Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 25, 2021, the National Labor Relations Board (Board) decided in College Bound Dorchester, Inc. and Service Employees International Union Local 888, Case No. 01-RC-261667 (2021), that an employer’s challenge to a ballot signature raised substantial and material issues as to whether the ballot was cast by an eligible employee. A panel of members McFerran, Emanuel and Ring decided unanimously that a hearing was necessary to address and resolve the employer’s challenge regarding the ballot signature.1
On August 24, 2020, a mail ballot election was held to determine whether the Service Employees International Union, Local 888 (Union) would serve as the bargaining representative for the employees. Of approximately 24 eligible voters, 6 voted for the Union and 6 voted against. An additional 7 ballots were challenged. The acting regional director sustained the challenges to 6 of the ballots, with neither party requesting review of those determinations. The remaining ballot of one employee was challenged by the employer on grounds that the signature on the ballot envelope was illegible and did not match examples of the employee’s signature submitted by the employer.2
The acting regional director overruled this objection without a hearing, concluding that the signature was that of the employee because it had “commonality” with the signature examples submitted by the employer. Specifically, the acting regional director found a horizontal line in the upper portion of the signature significant, while exemplars of the employee’s signature submitted by the employer showed that he used horizontal lines above and below his signature. Additionally, the envelope signature contained a “Q” and dots that matched the previous examples, but both appeared on the envelope in a different location from where they were in the signature examples submitted by the employer. Despite differences in the signatures, the acting regional director felt that the ballot signature was similar enough to the exemplars to conclude the ballot was signed by the employee. The acting regional director also noted that the “uneven terrain of the envelope likely contributed to the comparatively messier signature” on the ballot in comparison with those provided by the employer.
On review, the Board concluded that a hearing was necessary to determine whether the signature was genuine. The Board began by affirming that the requirement of having employees sign the outer envelope of the ballot acts as a safeguard to the integrity of mail ballot elections and permits the ballot to be identified as cast by an eligible employee. Northwest Packing Co., 65 NLRB 890, 891 (1946).
The Board noted that it will void a ballot if the employee’s name is printed on the envelope rather than signed. Thompson Roofing, Inc., 291 NLRB 743, 743 fn. 1 (1988). In Thompson Roofing, Inc., a ballot was voided where the printed name on the ballot was compared to the employee's signatures on file, showing that the employee normally signed his name when so instructed. Accordingly, the Board in College Bound held that the signature on a mail ballot envelope that varies significantly from known examples of the employee’s signature may, depending upon the circumstances, raise substantial and material issues regarding the identity of the person who marked the ballot enclosed within.
The Board wrote that while the acting regional director’s decision acknowledged differences between the envelope signature and examples provided by the employer, it dismissed these distinctive differences without adequate justification. Further, the Board held that the speculation that the envelope signature was “likely” messier due to the uneven terrain of the envelope was not supported by evidence. The Board also found it significant that the signatures across the documents submitted by the employer are very similar to each other, which suggested a high degree of consistency in the way the employee normally signs his name.
In sum, the Board held that the acting regional director’s determination that there were no significant discrepancies between the ballot envelope and multiple, consistent exemplars of the eligible employee’s signature was clearly erroneous. Thus, the Board held that the employer’s challenge raised substantial and material issues as to whether the ballot was cast by an eligible employee and remanded the case to the acting regional director for a hearing on the matter.
It is often difficult to determine whether to challenge a signature on a mail ballot, particularly during recent elections when parties were given mere seconds to view a ballot on a computer screen via the Zoom-based platform used by the Board during ballot counts in light of the pandemic. One takeaway from the Board’s decision is that employers should not hesitate to ask to view a questionable envelope for additional time in order to make a challenge decision. Elections often come down to one or two votes, so the challenge process is crucial. This case should encourage employers to err on the side of caution when deciding whether to challenge a signature, because it appears the Board will take seriously the requirement that employees must sign the mail ballot with a legitimate and legible signature.
1 This decision is unpublished.
2 In support of the challenge, the employer submitted seven documents bearing the employee’s signature, including his W-4 form, direct deposit authorization, I-9 employment eligibility verification, and criminal background check authorization form.