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

Post a Comment

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,...
Post a Comment
Read more

Breaking: Labor Secretary Rumored to Be Leaving Administration

A few hours ago, word leaked out that Labor Secretary Marty Walsh (“Walsh”) is in the midst of negotiations to head up the NHL Players Union and leave his position at the Labor Department. Walsh, who has served as the sole Labor Secretary under President Biden, has taken part in a labor renaissance of sorts as support for organized labor has increased during his term as Labor Secretary (although the number of workers that have joined a union over the past two years has not grown as mush as some expected.)  He has also overseen the ongoing negotiations with rail workers over a new contract, although that matter is still on shaky ground and playing out as we speak. As for who might step into the vacant Labor Secretary role, there are already rumblings that President Biden should nominate Deputy Labor Secretary Julie Su (a strong labor advocate) or even a progressive like Senator Bernie Sanders.  Until Walsh officially gives his notice, however, I would expect some/many potential...
Post a Comment
Read more

New Jersey Governor Chris Christie Vetoes Minimum Wage Hike

A few months ago, readers might remember that I pointed out that the New Jersey Legislature had voted to approve a minimum wage hike in the state .  Under the approved legislation, the minimum wage rate would rise to $10.10/hour in the next year and at least $15/hour over the next five.  (The current minimum wage rate in the state is $8.38/hour).  In that article, I had noted that the bill was then going to go before Governor Chris Christie for his approval or veto. As I had suggested previously, I thought that the Governor would likely veto the bill based upon his prior actions and comments on similar legislation.  Well, a few days ago, Governor Christie did just that and vetoed the bill on the grounds that it "would trigger an escalation of wages that will make doing business in New Jersey unfathomable."  Pointing to the increase in hourly minimum wage rates, the Governor referred to the bill as a "really radical increase."  (It is interesting to c...
Post a Comment
Read more