NLRB finds solicitation of mail ballots can be objectionable conduct

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.