The National Labor Relations Board (NLRB) recently announced that it will not set aside a representation election based on a party’s distribution of an altered sample ballot, provided the altered ballot is an actual reproduction of the Board’s recently revised sample ballot, which includes newly added disclaimer language.
The National Labor Relations Board (NLRB) recently announced that it will not set aside a representation election based on a party’s distribution of an altered sample ballot, provided the altered ballot is an actual reproduction of the Board’s recently revised sample ballot, which includes newly added disclaimer language. See Ryder Memorial Hospital, 351 NLRB No. 26 (September 28, 2007). In Ryder, the Board announced that it has revised the sample ballot included with a Notice of Election to include a disclaimer stating: “The National Labor Relations Board does not endorse any choice in this election. Any markings that you may see on any sample ballot have not been put there by the National Labor Relations Board.”
The Board’s Notice of Election is a tri-fold, 14 by 25 inch document, which includes a sample ballot on the center panel. The ballot asks the voter if he/she wishes to be represented for purposes of collective bargaining by the union that filed the election petition. Since 1993, a disclaimer spanning all three panels has been included on the Notice. However, labor unions sometimes photocopy just the Board’s sample ballot and distribute it in an altered form (marked “yes”). These photocopied altered sample ballots may not include the disclaimer or may include only a portion of it.
Frequently, the losing party in an election files an objection to the use of an altered sample ballot, claiming it misled employees. In the past, when an altered sample ballot did not identify the party that prepared it, the Board would determine, on a case-by-case basis, whether the document had a tendency to mislead employees into believing that the Board favored one party over another.
In Ryder, the Board stated that revising the sample ballot to include the full text of the disclaimer eliminates the need for a case-by-case consideration of election challenges based on altered sample ballots. The Board stated that this revision should minimize post-election litigation and ensure that voters clearly understand that the Board does not endorse any choice in elections.
The explicit disclaimer language set forth above will appear on both the actual ballots cast by employees in the election and the sample ballot contained on the Notice of Election, and is in addition to the existing disclaimer language on the bottom of the Notice of Election.
Employers’ Bottom Line:
An employer in a union election case should anticipate the union distributing altered sample ballots to employees shortly before the election. Employers who wish to do so can now lawfully distribute a reproduction of the Board’s sample ballot with the “no” box checked, without concern that this will cause the Board to set aside the election, as long as the reproduction includes the newly added disclaimer language.
Employers will often conduct group meetings with the employees shortly before the election to demonstrate how to complete the ballot if they do not want to be represented by the union. The Ryder decision will make it easier for employers to show their pro-company employees how to make their opinions known on election day. Just remember that no group meetings on company time can be conducted within twenty-four hours of the opening of the polls. If an employer violates the rule and wins the election, the Board will overturn the election results if the union files objections.
If you have any questions regarding this decision, election campaigns or labor related issues in general, please contact the Ford & Harrison attorney with whom you usually work or Jerry Coker, jcoker@fordharrison.com, 404-888-3820 or Don Lee, dlee@fordharrison.com, 404-888-3861.