In an unpublished decision, the National Labor Relations Board (NLRB) has expressed an interest in possibly changing the criteria for mail balloting in a future “appropriate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.

Please contact a Jackson Lewis attorney with questions about this or other NLRB or NLRA issues.

 

 

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Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

Photo of Howard M. Bloom Howard M. Bloom

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.

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.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993