Seyfarth Synopsis: In a move that will provide clarity to both unions and employers, the National Labor Relations Board in Providence Health & Services – Oregon d/b/a Providence Portland Medical Center, 369 N.L.R.B. No. 78 (May 13, 2020) held that dual-marked ballots in a NLRB supervised secret ballot election should be voided in the election tally. This new standard applies retroactively. Employers should ensure that their instructions to employees on how to mark ballots in NLRB supervised secret ballot elections are updated to take account of this important procedural rule change.
One ballot out of 767 was the difference in determining whether the union would represent the employees. The ballot in question contained a diagonal line in the “No” square and an “X” in the “Yes” square. With the conflicting marks, did the voter intend to vote for Union representation or against it? Since Board elections are conducted by secret ballot, the Regional Director could not use voter testimony to ascertain what the intent of the two marks was. However, applying extant case law, the Regional Director concluded that “it [was] possible to discern a clear expression of the voter’s intent based on the ballot’s irregular markings.” On that basis, the ballot was counted as a vote in favor of the union, resulting in a tally of 384 votes for the union and 383 votes against it. In light of this narrow loss hinging entirely on a single, questionable ballot, the Employer filed a timely request for review, which was granted by the Board.
The Board’s Holding
Prior to this case, the Board evaluated dual-marked ballots by determining whether the voter’s intent could be “ascertained from other markings on the ballot,” such as an attempt to erase one of the two marks or one mark being crossed out. Under that standard, a dual-marked ballot was considered void if there was no other marking to indicate the voter’s intent.
Noting the inconsistencies in past adjudications of dual-marked ballot cases, the Board modified its standard. Finding that it has “no special expertise in judging whether stray marks represent attempted erasures or obliterations,” the Board concluded that such an exercise risked becoming an inquiry rested on speculation, and it was not an efficient use of agency resources. Thus, the Board adopted an objective, bright-line rule pertaining to dual-marked ballots: “where a ballot includes markings in more than one square or box, it is void.” Furthermore, the Board found that the standard would apply retroactively.
Applying this new standard to the case at hand, the Board voided the ballot in question; thus, the tally was tied at 383 votes. Since the union did not receive a majority of the valid votes cast, the union did not become the exclusive representative for the bargaining unit.
Impact on Employers
This new standard may benefit employers, unions, and the Board alike by making it clear how dual-marked ballots will be counted. To be sure, however, the new standard is a double-edged sword for employers: after all, it is just likely that a dual-marked ballot on which the voter intended to vote “No” will now be voided as well. For that reason, employers should make sure that their instructions to employees on how to vote in an election are updated to take account of the new voided ballot rule. Voters should know ahead of time that in order to be counted as a “No” vote, the ballot must only be marked once.