Number 179, June 2005-web only:
Voting in NLRB Elections while Mobilized

By CAPT Samuel F. Wright, JAGC, USNR*

In Law Review 55, I addressed the question of voting in intra-union elections while mobilized. The particular election at issue there was a referendum as to whether the union members would approve “give backs” to the employer-these are concessions of contractual rights under a collective bargaining agreement that is already in effect and has not expired. The same considerations would apply to an internal union election of union officers. It would be nice if the union would permit mobilized members to vote in such elections, but no law requires the union to do this.

Jayson Spiegel, then the executive director of ROA, sent a letter to the union president, requesting that the union reconsider its position and permit mobilized members to vote. The union president sent Mr. Spiegel a polite response, saying that the union supports the military but that the union constitution does not permit mobilized members to vote in union elections. The union president suggested that if the member wanted to amend the union constitution, the member could start that process by getting his own local to endorse the proposed amendment. Yeah, right! This servicemember really has time for that while on active duty in Afghanistan.

Recently, I have learned of a similar but not identical situation. This new situation involves a union representation election. The National Labor Relations Act, which was originally enacted in 1935, provides for such elections when employees of a particular employer demonstrate a “showing of interest” in union representation. Upon such a showing, the National Labor Relations Board (NLRB) conducts an election among the affected employees. If a majority of the employees votes for representation by that union, the NLRB certifies the union as the exclusive bargaining representative for all the non-supervisory employees, including those who may have voted against union representation.

The situation involves a very small employer in western Pennsylvania. It has 14 non-supervisory employees, including two who have been mobilized and are in Iraq. The employer informed the NLRB representative of the two mobilized employees and suggested that some arrangement should be made to enable them to vote, but the NLRB representative explained that NLRB rules do not provide for absentee ballots in union representation elections.

The election was held in March 2005. Six employees voted for union representation, and five voted against. One ballot was challenged, and its validity has not yet been determined. The two mobilized employees had no opportunity to vote. If they had voted, their ballots certainly could have affected the outcome. I think that the NLRB should provide an opportunity for absentee voting in elections such as this.