Board Rules Solicitation of Mail Ballots is Objectionable Election Conduct

Washington, D.C. — In a decision issued today in Professional Transportation, Inc. 370 NLRB No. 132 (2021), the National Labor Relations Board unanimously held that the solicitation of mail ballots constitutes objectionable conduct in a Board election. The majority (Chairman McFerran and Members Kaplan and Ring) held that an election would be set aside based on such conduct if the evidence showed that ballot solicitation affected a determinative number of votes. Dissenting in part, Member Emanuel favored setting aside elections whenever a party is shown to have solicited mail ballots, irrespective of the number of voters affected.

Applying the new rule retroactively, the Board declined to set aside the election. It found that although the Employer may be able to show the Union solicited the mail ballot of at least one employee, at most it would be able to establish that the solicitations affected two voters. Therefore, the solicitation could not have affected the outcome of the election, in which the Union prevailed by a minimum of ten votes.

Charges were filed by the United Electrical, Radio, and Machine Workers of America (U.E.), Local 1077. Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.