Since the onset of the COVID-19 pandemic in March 2020, unions and employers alike have had to adjust to a “new normal” of mail ballot NLRB elections. Under normal circumstances, the NLRB’s preferred and standard method for conducting elections is in person, usually at the employer’s facility and – depending on the size of the voting pool – at various times throughout the workday. But in the context of the pandemic, a majority of NLRB elections have instead been conducted by mail ballot. As the Delta variant has pushed infection rates back to alarming levels in many states across the U.S., mail ballot elections may continue to be the rule rather than the exception, at least in some hard-hit areas.

With mail ballot elections, however, come many unique questions and concerns about maintaining the integrity of the voting process and effectively preventing the coercion and manipulation of employees. Two recent NLRB cases are particularly illustrative in this regard.

In Professional Transportation, Inc., 370 NLRB No. 132 (2021), the NLRB established a bright-line rule concerning voting solicitation in the mail ballot context. Moving forward, employers and unions will be deemed to have committed objectionable conduct in an NLRB mail ballot election by offering to collect employee mail-in ballots for mailing or by otherwise offering to assist in mail ballot submission. The NLRB held that such solicitation casts doubt on the integrity of the election process and the secrecy of employee ballots. Moreover, in the NLRB’s view, solicitation of mail ballots also suggests that the party engaging in such conduct is officially involved in the election process, which the Board has held is “incompatible with [its] responsibility for assuring properly conducted elections.” The Board therefore concluded that solicitation of mail ballots may be grounds for overturning election results if the solicitation affects enough votes to determine the outcome. Notably, Chairman McFerran observed in a footnote to the opinion 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, including mail, telephone, and electronic voting.”

The NLRB addressed another issue unique to mail balloting in College Bound Dorchester, Inc., Case No. 01-RC-261667 (2021). In College Bound, the employer challenged an employee’s mail ballot on the basis that the employee’s signature on the envelope was illegible and did not match other examples of the employee’s signature that the employer provided during the Region’s investigation of its challenge. Although the challenged ballot was determinative, the regional director overruled the challenge without a hearing on the basis that there was no evidence of fraud and that the signature was sufficiently similar to the employer-provided examples to be deemed a match. Following the employer’s submission of a request for review to the NLRB, the Board held that the regional director’s determination was “clearly erroneous.” Noting the interest in preserving the integrity of the mail ballot process, the Board held that the differences between the employee’s signature on the mail ballot envelope and the examples that the employer provided raised “substantial and material issues” as to whether the ballot had truly been completed by the employee.

Bottom Line: As President Joe Biden’s appointees to the NLRB take office, the Board may embrace less traditional forms of voting as Chairman McFerran urged in the Professional Transportation, Inc. case discussed above. If so, parties can expect to face a number of unique (and unforeseen) issues relating to the integrity of the voting process. Vigilance and preparedness will both be even more critical in properly preserving challenges and objections throughout an NLRB election.