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NLRB: Offers to collect mail ballots could invalidate union elections

4 minute read

The seal of the National Labor Relations Board is seen at their headquarters in Washington, D.C. REUTERS/Andrew Kelly

  • Soliciting ballots undermines NLRB
  • Ruling could affect review of Amazon union election in Alabama

(Reuters) - The National Labor Relations Board on Wednesday ruled that unions and employers engage in "objectionable conduct" that could warrant setting aside a union election when they offer to collect and mail ballots on behalf of workers.

The four-member board, which has one vacancy, unanimously ruled that solicitation of mail ballots can give the impression that the NLRB is not in complete control of elections, thereby undermining their integrity.

But the board rejected claims by Professional Transportation Inc (PTI), which provides crew transportation services to railroads, that union officials tainted a 2020 election by allegedly offering to help two workers fill out and mail their ballots.

The ruling could affect a closely watched NLRB case involving a recent union election at an Amazon.com Inc warehouse in Bessemer, Alabama, in which workers overwhelmingly voted against unionizing. The Retail, Wholesale and Department Store Union claims Amazon violated federal labor law by installing a mailbox at the facility, which the company says was meant to make it easier for workers to vote.

PTI's lawyers at Kahn, Dees, Donovan & Kahn did not immediately respond to requests for comment. Nor did the United Electrical, Radio, and Machine Workers of America (UE), which won the election by a wide margin.

The UE filed a petition last year to represent PTI employees at multiple railyards in California and Nevada. Of the 113 eligible voters, 42 voted in favor of representation and 27 voted against, with five challenged ballots.

PTI filed objections to the election results, alleging that UE representatives had contacted two of its employees and offered to collect and mail their ballots.

An NLRB regional director last July overruled the objections and certified the union. She found that mail-ballot solicitation was not objectionable conduct that could justify setting aside election results under existing NLRB precedent.

The board in the 2004 case Fessler & Bowman Inc held that actually handling mail ballots was objectionable conduct, but did not reach the issue of whether merely offering to do so was also unlawful.

The NLRB on Wednesday agreed with PTI that it is. Even the appearance of irregularities in election procedures can cast doubt on the validity of an election, the board wrote.

"If mail-ballot solicitation were not objectionable conduct, a party could even tell employees, truthfully, that it is permissible to ask for ballots, thus conveying the impression that the party plays a role in the election sanctioned by the Board itself," the panel wrote.

The board said that moving forward, it will set aside an election if the evidence shows that a "determinative number of voters" were solicited.

But that was not the case in PTI's election, the NLRB said, because the company's evidence only showed that at most two workers had been solicited by union officials.

The case is Professional Transportation Inc, National Labor Relations Board, No. 32-RC-259368.

For PTI: Jacob Fulcher and Nicholas Golding of Kahn, Dees, Donovan & Kahn

For the union: Michael Healey of United Electrical, Radio, and Machine Workers of America

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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