NLRB Says ‘Dual-Marked’ Union Election Ballots Are Void

May 29, 2020
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Hand placing ballot paper into wooden box

"Dual-marked" ballots—those with markings in more than one box—should be treated as void in union-representation elections, according to a recent decision by the National Labor Relations Board (NLRB).

In Providence Health & Services, an NLRB regional director counted a ballot as a vote in favor of the union even though it had a diagonal line in the "no" square and an "x" in the "yes" square. The NLRB, however, found that the ballot was void.

The regional director's decision was aligned with some prior NLRB decisions, which held that a dual-marked ballot is void unless the voter's intent can "be ascertained from other markings on the ballot (such as an attempt to erase or obliterate one mark)." However, the board's precedent "is convoluted, difficult to apply, and unreliable as a means to divine voter intent," according to the recent decision. Thus, the NLRB established a clear rule that a ballot is void if it contains markings in more than one square or box.

"When it comes to issues arising under the National Labor Relations Act [NLRA], there are very few bright lines and this is one of them," said Mark Theodore, an attorney with Proskauer in Los Angeles. "It is a simple, logical and very clear rule about which ballots are valid and which are not."

Adam Abrahms, an attorney with Epstein Becker Green in Los Angeles, said employers should ensure that they are familiar with the new rule and clearly articulate it to their employees prior to a union-representation election to limit the possibility of voided ballots. "Employers should advise employees that if they do make an accidental mark on their ballot, then the employee needs to request a new ballot," he said.

Updated Ballot Instructions

Abrahms noted that "most stray or dual markings are caused by employee confusion as to what 'yes' and 'no' means" on the ballot.

Employers can explain to employees what "yes" and "no" votes mean, as NLRA Section 8(c) states that an employer's communications with workers "shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit."

NLRB official ballots have included the following instructions:

MARK AN "X" IN THE SQUARE OF YOUR CHOICE. DO NOT SIGN THIS BALLOT. Fold and drop it in the ballot box. If you spoil this ballot, return it to the board agent for a new one.

"Although this final statement is designed to encourage voters who make stray or dual marks to ask the board agent conducting the election for another ballot, it has proved ineffective," the NLRB said. "It may be that voters unfamiliar with the board's processes and terminology simply do not understand the word 'spoil' to include a dual-marked ballot situation."

In an effort to provide more clarity, the board updated its official ballot language as follows:

Do not sign or write your name or include other markings that would reveal your identity. Mark an "X" in the square of your choice only. If you make markings inside, or anywhere around, more than one square, return your ballot to the board agent and ask for a new ballot. If you submit a ballot with markings inside, or anywhere around, more than one square, your ballot will not be counted.

"Combined with the bright-line rule holding dual-marked ballots void, this new ballot language will serve to promote uniformity in board procedures, increase the prospect that each voter's intended choice is clearly reflected on the ballot and counted toward the final tally, reduce the likelihood of post-election litigation, and enhance the finality of board elections," according to the decision.

“The board's decision has the potential to help resolve a long-standing source of frustration for employers, employees and unions.”
—Steve Swirsky, Epstein Becker Green. 

Employer Takeaways

The board's decision has the potential to help resolve a long-standing source of frustration for employers, employees and unions, said Steve Swirsky, an attorney with Epstein Becker Green in New York City. The NLRB's prior practice was to decide—without objective evidence—what an employee voting in a board election actually meant when his or her ballot was not clear on its face. 

The NLRB's subjective decisions as to whether or not a ballot should be counted, and whether the employee intended to vote for or against representation, has often determined the outcome of close elections, Swirsky observed. "The new rule articulated in this decision should put an end to such decisions by the Labor Board, rather than employees."

Abrahms noted that employers that have recently been involved in elections or are currently involved in elections should understand that the new rule applies retroactively. The NLRB mentioned that its "usual practice is to apply new policies and standards retroactively to all pending cases in whatever stage."

"Employers facing a representation election should incorporate into their communication plan for employees information about how balloting works, the importance of filling out the ballot correctly and what to do if a mistake is made," Theodore said. "This will help ensure the maximum number of ballots cast will be valid and counted toward the results."

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