Union Elections Conducting a Secret Ballot Election

Issue: A certification petition has been filed with the National Labor Relations Board to determine whether a union should be certified to represent your company’s employees. The NLRB regional office has indicated that it will conduct an election by secret ballot. What can you expect about the actual balloting process?

Answer: Once a certification petition has been properly filed with the Board’s appropriate Regional Office, the Board will:

1. Investigate;


2. Determine that the employer of the employees involved is one over which the Board can and will assert jurisdiction;


3. Hold a hearing upon due notice if “reasonable cause to believe a question of representation affecting commerce exists”;


4. Direct an election by secret ballot if such question is found to exist, and conduct a run-off election if three or more choices do not net a majority choice; and


5. Either certify the union which wins a majority of the votes cast, or certify the results of the election of there is no union majority.

Under the NLRA, an election must be by secret ballot.
Expedited elections are a statutory exception to this rule, but the Board has chosen to use the secret ballot here, also.

Ballots are supplied by the NLRB.
No one at any time, with the exception of a Board agent and the voter who votes that ballot, should be permitted to handle any ballot, according to the NLRB’s case-handling manual.

Checklist: Validity of union election ballots
In order for a ballot to be valid, the following factors must be met:

1. Must be cast by an eligible voter
2. Must be official

• unofficial ballots will be voided
• a blank sheet of paper same size and color as ballot and allegedly handed to voter by Board agent is not official

1. Must be secret

• can’t be signed
• can’t have deliberate marks or writings that could identify the voter
• can’t be marked at table and displayed to waiting voters
• challenged voter may waive secrecy requirement

1. Must clearly show voter’s intent

• valid: a check instead of an “X” in voting box
• valid: “si” in the “Yes-Si” box of bilingual ballot
• valid: “si” written clearly on back of ballot instead of an “X” in proper square on front
• valid: words added next to marked square, where intent evident and identity not disclosed by “do I ever” by “Yes” box; “Hell” next to “No” box on ballot
• valid: erasures, as long as choice is clear
• valid: an “X” and additional markings in “Yes” box but no other marks elsewhere on ballot

1. Must be placed in ballot box (unless balloting is by mail)

• ballot on floor near box voided

1. Must be cast within time period set for the election

• refused where ballot box was sealed, and neither observers nor potential voter objected to decision to preclude voter from voting
• permitted where late arrival beyond control of voter
• permitted where mail ballot sent three days before closing date and voter could have assumed it would have a timely arrival

Cite: NLRA, Section 8(b)(7); Sec. 9(c)(1).

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