Labor & Employment Law Daily New NLRB bright-line rule declares ‘dual-marked’ ballots in union elections void
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Tuesday, May 19, 2020

New NLRB bright-line rule declares ‘dual-marked’ ballots in union elections void

By Ronald Miller, J.D.

Attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible “corrections” are impermissibly subjective.

In an about face from established precedent regarding dual-marked ballots, the NLRB overturned current precedent and ruled that a ballot with a diagonal line in the “No” square and an “X” in the “Yes” square was void. The Board determined that the precedent was convoluted, difficult to apply, and unreliable as a means to divine a voter’s intent. Accordingly, because a union did not get a majority of valid votes cast, the Board reversed a regional director’s decision, overrode a union’s exceptions and vacated the certification of representative and certified the election results (Providence Health & Services-Oregon dba Providence Portland Medical Center, May 13, 2020).

Dual-marked ballot. This case presented the question of whether a regional director erred in counting a ballot containing a diagonal line in the “No” square and an “X” in the “Yes” square as a vote in favor of a union, rather than declaring the ballot void. During the ballot count, a Board agent declared three ballots void, including the ballot with a diagonal line in the “No” square and an “X” in the “Yes” square. The union objected that the Board agent erred in declaring the ballot void. The parties resolved all matters except for two void ballots, including the dual-marked ballot. The regional director called for a hearing and an administrative law judge found that “the smudging along the diagonal line in the ‘no’ box was an obvious attempt at erasure of an incomplete ‘X.” The initial tally of ballots showed 374 votes for the union and 376 votes against representation; the revised tally showed 383 votes for the union and 382 against.

Adopting the ALJ’s recommendation to sustain that portion of a union’s objection that the ballot showed a clear intent to vote “yes,” the regional director issued a decision and certification of representative.

Board precedent. In reaching his conclusion, the regional director applied Board precedent holding 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).” In this instance, the regional director concluded that “it is possible to discern a clear expression of the voter’s intent based on the ballot’s irregular markings” and that the ballot was a valid vote in favor of representation.

Speculation. On review, the employer asserted that the regional director misapplied extant Board law regarding dual-marked ballots, and alternatively, that the Board should modify the standard for dual-marked ballots to presume that such ballots are void. After surveying the NLRB’s history in resolving dual-marked ballots, the Board agreed with the Ninth Circuit’s 1998 ruling in TCI West, Inc., which held that attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible “corrections” are impermissibly subjective. It noted that the Board has no special expertise in judging whether stray markings represent attempted erasures or obliterations, so decisions have ultimately resorted to speculation.

Bright-line rule. In light of these concerns, and in the service of enhancing clarity and predictability, the Board concluded that its stakeholders would be best served by establishing an objective, bright-line rule pertaining to dual-marked ballots. Accordingly, the Board held that where a ballot includes markings in more than one square or box, it is void. Additionally, the Board overruled any cases in conflict with this principle. According to the Board, the new bright-line approach will spare the Board from engaging in unnecessary speculation to ascertain voter intent, and will preserve Board and party resources, since the objective standard will avoid litigation. The new approach will also result in more expeditious certification of election results.

Moreover, the Board will apply this new standard retroactively. In representation cases, the Board’s established presumption is to apply a new rule retroactively unless doing so would work a manifest injustice. Here, the Board precedent in this area has been inconsistent, speculative, and subjective, and retroactive application will serve the purposes of the Act by bringing immediate clarity and uniformity to this area, and will not prolong the final resolution of the question of representation. Finally, the Board determined that modification of its official election ballot language will help reduce or eliminate instances of dual-marked ballots.

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