Since the onset of the COVID-19 pandemic, mail-ballot elections—rather than manual, in-person elections, have been mandatory for most NLRB representation elections. The NLRB’s recent ruling, on June 9, 2021, in Professional Transportation Inc., 370 NLRB 132 (2021), provided important guidance regarding when solicitation in the context of such elections constitutes objectionable conduct, such that it can set aside an election. Solicitation typically comes in the form of when the employer or union offers to collect a voter’s ballot and mail it to the Region.  In this case, the Board held that solicitation constitutes objectionable conduct, but importantly, such conduct is a basis for setting aside an election only where the evidence shows that the solicitation affected a determinative number of voters.

Background

In April 2020, the Union filed a representation petition. The election was conducted by mail, and ballots were mailed to employees. Following the election, the Employer objected on the grounds that Union representatives contacted eligible voters and offered to collect and mail their ballots.

Acknowledging that Board precedent does not resolve whether mail-ballot solicitation is objectionable conduct, the Regional Director held that the Employer’s offer of proof did not warrant a hearing as a matter of law and failed to establish a prima facie case of objectionable conduct.

The Employer requested review of the Regional Director’s decision, and the Board granted the request.

Analysis

The Board affirmed the Regional Director’s decision overruling the Employer’s objections, but found that solicitation of mail ballots does constitute objectionable conduct and may warrant setting aside an election in certain circumstances. The Board’s decision comes in the wake of Fessler & Bowman Inc., 341 NLRB 932 (2004), in which the Board unanimously held that it is objectionable conduct for a party to handle employees’ mail ballots. Citing  Fessler, the Board emphasized its obligation to protect the integrity and neutrality of elections and to ensure that elections are conducted under as close to “laboratory conditions” as possible.

Recognizing that mail-ballot elections may be “more vulnerable to the destruction of laboratory conditions than are manual elections,” the Board described the ways in which mail-ballot solicitation constitutes objectionable conduct.

First, the Board explained that a party’s offering to collect ballots contradicts voting instructions stating that parties other than the voter may not handle or collect ballots.

Second, the Board noted that ballot solicitation suggests to employees that a party other than the Board is involved in running the election, thus undermining the Board’s responsibility in controlling the election process. In light of these considerations, the Board concluded that even where ballot solicitation does not result in actual ballot tampering or loss of ballot secrecy, it nevertheless undermines the integrity of the election and constitutes objectionable conduct.

Significantly, however, the Board found that ballot solicitation does not necessarily require that an election be set aside. Rather, an election must be set aside only where the evidence shows that the ballot solicitation affected a determinative number of voters.

In determining whether solicitation warrants setting an election aside, the Board found it relevant to consider evidence of:

  • the number of unit employees whose ballots were solicited;
  • the number of unit employees who were aware of ballot solicitation; and
  • whether a party engaged in a pattern or practice of solicitation.

The Board further explained that the test regarding whether solicitation occurred is objective—that is, the inquiry is whether a party’s conduct could reasonably be interpreted as ballot solicitation. Importantly, the Board also noted that merely asking an employee if they have received their ballot, or offering an employee assistance with understanding the election process, is not ballot solicitation.

Dissenting in part, Member Emanuel favored establishing a bright-line rule that elections should be set aside whenever a party is shown to have solicited ballots, irrespective of the number of voters affected. Additionally, Chairman McFerran expressed concerns that parties could easily manipulate dissemination of information about solicitation in order to set aside an election; accordingly, she would only consider the number of employees who were made aware of solicitation by a solicited employee.

Application

As is typical, the Board held that its decision applies retroactively to the instant case and to all pending cases. In the instant case, the Board concluded that the Employer’s offer of proof was sufficient to show that the Union solicited employee ballots. However, it found that there was insufficient evidence to set aside the election because the misconduct was limited to at most two voters, which could not have affected the election’s outcome, given that the Union prevailed by at least ten votes.

Takeaways

As mail-ballot elections continue to become the norm  across the country, this case expands the opportunities for parties to raise challenges. Chairperson McFerran declined to endorse the view that mail-ballot elections are inherently more vulnerable than manual-ballot elections, and she opined that it is “time for the Board to reevaluate its historic preference for manual elections and to consider expanding and normalizing other ways to conduct elections on a permanent basis.”

Once the Board shifts with new appointees, there is a chance that mail, telephone, and even electronic voting may become more normalized. Such procedures may illuminate new vulnerabilities in the election process, and although it remains unclear what other behaviors may be objectionable conduct that warrants setting an aside an election, it is likely that the Board will continue to seek ways to safeguard the integrity of elections.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Julia Hollreiser Julia Hollreiser

Julia Hollreiser is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group.

Julia represents employers in a wide range of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, and…

Julia Hollreiser is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group.

Julia represents employers in a wide range of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, and wage and hour law violations.  She has experience assisting in single-plaintiff, multi-plaintiff, and class and collective action litigations, in federal and state courts as well as before administrative agencies.  Julia represents clients across a variety of industries including sports, financial services, media and entertainment, higher education, and law firms. Julia also counsels clients on a broad range of employment issues, including investigations into sensitive employment matters, employee terminations and discipline, and employment policies and procedures.

Julia earned her J.D., summa cum laude, from Cornell Law School, where she was a member of the Order of the Coif and graduated first in her class. Julia was also the Managing Editor of the Cornell Law Review and a member of the Moot Court Board. While at Cornell, Julia worked as a student attorney in several clinical programs, representing clients in immigration matters and in employment discrimination matters before the New York State Division of Human Rights. While in law school, Julia was a judicial intern for the Honorable Ronnie Abrams in the Southern District of New York.