By Nelson Cary and Alex Ehler
In a political climate fraught with partisanship, rare instances of bipartisanship and even unanimity can be welcome events. For labor professionals on the management side, the NLRB’s June 9, 2021 decision in Professional Transportation, Inc. is likely to be doubly welcome, as the NLRB unanimously held that a union’s solicitation of mail ballots constitutes objectionable conduct in a Board election.
In particular, the evidence in the case was that union representatives had called Company employees and asked several questions. The question the NLRB focused on, however, was whether the employees needed help in getting the ballot “sent back,” which a reasonable employee could understand was an offer to “collect the ballot in order to mail it.”
The NLRB unanimously held that soliciting the employee in this manner was objectionable conduct and could be enough to set aside the election. First, solicitation of mail ballots often involves direct disregard for voting instructions (voting instructions require that a voter not allow anyone else to handle his/her ballot). These instructions, the NLRB explained, maintain the integrity of mail-ballot elections by protecting the secrecy of everyone’s ballot and reassuring all parties that the NLRB is in charge of the election process–not the union. Second, the NLRB noted that solicitation suggests to employees that the soliciting party (in this case, the union) is officially involved in running the election, which is the NLRB’s job.
Despite the unanimity of this part of the decision, the NLRB did split with respect to when solicitation would be enough to set aside an election. The majority, composed of Chairman McFerran (D), Member Kaplan (R), and Member Ring (R), held that an election would be set aside based on such conduct if the ballot solicitation affected a “determinative number of votes” – that is, enough votes to have had an effect on the election.
Dissenting in part, Member Emmanuel (R) took a stricter position. He would have held that elections should be set aside whenever a party has solicited mail ballots, regardless of potential impact on the election.
Applying the new rule to the facts in the case, the NLRB declined to set aside the election results. There was only evidence that solicitations affected, at most, two voters. The union won the election by at least 10 votes. Therefore, the NLRB reasoned, the improper union conduct would not have been enough to change the results of the election. The NLRB noted that the employer did not allege that the news of ballot solicitation had been widely disseminated in the bargaining unit or that the union had engaged in a “pattern and practice” of soliciting ballots.
Given the dramatically increased use of mail ballot elections at the NLRB during the course of the Covid-19 pandemic, the decision will be a critical one for labor professionals on both the union and management sides. Parties to such elections should be mindful of the new rules, particularly when it comes to handling of the mail-in voting period.