballot solicitation affected a determinative number of voters – i.e., a number of voters greater than or equal to the winning party’s margin of victory.

In Professional Transportation, Inc., the union won a mail-ballot election, 42-27, with five non-determinative challenged ballots. Following the election, the employer filed objections to the election. One of the objections alleged that union representatives called and texted two employees and offered to collect and mail their ballots. The Regional Director overruled the objections without an evidentiary hearing. The employer appealed to the Board.

It is established Board law that it is objectionable conduct for a party to “collect or otherwise handle” employee mail ballots. But, prior to this case, the Board had not reached whether the solicitation of mail ballots by party to an election constituted objectionable conduct. The Board reasoned that a party’s solicitation of mail ballots creates the appearance of irregularity in the NLRB’s election procedures. For example, by soliciting mail ballots a party effectively asks the voter to disregard the NLRB’s instructions accompanying the mail ballot, which instruct the voter not to permit any party to handle or collect the ballot. Moreover, solicitation suggests to employees that the soliciting party is involved in running the election, which the Board has previously found to be incompatible with the agency’s responsibility for assuring properly conducted elections.

But the Board further held that it will set aside the election results only where the evidence shows that a determinative number of voters were affected by the solicitation. Here, the employer’s offer of proof, if credited at a hearing, would establish that the union’s mail-ballot solicitation affected two voters – the employer did not suggest the union engaged in a pattern or practice of solicitation. Thus, the union’s conduct could not have affected the outcome of the election in which the union prevailed by at least 10 votes – the 15-vote margin less the possibility that the five unresolved challenges were votes for the employer. Accordingly, the Board found that while the union engaged in objectionable conduct, the Regional Director was correct to overrule the employer’s objections because the union’s conduct did not affect the outcome of the election.

Takeaways: Employers can take a couple of lessons from this case. First, and most obviously, employer representatives should not offer employees with help to complete or collect their ballot. Second, though mail-ballot solicitation is objectionable conduct, the Board will only set aside the election results if it affected a sufficient number of voters – either through direct evidence or evidence of “pattern or practice” – to alter the outcome of the election.