By Samuel Morris

Law360 (September 22, 2020, 12:45 PM EDT )

Samuel Morris

The National Labor Relations Board historically disfavors mail-in ballot voting. Yet out of necessity and health considerations, since the onset of the pandemic, the board has routinely authorized mail-in ballot voting.

In July, the NLRB's Office of the General Counsel published a memorandum outlining manual voting procedures in light of the pandemic. With no letup in the pandemic, the NLRB's trend of wholesale authorization of mail-in ballot elections continues. This article highlights the effects of that trend.

Laboratory Conditions, the 24-Hour Rule and Electioneering

It is a well-established board rule that the employer may not engage in electioneering in the form of a required meeting within 24 hours leading up to an employee casting her ballot. This is known as the 24-hour rule.

The rule was born out of the NLRB's stated goal of fostering what it calls laboratory conditions during critical phases of the election process. During those 24 hours, the board reasoned, the employee is supposed to be free from captive-audience meetings.

Captive-audience meetings occur when an employer takes advantage of the presence of the employees to call a mandatory meeting on company time to discuss the upcoming election. The question of when precisely the 24-hour rule goes into effect and duration during a manual voting election is easily answered because that employee will cast a ballot at a specified time. 

A much more difficult question is presented with respect to a mail-in ballot election. That question was addressed in a 61-year-old NLRB case — Oregon Washington Telephone Co.

In a mail-in ballot election, the NLRB's laboratory conditions and corresponding prohibition against electioneering and captive-audience meetings go into effect 24 hours prior to the NLRB dispatching ballots and remain in effect until the date prescribed on the NLRB notice by which all ballots must be returned.

The case of Peerless Plywood Co. originally set forth the rule that "employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election."[1]

In a rare prepandemic mail-in ballot scenario, the Oregon Washington Telephone case held that:

Employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within the period set forth in the notice, i.e., from the time and date on which the "mail in" ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.[2]

The Oregon Washington Telephone gag rule was extended in Guardsmark Inc.[3] in 2016, adding the 24-hour period before the election to the quiet period. In mail-in ballot elections, the name of the 24-hour rule becomes a misnomer because in practice, the laboratory conditions remain in effect for weeks. The prohibition starts 24 hours before the mailing date and ends on the date the region sets for the ballots' return.

Who Is Harmed by Ordering Mail-In Ballot Elections?

Historically, labor organizations have sought mail-in ballot elections, though sparsely obtained them. This is likely due, at least in part, to the fact that the employee may cast his ballot in the comfort of his home rather than in his workplace. 

Employers often complain that mail-in ballot elections are ripe for interference because the employees are susceptible to coercion in the form of secret meetings and home visits. Questions about the parties' direct influence in the mail-in ballot execution process have not been addressed by the board.

But since the advent of mail-in ballot voting due to the pandemic, unions have seen fewer favorable results than before the pandemic.

Pandemic Win Rate

Between June 1 and Sept. 11, there were 335 elections and 221 results favoring unions, a win rate of 65%.[4]

Prepandemic Win Rate

In all of 2019 there were 1,466 elections and 1,091 certifications — a union win rate of 74.4%.[5] In 2018 there were 1,415 elections and 1,016 certifications — a 71.8% win rate for unions.[6] In 2017 it was the same story: 1,468 elections with 1,068 certifications — a union win rate of 72.7%.[7] The average union win rate over the past three years is 72.96%, 8% greater than the pandemic mail-in ballot average.

Lots of Void Ballots

During typical manual ballot elections, the number of ballots not counted due to voter error and mismarking is negligible. But in this period of heavy mail balloting, factors such as voter error and mail delays result in many mail-in ballots being voided, with a much higher likelihood that votes will not be counted.

For example, in a recent mail-in ballot election in New York, 55 ballots were voided out of the 153 cast.[8] In another representation election, this time in California, 30 ballots were voided out of 223 votes cast.[9] 

In all elections tallied between Aug. 21 and Sept. 11 there were 4,262 employees eligible to vote in mail-in ballot elections and 183 ballots voided, a ratio of 4.2% of void to eligible.[10] 

The ratio becomes more statistically significant when one contrasts the number of votes actually cast with the number of void ballots. During the same time frame as above, 2,252 employees cast ballots in mail-in elections with 183 voided for a ratio of 8.1%. Thus, in a close election, the results may hinge on whether a given employer or labor organization's supporters properly fill out their ballots and timely mail them. 

Less Participation

Another disturbing emerging trend is in voter participation. Nearly half, or 48%, of the eligible voters in the mostly mail-in ballot elections between Aug. 21 and Sept. 11 did not vote.[11] By contrast, the voter participation rate for largely in-person NLRB elections during the same time period in 2018 was 76%, with mostly in-person elections. 

Practice Tips

The necessity of allowing mail-ballot elections during the pandemic has wreaked havoc on voting participation and results, and no immediate return to regular in-person voting is in the offing. Practitioners should not take this pandemic turn of events lightly. Before agreeing to a mail-in ballot, assess how it will be viewed by eligible voters:

• Is your desired voter likely to return the ballot?
  
  
• How will having it sent to their house affect their choice?
  
  
• Can your campaign be sufficiently focused on the logistics of mail-in balloting?
  
  
• Can the desired voters be sufficiently schooled on how to fill out and return the ballot so as to keep it from being voided?
  
  
• Do your desired voters have their current address listed and do they check their mail?
  
  
• Will the campaign violate the rule banning captive-audience meetings, which will extend to many weeks for the mail-in voting process?
  
  

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Samuel Morris is an attorney at Godwin Morris Laurenzi & Bloomfield PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Peerless Plywood Co. , 107 N.L.R.B. 427, 429 (1953). 

[2] Oregon Washington Tel. Co. , 123 N.L.R.B. 339, 341 (1959).

[3] Guardsmark, Inc. , 363 N.L.R.B. 103 (2016).

[4] See National Labor Relations Board, Recent Election Results, https://www.nlrb.gov/reports/graphs-data/recent-election-results (last visited Sept. 16, 2020).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

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