Ballard Spahr LLP

On June 9, 2021, in Professional Transportation Inc., the National Labor Relations Board held that a party’s offer to collect an employee’s mail ballot constitutes misconduct that may serve as the basis to set aside the election. 370 NLRB No. 132.

The Board has previously held that a party engages in objectionable conduct when it handles or collects a mail-in ballot. See Fessler & Bowman, Inc., 341 NLRB 932, 933 (2004).  The NLRB’s recent decision in Professional Transportation, Inc. expands that holding to apply to the act of offering to collect ballots, because it impugns the integrity of the election.  The Board found such offers of assistance incompatible with its mail-ballot instructions, which tell voters not to permit any party to handle, collect, or mail their ballots.  The Board also concluded that the solicitation of employees’ mail ballots casts doubt on the secrecy of those ballots and creates the improper impression that the soliciting party is officially involved in running the election.

However, the Board also concluded that this type of objectionable conduct will only serve as the basis for setting aside the election results if the evidence shows that the conduct affected a determinative number of voters.  Because the Board found that two voters, at most, were affected by the union’s phone calls to employees offering to collect and mail their ballots, and the union had won the election by at least ten votes, the union’s misconduct did not meet the threshold for setting aside the election results.

The decision in Professional Transportation, Inc. serves as a cautionary tale during a time in which representation elections continue to employ mail ballots due to the pandemic.  Simply put, offering to help employees to return their ballots in any manner may land a party in hot water.

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