Union Election Set Aside for Not Having Translated Ballots

The National Labor Relations Board (NLRB) on April 16 upheld an NLRB regional director’s setting aside of a union election when the ballots were not translated into Spanish and Swahili. The decision highlights the importance of ensuring ballots are understandable by workers who don’t read English.

Because a substantial number of the employers’ workers did not speak English as their first language, the employer had — prior to the election — requested the assistance of Swahili translators. The employer asserted that most of its Swahili-speaking employees did not read or write Swahili and so would need the ballot and instructions translated to them. 

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The NLRB region had denied the request for a Swahili translator but permitted each party to have an observer, who spoke each language spoken by employees, present during voting.

The election was close, and the employer filed objections to it. The employer alleged that the lack of translators, the fact that all ballots were printed in English only, and errors in the wording and design of the Spanish and Swahili sample ballots impeded non-English-speaking employees’ ability to understand and participate in the election.

Although a sample ballot in each language was placed on the table where the board agent and observers sat, the Swahili sample ballot was incomplete, according to the employer. Specifically, the voting boxes were not labeled “Yes” or “No” and the employer’s Swahili observer had to write in these labels on the sample ballot by hand, creating potential confusion and inconsistency for Swahili-speaking voters, the employer added.

The employer also alleged that although a sample ballot in each language was placed on the table where the board agent and observer sat, the Spanish sample ballot was not in Spanish but instead was in English. The only Spanish word on the Spanish sample ballot was an added stamp of “MUESTRA,” indicating that it was a sample ballot. As a result, Spanish-speaking voters did not have a sample ballot or an actual ballot in their language, causing confusion and inconsistency for Spanish-speaking voters, the employer asserted.

Board Decision

The NLRB upheld the regional director’s decision setting aside the election. 

The regional director found that there was a high potential for voter confusion. The regional director also noted that employees were not advised that only English-language ballots would be used. The denial of Swahili translators was further grounds for setting aside the election, according to the regional director.

“The region was on notice prior to the election that a substantial number of the employees did not speak English nor could they read in their own language,” the regional director stated. “Further, the board agents supplied by the region to run the election spoke only English and as detailed above, the Spanish and Swahili election notices were fatally flawed.”

With 543 ballots cast, 277 were for union representation and 266 were against, a difference of 11 votes. But there were 11 void ballots, which the regional director noted corresponded exactly with the difference in votes. 

“The board will grant a request for review only where compelling reasons exist,” the NLRB said. “That showing has not been made here.” It was undisputed that errors marred the election, the NLRB added. 

“The regional director who supervised that election concluded that those errors destroyed the laboratory conditions necessary for the election to determine the uninhibited desires of the employees, and we decline to second-guess that judgment in the circumstances presented here,” the NLRB stated.

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Dissent 

Writing in dissent, NLRB member David Prouty said the regional director found only the potential or likelihood of confusion by voting employees, “which utterly fails to satisfy” the correct legal standard.

“The regional director unquestionably applied an incorrect legal standard,” Prouty wrote. “For the type of conduct alleged here — the lack of interpreters, the use of English-only ballots, and deficiencies in the sample ballots included in the translated notices of election — the board’s case plainly requires evidence of actual voter confusion to warrant setting aside an election.”

Prouty added that “the mere potential confusion” on which the regional director relied “improperly relaxes the standard that the board has applied in similar cases.”

The NLRB decision is Dold Foods LLC.