In Mail Ballot NLRB Elections, Unions and Workers Should Never Offer to Pick Up a Voter’s Ballot
National Labor Relations Board (NLRB) election campaigns can be grueling—especially if the boss holds mandatory captive audience meetings, meets with workers one-on-one, distributes deceitful literature about unions, or makes threats. Workers, representatives, and organizers work hard to motivate and educate coworkers to see past these union-busting tactics. Elections can be decided by a single vote, which of course means that every vote matters. However, as important as every vote is, and as crucial as it is to help coworkers understand why they should vote yes on the union, no worker, representative, or organizer should ever offer to pick up or help fill out a mail ballot.
Most NLRB elections are conducted in-person, supervised by a trained NLRB agent who follows procedures intended to ensure employees can freely and secretly vote at the booth without interference. Since the pandemic, the NLRB has conducted a record number of elections by mail. With fewer COVID-19 cases in the United States, it is expected that most NLRB elections will soon be conducted in-person once again. However, there are still circumstances when mail ballot elections will be utilized.
The NLRB recently held that the “solicitation” of mail ballots by a union or an employer will invalidate an election if enough voters were affected to impact the outcome of the election. In Professional Transportation, Inc., 370 NLRB No. 132 (June 9, 2021), a union organizer left a voice message saying, “If [you] need help filling [the ballot] out, not filling it out, but if you need help on getting it sent back one way or the other, I can help you with that.” The NLRB found this voice message to be a solicitation of a mail ballot, because the message would reasonably be understood as an offer to collect the ballot in order to mail it. Under Professional Transportation, solicitation of a mail ballot occurs when a representative offers to handle or mail in a voter’s ballot.
In Professional Transportation, a union representative also allegedly offered to “walk [an employee] thru [sic] filling out the ballot.” The Board did not decide whether that statement, if true, would be solicitation, but assumed for its decision that it was. Fortunately, the Union won the election by a large enough margin that the NLRB did not overturn the results because only two voters were affected by solicitation. While this case involved a union organizer, past NLRB decisions make it clear that no individual may pick up a mail ballot for another potential voter.
What can a coworker or organizer do if a worker is confused about how to submit their mail ballot?
It is okay to:
Ask the worker if they received their ballot from the NLRB
Direct a worker to contact the NLRB if they have not received their ballot
Offer assistance in helping a worker understand the election instructions that come with the ballot.
Educate a worker who is still not sure how they want to vote, about why they should vote yes.
Just make sure that you do not touch their ballot, watch them fill out their ballot, offer to mail in their ballot, or request to mail in their ballot.
If you have more questions about mail ballot elections, contact your union lawyer.
By David W. M. Fujimoto and William T. Hanley