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NLRB Open to Changing Criteria for Mail Ballot Elections

In an unpublished decision, the National Labor Relations Board (NLRB) has expressed an interest in possibly changing the criteria for mail balloting in a future “appropriate proceeding.” Western Wall Systems, LLC, Case 28-RC-247464 (Apr. 16, 2020).

NLRB elections can occur by manual ballot, by mail ballot, or by manual and mail ballot simultaneously. The majority of elections are by manual ballot conducted by the NLRB on the employer’s premises. Employees vote by secret ballot, in person, in a room designated for the election. In some situations, especially where voters are scattered at different locations, the NLRB may order a mail ballot election. The NLRB mails ballots to eligible employees, who must return the ballots to the NLRB within a certain amount of time (generally, 14 days) and almost always through the U.S. Postal Service system. Sometimes the NLRB conducts a mixed manual-mail ballot election.

Employers have long disfavored mail ballot elections because of the potential for union abuse, usually lower turnout, and unreliability of the postal system. (The conventional wisdom is that a higher voter turnout benefits the employer.) Indeed, numerous NLRB cases have chronicled irregularities involving mail ballot elections.

Western Wall Systems is one of those cases. It involved a mixed manual-mail ballot election. According to NLRB documents filed by the employer, seven voters were designated to vote by mail ballot. If they had not received their mail ballot packets by a certain date, they were supposed to call the NLRB.

Several problems arose with the mail ballot election, including:

  • Most, if not all, of the seven mail ballot voters had not received ballots by the designated date.

  • One voter attempted to call the NLRB and was told the NLRB did not know anything about the ballots.

  • Five voters were sent duplicate ballots, but none were counted because they were improperly completed or arrived at the NLRB too late.

  • One voter’s original and duplicate ballots were returned to sender.

  • The envelopes that needed to be signed by the voters had the reminder to sign in English only, while everything else was in both English and Spanish because the unit is largely solely Spanish literate.

The union won the election by a narrow margin; the mail ballots may have changed the result. The employer filed objections to the conduct of the election based on the problems with the mail balloting. The NLRB Regional Director dismissed the objections and the employer filed an appeal (Request for Review) with the (currently) three-member NLRB.

In its decision rejecting that appeal, the NLRB noted its frustration with mail ballot election irregularities: “[I]n our view, … this is yet another case that reveals the many potential problems inherent in mail ballot elections.”

The problems that occurred with the Western Wall Systems election are not unusual. While the NLRB was not specific about its concerns, it may issue stricter guidelines for mail ballot elections, including for when they may take place, the lengths of time allotted for returning the ballots to the NLRB Regional office, and procedures for Regional offices to follow in mailing original and duplicate ballots.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 112


About this Author

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...