Skip to main content

NLRB: Bright Line Rule Will Control Dual Marked Ballots


Providence Health & Services - Oregon d/b/a Providence Portland Medical Center - NLRB


Facts:  Service Employees International Union Local 49 (“Union”) sought to organize and represent a group of employees at Providence Health & Services (“Providence”).  Following an election, three ballots were declared void.  One void ballot in particular included an “X” in the “Yes” square and a diagonal line in the “No” square.  Objections were timely filed thereafter and an administrative law judge held that the previously mentioned ballot with multiple markings should be counted as a vote for representation.  The final results of the election resulted in 384 votes for representation by the Union and 38 votes against representation.  Providence filed exceptions and the National Labor Relations Board (“NLRB”) reviewed the administrative law judge’s ruling.

Analysis:  The NLRB recognized prior decisions which had addressed how to interpret dual marked ballots.  As noted in the decision, the NLRB pointed out the prior decisions were complex and somewhat contradictory.  In doing so, the NLRB opined that because it had no expertise in judging marks on a ballot and trying to determine intent, any decision made in regard to a dual marked ballot would simply be speculation.  As a result, any speculation would be inconsistent with other NLRB precedent which stipulated that the NLRB should avoid speculation in regard to marks on ballots when determining the validity of a ballot.

The NLRB therefore determined that it should adopt a “bright line rule” in regard to dual marked ballots.  The rule provides that when a ballot includes markings in more than one box or square, the ballot will be void.  Notably, the NLRB held that the “bright line rule” would apply retroactively. Consequently, as to this case, the above mentioned ballot with multiple marks was declared void by the NLRB which meant that the final election results were 383 for representation by the Union and 383 votes against representation.  Therefore, as the Union was required to receive a majority of votes to be certified, the necessary majority was not obtained.

The Takeaway:  I commend the NLRB for attempting to clarify the standard used when considering dual marked ballots.  As the NLRB wrote in its order, there had been a long and confusing group of prior decisions that addressed how dual marked ballots should be handled.  The NLRB smartly came to the conclusion that it was not in a position to determine intent when reviewing dual marked ballots.  Rather than getting into a guessing game every time it was confronted with a dual marked ballot, adopting the “bright line rule” provides clarity on how to handle dual marked ballots going forward.  I would tally this order as a win for employers as it takes away a lot of the ambiguity and guessing that had been previously involved with dual marked ballots.

Date:  May 13, 2020

Order:  https://apps.nlrb.gov/link/document.aspx/09031d45830e3fe3

Comments

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...