Under the National Labor Relations Act, the National Labor Relations Board (NLRB) conducts secret ballot elections to determine whether or not employees in a unit wish to be represented by a union.
The Board’s official ballot instructs voters to “MARK AN ‘X’ IN THE SQUARE OF YOUR CHOICE,” directing them to mark one of two boxes, either for “YES” or “NO.” The boxes each are in separate shaded areas called squares.
With nearly all ballots, identifying and counting the employee’s choice is easy because he or she clearly put a mark in only one box. In some situations, where various marks in both the “yes” and “no” boxes or squares made the vote unclear, the Board has tried various approaches to discern the voter’s intent. Because ballots are unsigned and secret, so that a voter cannot be identified or called to explain the markings on a ballot, such an exercise often resulted in at least some speculation.
The NLRB now has put an unequivocal end to these exercises to glean the voter’s intent with such “dual-marked” ballots, with marks in both the “yes” and “no” boxes or squares. Its new precedent decision in Providence Health & Services – Oregon d/b/a Providence Portland Medical Center adopted a new bright line rule: Whenever a ballot “includes markings in more than one square or box, it is void.” At the same time, the Board ordered changes to instructions on the ballot in an effort to prevent employees from voiding their ballots by making additional marks.
The case concerned a union election to determine whether a unit of hospital employees wanted to be represented by the Service Employees International Union. With other challenges to a ballot having been resolved, the vote tally before the Board stood at 383 votes each in favor of the union and against representation. One challenged, a dual-marked ballot was determinative. It contained an “X” in the “yes” box, along with a partly smudged diagonal line in the “no” box.
In counting the ballots, the Board Agent ruled the ballot void. After a hearing before an administrative law judge, however, the Regional Director ordered the ballot counted in favor of the union. The Regional Director thought that the smudging in the “no” box represented an attempt to erase an incomplete “X’ in the “no” box. In adopting its new rule, the Board reversed and rejected the ballot as void. The final tie vote resulted in a loss for the union, because it failed to win the required majority of votes cast.
The NLRB’s decision surveyed various approaches it has used over time to decipher dual-marked ballots, with varying results. The Board found “it difficult to discern any consistent approach or principle guiding the Board’s decisions in this area,” especially with ballots containing an “X” in one box and a line in the other box. Different approaches included treating such ballots as void, counting the ballot as a vote for whichever square contained an “X,” and whether intent could be ascertained from other markings or attempted erasures on the ballot.
Surveying cases, the NLRB stated how they “illustrate a seemingly limitless variety of irregular markings that a voter may apply to a ballot and the difficulty of interpreting such markings objectively.” In one case, the parties even stipulated into evidence the pencil used in voting, which still failed to resolve the issue. The decision recognized that the “actual cause of marks, smudges, and blurs is almost impossible to ascertain after a voter has cast his or her ballot.” As a result, the Board concluded that “attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible ‘corrections’ are impermissibly subjective.” Thus, in the current Board’s view, each of the past efforts to do so “ultimately resorted to speculation as to the possible meaning of the dual-marked ballots.”
For example, in the situation at issue in Providence Health & Services, the Board noted that the challenged ballot could have involved an attempted erasure or obliteration in the “no” box. Yet, the NLRB recognized that it was “also possible” that the smudge resulted from “the voter’s sweaty hands or the manner in which the voter folded the ballot.” Without testimony from the voter, it held, “any discussion of what such ballots mean in terms of ‘objective’ intent is, by nature, speculative.” Determining voter intent with dual-marked ballots is “beyond the Board’s special expertise, is susceptible to becoming a subjective inquiry, and ultimately rests on speculation of the sort the Board has otherwise committed itself to avoiding.”
The decision concluded that the NLRB “cannot objectively determine a voter’s intent” with dual-marked ballots. Consequently, it decided that the agency no longer will even try. The Board determined that it and its stakeholders “will best be served with the establishment of an objective, bright-line rule” for dual-marked ballots. Thus, now, “where a ballot includes markings in more than one square or box, it is void.” The Board overruled all prior cases holding contrary to this rule. It further ordered that its new decision apply retroactively to cases still pending.
At the same time, in an effort to reduce or eliminate dual-marked ballots, the NLRB ordered changes to the directions that voters receive. The Board’s ballot has told voters: “If you spoil this ballot, return it to the Board Agent for a new one.” For example, a voter could “spoil” a ballot by marking in the incorrect box or square. In such situations, the voter can – and should – ask for a new ballot rather than attempting to make erasures or obliterations in an effort to correct his or her mistake. Under the new decision, such marks would void the ballot.
Going forward, the NLRB’s ballot instead will tell voters: “Mark an ‘X’ in the square of your choice only. If you make markings inside, or anywhere around, more than one square, return your ballot to the Board Agent and ask for a new ballot. If you submit a ballot with markings inside, or anywhere around, more than one square, your ballot will not be counted.”
The NLRB’s new bright-line rule rejecting dual-marked ballots eliminates uncertainty over whether such ballots should be counted and, if so, what characteristics to consider and how. As the Board discussed, efforts to divine how, if at all, dual-marked ballots voted inevitably resulted in inconsistent and subjective determinations. The new ballot instructions, however, will give voters much clearer direction and serve to avoid inadvertent dual-marking that would void a ballot.