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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

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