Adam Abrahms, Steve Swirsky Quoted in "NLRB Says 'Dual-Marked' Union Election Ballots Are Void"

“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. …

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. …

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.”