NLRB Orders Hearing in Dispute Over Worker’s Signature in Mail-In Union Election

In a recent decision, the National Labor Relations Board ruled that a hearing must be held to resolve legitimate questions regarding the authenticity of a worker’s signature on what could be the deciding vote in a mail-ballot union election.  The Board’s ruling highlights its concerns with maintaining the integrity of its mail-in voting system.

 

Background

The case, College Bound Dorchester, involved workers at a Boston education-related nonprofit who participated in a mail-ballot election last summer to determine whether they would unionize with a Service Employees International Union affiliate.  Six workers voted in favor of unionization, six workers voted against it, and seven ballots were challenged.  In the event of a tie, the unionization effort would fail.

The Acting Regional Director in Boston sustained the challenges to six of the ballots, finding that they had been cast by workers who were fired about six weeks before the election.  The remaining challenged ballot, which would determine the election, was cast by Alberto Quesada.  The employer challenged Quesada’s ballot on the grounds that the signature on the ballot envelope was illegible and did not match known examples of Quesada’s signature.

In support of its challenge, the employer submitted seven documents bearing Quesada’s signature, including his IRS W-4 form, his direct deposit authorization, and his I-9 employment eligibility verification.  After reviewing these documents, the Regional Director stated:

In addition to the lack of evidence of fraud involved in the submission of Quesada’s ballot, I also conclude that the signature on the ballot is that of Quesada.  Exemplars provided by parties of Quesada’s signature include horizontal lines above and beneath his signatures on those items.  Notwithstanding the Employer’s assertion to the contrary, a horizontal line appears on the upper portion of the signature on the envelope.  An examination of the envelope also demonstrates that the “Q” in Quesada’s typical signature and dots appear on the signature on the envelope, albeit at the beginning of the signature.  I also note that the uneven terrain of the envelope likely contributed to the comparative messier signature than appears on the flatter contours of the documents provided by the Employer.

Given the foregoing, the Regional Director overruled the employer’s objection to Quesada’s ballot.

The Decision

The Board began its analysis by noting that the requirement that employees sign the outer envelope in which a mail-in ballot is returned to the regional office is intended to “safeguard the integrity of mail ballot elections” by ensuring the ballot can be identified as cast by an eligible employee.  Evidence that the signature on a mail ballot envelope varies significantly from known examples of an employee’s signature may “raise substantial and material issues regarding the identity of the person who marked the ballot enclosed within.”  In this case, the Board found that the “evidence presented by the Employer . . . clearly raises such issues with respect to the ballot in question here.”

Specifically, the Board found that the Regional Director improperly dismissed significant differences between the signature on Quesada’s mail ballot envelope and the examples provided by the employer.  For instance, the signature on the envelope “had one horizontal line across the body of the signature, whereas the seven known examples all have two horizontal lines.”  The Board also took issue with the Regional Director’s finding that “the envelope signature was ‘likely’ messier due to the ‘uneven terrain of the envelope,’” as there was no evidence to support this speculation.  Finally, the Board noted that the examples of Quesada’s signature provided by the employer were “very similar to each other, suggesting a high degree of consistency in the manner in which Quesada normally signs his name.”  Given this, the fact that the signature on the envelope varied from the other examples raised significant issues “regarding whether the ballot of Quesada was cast by an eligible voter.”

In short, the Board ruled that the Regional Director’s determination that there was no significant discrepancy between the signature on the ballot envelope and multiple, consistent examples of Quesada’s signature “was clearly erroneous.”  Accordingly, the Board remanded the case to the Regional Director to conduct a hearing regarding the employer’s challenge to Quesada’s ballot.

Bottom Line

The Board’s decision highlights the NLRB’s concern with maintaining the integrity of its mail-in voting system.  As NLRB Chair Lauren McFerran has said, safeguarding mail elections is an important part of modernizing the agency’s voting procedures, especially as votes by mail potentially become more prevalent outside of the pandemic and other unusual circumstances.