How The National Labor Relations Board Determines Voter Intent in Representation Elections

Labor & Employment Law Articles

How The National Labor Relations Board Determines Voter Intent in Representation Elections

In the 2000 Presidential election, Florida officials were faced with the task of interpreting voter intent by examining computer punch cards to determine if hanging or dimpled chads were present. Frequently, the National Labor Relations Board (NLRB) must also determine voter intent in representation elections they conduct in determining whether workers wish to be represented by a union. Their task is in some ways both simpler and more complicated than the task faced by the Florida officials. The NLRB does not have to worry about hanging or dimpled chads. They use paper ballots which are marked manually and counted manually. On the other hand, they have to deal with an endless number of ways in which workers decide to mark their ballots.

The instructions given to voters are quite simple: Mark an “X” in the box of your choice. Do not write anything else on the ballot. Language is usually not an issue. The ballots are translated into as many languages and dialects as are spoken by the workers at the site. Translators are utilized at election sites wherever necessary. Nonetheless, voters manage to come up with creative ways of marking their ballots. For example, in a recent case, the voter did not put any mark in the “Yes” box but wrote two diagonal lines across the “No” rectangle and two lines bisecting the “No” rectangle on its short and long sides. The Union in that case argued that the voter was trying to cross out the “No” box leaving a “Yes” vote. The Board rejected the argument, finding that when there is only a mark in one box, the voter intends to vote as indicated by the box.

The Board generally tries to give effect to voter intent whenever possible and to count any unambiguous expression of voter intent as expressed on the ballot. In a 1996 decision, the NLRB held that a ballot which contained a single diagonal line in the “Yes” box and a fully-marked “X” in the “No” box was void. The Board concluded that where a voter marks both boxes on the ballot and the voter’s intent cannot be ascertained from other markings on the ballot, the ballot is void. However, in a 1998 case, the Board held that a smudged diagonal line in the “Yes” box and 7 “X”s in the “No” area of the ballot, including a full “X” in the “No” box, clearly expressed the voter’s intent to vote “No” in the election. The Board concluded that the smudge mark was an attempted erasure. In any event, the additional “X”s on the ballot constituted additional markings from which voter intent could be ascertained. In another 1998 case, the Board held that a ballot in which an “X” was placed in the “Yes” box, a diagonal line was placed in the “No” box, and the word “Yes” above the “Yes” box was circled, was counted as a “Yes” vote.

Under NLRB law, voters must also refrain from putting any additional markings on the ballot by which the identity of the voter can be ascertained. Thus, any ballot, which is signed, or contains a nickname or initials, or drawing is declared void. The reason for this policy is that a ballot, which is intentionally marked in such a manner as to reveal the identity of the voter, destroys the secrecy of the ballot. The individual voter views the policy of secrecy as a matter of public concern rather than a personal privilege subject to waiver. Thus, the secrecy of the ballot is viewed as outweighing the voter’s intent. However, where additional markings appear to have been made inadvertently, they will not void a ballot. Similarly, if a voter shows his or her marked ballot to other voters, that ballot will be held invalid. In a 1979 case, the Board was confronted with the issue presented by a voter who refused to go into the voting booth to mark his ballot. Instead, he went to a nearby table and began marking his ballot in plain view of the other voters. When the Board Agent conducting the election noticed this conduct, he instructed the voter to go into the booth, the voter again refused and held his ballot up to the other voters stating, “This is a “no” vote against the Union.” At this point, the Board Agent took away the ballot from him and declared that his ballot was void.

Based on the above, it is advisable for the employer facing an NLRB representation election to thoroughly instruct its employees as to proper protocol for voting procedures. If we can be of assistance in guiding you through the process of an NLRB election, please do not hesitate to call us.