NLRB Tightens Rules on Handling of Mail Ballots in Union Elections, Signals Possible Modernization of Union Elections

In a decision announced on June 9, 2021, the National Labor Relations Board (NLRB) clarified that it may overturn the results of a union election conducted by mail ballot if a party (usually the union or the employer) offers to help employees mail their ballots, and the number of employees solicited could affect the outcome of the election.

Before the June 9 decision, the board considered ballot solicitation to be objectionable conduct only if it were shown that employees actually accepted the offer and gave their ballots to a third party to mail or deliver to the board. In this decision, however, the NLRB found that even where the offer was not accepted, the solicitation of a mail ballot interferes with the “integrity of the election” and therefore could be the basis for overturning an election. Signaling possible changes to come, NLRB Chairman Lauren McFerran also repeated her call for the board to reevaluate its historical preference for in-person elections and to modernize its election procedures through the use of telephone and electronic voting.

Because of COVID-19 restrictions, the overwhelming majority of NLRB elections conducted in the last year have been conducted by mail, and so this decision, which applies retroactively to all pending election challenges, could have broad consequences.

The decision underscores the message that unions should avoid any actions that could be viewed as an offer to help deliver employees’ mail ballots or that might otherwise be interpreted as interference with the election process, or run the risk of having the result of the election thrown out. The experienced labor lawyers at Willig, Williams & Davidson are available to offer guidance to their clients on successfully navigating the NLRB election process.

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