New Rule For Altered Sample Ballots

October 13, 2007 by Beeson Tayer & Bodine

In one of the few noncontroversial decisions issued by the Board in late September, the Board has adopted a new rule for the treatment of election objections based on alterations of the Board’s official sample ballot.

Exuberant employees sometimes mark the “yes” or “no” box of the sample ballot included in the official election notice posted prior to Board elections. And unions often mail prospective voters sample ballots with the “yes” box checked.

Since 1985 the Board has addressed election objections complaining about such altered ballots on a case-bycase basis, evaluating whether the altered ballot would have tendency to mislead employees into believing the Board favors one party over another. If so, the election results were overturned.

In Ryder Memorial Hospital, 351 NLRB No. 26 (September 28, 2007), the Board abandoned this test, replacing it with a new, blanket rule. The new rule has two parts.

First, the Board’s election notice will now contain new language clearly stating that the Board is neutral and that any alterations to the sample ballot were not put there by the Board (see the revised election notice at right).

Second, given the disclaimer language added to the official sample ballot, the Board will no longer set aside an election based on alterations in the sample ballot posted at the election site, or based on a party’s distribution of an altered sample ballot, provided the sample ballot is an actual reproduction of the Board’s sample ballot and includes the new disclaimer.

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