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Volume X, Number 194

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July 09, 2020

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NLRB Provides Clarity and Consistency to Stray Marks on Ballots

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation.

In a dispute between Providence Portland Medical Center (the “Employer”) and Service Employees International Union Local 49 (the “Union”), the representation election was decided by the narrowest margin, ultimately resulting in 383 votes for representation, and 382 votes against representation. Included in the mix was a single ballot with a clear “X” in the “Yes” box and a dark diagonal line with a smudge mark in the “No” box. The ALJ and Regional Director applied Board precedent and both concluded that the smudge mark on the diagonal line in the “No” box was an “obvious attempt at erasure,” resulting in the ballot being counted in favor of representation.

The Board summarized the history of past decisions dealing with stray marks and recognized that the decisions were inconsistent. One line of decisions, the Caribe line, looked to voter intent, requiring the Board to divine intent from indicia such as whether a stray mark was accompanied by an attempt to erase, scratch over, or otherwise “obliterate” the mark. Another case, Daimler-Chrysler, stood for the view that the Board should avoid speculation and inferences regarding the meaning of stray marks. The Board observed that one view led to impermissible subjectivity, running up costs and prolonging the resolution of the question of representation, while the other supported an objective approach to dealing with stray marks, but failed to establish a hard and fast rule.

In the interests of clarity and predictability, the Board established the bright-line rule that a ballot containing markings in more than one box is void. The Board overruled any conflicting cases and noted that its decision will preserve Board and party resources and expedite the election process as it will no longer be asked to divine voter intent from errant markings. The Board found no injustice in applying this bright-line rule retroactively, because of the inconsistency in past precedent, the issue in the case arose only after the ballot was cast, and, perhaps most importantly, neither party could have been prejudiced by relying on Board precedent because an employee, not the Employer or the Union, cast the ballot (the Board deemed it “highly unlikely” that the employee relied on Board precedent in casting the ballot).

This change in the law brings with it the risk that employees will unknowingly cast void ballots because ballots do not sufficiently warn employees of the effects of stray marks. To address this, the Board revised its official ballot language, in relevant part, to “If you submit a ballot with markings inside, or anywhere around, more than one square, your ballot will not be counted.”

This bright-line rule provides clarity and objectivity to a once murky and subjective practice, and takes the power from the Board to decide representation elections by interpreting stray markings on ballots.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 156


About this Author

Lukas Moffett Employment Lawyer Hunton AK

As an associate in the firm’s labor and employment group, Lukas assists clients in employment litigation and general compliance matters.

Lukas focuses on litigation matters involving employment discrimination and the employer/employee covenant relationship. Lukas also helps employers comply with anti-discrimination laws by advising on employee termination and consultation procedures. In addition, he is involved in the firm’s pro bono efforts.

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Amber Rogers Employment Lawyer Hunton Andrews Kurth

Amber’s national practice assists clients with traditional labor relations and litigation, employment advice and counseling, and complex employment litigation.

Amber is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and is a trial lawyer who has extensive experience representing and advising clients in traditional labor relations, such as collective bargaining, representation elections, decertification elections, unfair labor practice charges, arbitrating grievances, contract administration and interpretation, and union avoidance strategies.  Amber also serves as the Hiring Partner for the firm’s Dallas office.

Amber also provides strategic day-to-day advice and counseling for clients. As a part of Amber’s partnership with clients to avoid litigation, she frequently conducts and coordinates sensitive corporate investigations, and provides training presentations for clients on a multitude of topics such as pay equity, anti-harassment and anti-discrimination, diversity and inclusion, labor relations, and issues related to the Family and Medical Leave Act and the Americans With Disabilities Act.

Amber’s litigation experience also includes regularly representing clients in wage and hour collective and class actions, trade secrets and post-employment restrictive covenant disputes, and complex employment discrimination.  Amber’s practice also focuses on defending employers before administrative agencies, such as the NLRB, EEOC, DOL, and OFCCP. Regarding the OFCCP, Amber’s work focuses on affirmative action work and audit defense, and advising and counseling clients on various diversity and inclusion policies and practices. Amber represents clients in all industries, and has particular experience working with clients in the energy and utilities, financial institutions, health care, food processing, staffing, manufacturers, transportation, and retail sectors.

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