The results of a mail ballot election can be overturned if the union offers to collect the ballots of enough voters to have changed the results of the election. In the National Labor Relations Board decision Professional Transportation, the union left voicemails telling workers to contact the union if they “needed help on getting the ballot sent back [to the Board] one way or the other.” Even though no worker said that they asked for help, the Board ruled that the offer by itself was enough of an objection to overturn the election results, if the number of ballots the union solicited could have changed the results of the election.
The Board previously ruled that it is also objectionable for a union to collect or otherwise handle voters’ mail ballots because doing so casts doubt on the integrity of the election process and undermines election secrecy.
This case means that organizers should be extra careful when voters are handling or marking their ballots.
Unions can and should:
• explain the process of marking the ballot, placing the ballot into the right envelope and mailing the ballot to the Board;
• encourage workers to vote and vote for the union; and
• encourage workers to encourage their co-workers to vote.
But unions should refrain from:
• being near voters when they complete their ballots;
• being present if workers are marking their ballots in a meeting, group or at a party;
• handling any unmarked or marked ballot;
• collecting or mailing ballots for voters;
• offering to help voters mark, to collect or to mail their ballots; or
• telling or asking workers to be near other workers when they vote or to collect or mail other voters’ ballots. The Board could rule that workers who the union asks to do things are the union’s agent and overturn the election results based on the workers’ conduct.
If voters plan to complete ballots at a meeting, party or in a group, they should complete their ballots in a way that ensures their vote is secret. So, they should mark their ballots away from other voters, or go into a separate room or area to mark their ballots. They should not mark their ballots close enough to other voters so they might be able to see how they voted.
If voters are mailing their ballots together, it’s best if they all walk together to a mailbox or the post office. If the organizing committee or a few of the workers are collecting the group’s ballots and mailing them, they should collect them only after the individual voters complete their ballots and place them into the provided envelopes in accordance with the Board’s instructions.
But organizers should not tell or ask workers to be near other workers when they vote or to collect or mail other voters’ ballots. The Board could rule that workers who the union asks to do things are the union’s agent and overturn the election results based on the workers’ conduct.
The case is Professional Transportation, 370 NLRB No. 132 (2021). If you have any questions about this case, contact Sarah Anderson at email@example.com.