Tie Goes to the Employer: NLRB Overrules Past Precedent Regarding Dual-Marked Ballots

TLNT

Adam C. Abrahms, Steven M. Swirsky, and Brock Olson, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in TLNT, titled “Tie Goes to the Employer: NLRB Overrules Past Precedent Regarding Dual-Marked Ballots.”

Following is an excerpt:

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test. A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way. The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services.

Facts

In Providence Health & Services,Service Employees International Union Local 49 (“Union” or “SEIU”) was seeking to organize and represent a group of employees at Providence Health & Services—Oregon (“Employer”).  In an NLRB representation election, a union must receive a majority of the valid ballots cast to be certified.  If the vote is a tie, the union loses and will not be certified as the bargaining representative.

An election took place in December 2018, which after the Regional Director’s decision regarding two controversial ballots, resulted in 384 votes for the Union, and 383 votes against union representation.  However, the Employer appealed to the Board and challenged a single ballot which was dual-marked and which the Employer argued should therefore not have been counted:

The Regional Director, citing to previous Board precedent, and in line with an administrative law judge’s recommendation, had concluded that the “smudging” along the diagonal line in the “NO” box was what he concluded to be an obvious attempt by the employee to erase the marking.  Accordingly, the Regional Director held that it was the clear intent of the employee to vote “YES.”    Consequently, for a moment in time, it looked as though the Union had won the election by a single vote.

The Regional Director’s ruling, like the ALJ’s recommendations, 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 (such as an attempt to erase or obliterate one mark),’” to find the smudging was intent.  Quoting TCI West, Inc.,322 NLRB 928, 928 (1997), enf. denied 145 F. 3d 1113 (9th Cir. 1998).

The Board’s New Bright-Line Rule

However, in reviewing this case, the Board reviewed and overruled decades of complex, convoluted, and contradictory precedent on how to interpret a dual-marked ballot.  Finding “it difficult to discern any consistent approach,” the Board concluded that any “attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible ‘corrections’ are impermissibly subjective.”  The Board reasoned that they themselves have no special expertise in judging such markings and thus, ultimately, each decision regarding a dual-marked ballot resorts in speculation.  Furthermore, any speculation by the Board is inconsistent with other established Board precedent directing the Board to avoid speculation regarding any such markings when deciding the validity of a ballot.

Accordingly, the Board concluded that “the Board and our stakeholders will best be served by the establishment of an objective, bright-line rule pertaining to dual-marked ballots.”  The new rule throws out decades of contradictory and speculative precedent in favor of this simple bright-line rule:

Where a ballot includes markings in more than one square or box, it is void

This new bright-line rule will be applied retroactively.