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NLRB Provides Guidance on Common Issues That Arise With Mail In Ballot Elections

 

XPO Logistics Freight, Inc. - NLRB


Facts:  A union election took place via mail in ballot in August of 2020.  The Regional Office sent approximately 132 ballots to eligible employees.  Each of the ballots were included in kits which had instructions for how to return the ballots.  The election had a deadline for ballots to be returned by August 17th.  Ultimately, four unsigned ballots were received, one ballot with an employee’s name printed but not signed, and one damaged ballot that had been torn in half.

The Regional Office voided all six of these ballots which resulted in a 54 to 60 vote against unionization.  After the union raised a series of objections, the Regional Director held that the Regional Office had potentially disenfranchised some of the employees by not sending them duplicative voter kits so they could fix any issues with their initial ballots.  The Regional Director also held that the ballot that was torn in half (but had a “yes” vote) should have been counted.  The matter then went before the National Labor Relations Board (“NLRB”).

Analysis:  The NLRB looked at one particular ballot that was returned unsigned on August 14th.  While the Regional Director held that there was “sufficient time” for the Regional Office to mail the employee a duplicative voter kit, the NLRB disagreed.  Despite the fact that this employee lived near the Regional Office, August 14th to August 17th (when the first ballot was received and when the election ended) was not enough time for the employee to receive a return a second ballot.  Consequently, the NLRB held that because there was insufficient time for the Regional Office to send the employee the duplicative voter kit, the employee was not disenfranchised when the ballot was thrown out and a new one was not provided.

In regard to the ballot that had a “yes” vote but was returned torn in half, the NLRB disagreed with the Regional Director.  Relying upon a prior decision, Midland Steamship Line, Inc., the NLRB held that the Regional Director had to resort to speculation as to the possible meaning of the ballot being torn in half such that the ballot should be voided despite it having a “yes” vote.

The Takeaway:  This is a timely decision from the NLRB, in part given the ongoing vote count in the mail in election at the Amazon facility in Alabama.  This decision is a good reminder that while mail in elections might be favored by some (for ease of access to vote rather than having to do so in person), it also shows the risks that can arise if ballots are not properly completed or are damaged.  Had these ballots in question been counted, that would have impacted the final outcome of the election.  I am not necessarily saying that an in person election would have alleviated all issues...but the issues addressed in this decision would not have been a problem if the election had occurred in person.

Date:  March 23, 2021

Order:  https://apps.nlrb.gov/link/document.aspx/09031d45833cea06

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