Steve Swirsky Quoted in "NLRB Mail-Ballot Solicitation Decision Sets New Ground Rules"

The National Labor Relations Board's ruling that mail-ballot solicitation altering an election outcome amounts to objectionable conduct set off mixed reactions Thursday about how it will affect labor and management and chart a new course for mail-ballot elections.

In a case involving United Electrical, Radio and Machine Workers of America and Professional Transportation Inc., the NLRB decided Wednesday that a union or employer's efforts to help workers submit mail ballots can cross the line into objectionable conduct. Such an election is likely to be set aside if the solicitation swayed enough votes to change the outcome, the board said. Solicitation involves either an employer or union offering to collect ballots for employees….

As a result, mail balloting has taken on a new level of importance and was clarified with Wednesday's decision, said Steve Swirsky of management-side firm Epstein Becker Green.

"If you asked me a year ago whether a decision on mail-ballot elections would have much impact, I would have said 'no' because there aren't many mail-ballot elections," Swirsky said. "But what the last year has shown us is that this is something that really can change."…

Swirsky, who previously worked for the NLRB, said the new rule will ultimately affect employers making solicitation claims against unions because in most cases the burden will be on the employer to prove that the outcome would have been different but for statements made by the union or its supporters.

Employers will be hard-pressed to come up with evidence to show that the outcome of an election was altered by a union soliciting ballots, he said. The National Labor Relations Act constrains employers in various ways from getting that evidence, such as by making it illegal to ask employees about how they voted in a representation election, Swirsky said.

The best route, he said, would be the one suggested in a partial dissent by NLRB member William Emanuel, who said there should be a bright-line rule that elections are voided when even one mail ballot is solicited or collected.

"I don't think this decision goes far enough to protect the integrity of the ballots," Swirsky said. "The party who is raising the objections has to have the burden of proving that a determinative number of votes were affected. It's a very difficult burden to meet." …