KemLaw

The National Labor Relations Board (NLRB) just made matters a bit clearer for employers on procedures for counting dual-marked ballots in union representation elections.

Dual marked ballots are those with markings around both the “Yes” or “No” options on a ballot.

In the past, vote counters have been able to use subjective standards for interpreting a voter’s intent when counting these ballots.  And such discretion can have a big impact in close elections as Providence Health Services of Oregon discovered.

In this case, Service Employees International Union Local 49 (“Union” or “SEIU”) sought to organize and represent a group of employees at Providence Health & Services of Oregon.  In all such NLRB elections, the union must receive a simple majority of the ballots cast to gain the right to organize.

In 2018, an election was held at the company that yielded 384 votes for union representation and 383 against.

The employer appealed to the NLRB – challenging just one ballot that was marked both “yes” and “No.”

The Regional Director for NLRB, citing previous precedent, had concluded that the “smudging” along a pencil mark in the “NO” box was an attempt by the employee to erase the marking.  As a result, the Regional Director held that the employee in question had clearly intended to vote “YES.”    That decision carried the vote for the union.

The Director’s decision relied on a line of cases finding “a dual-marked ballot is void unless the voter’s intent can ‘be ascertained from other markings on the ballot.’

In reviewing the case, the NLRB overruled the Director and stated “it (is) difficult to discern any consistent approach,” and any “attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible ‘corrections’ are impermissibly subjective.”

The new rule now?

“[W]here a ballot includes markings in more than one square or box, it is void.”

Refreshingly simple and straightforward.  And a win for employers everywhere.

If you’re an employer and have questions about labor and employment law, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We do one thing and one thing only – we are exclusively an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

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