Reproductive Medicine Associates: Why the NLRB Counted a Ballot Cast Outside a Location Agreement

In Reproductive Medicine Associates of Northern California, the National Labor Relations Board affirmed an Acting Regional Director’s decision to open and count a determinative challenged ballot cast during a representation election. The employer sought to enforce a written agreement that restricted specific voting locations, arguing that the ballot cast at an unassigned polling site was invalid under the parties’ written arrangement.

The Voting Agreement and Posted Election Notice

The bargaining unit consisted of approximately 64 employees. The parties’ agreement resolved, at most, the voter eligibility of 9 employees while setting location limitations for polling sessions in Danville and Palo Alto. Most unit employees were required to vote on a single date at the San Francisco polling site, whereas selected employees received the option to vote on one of two dates across two polling sessions. However, the official Notice of Election posted by the Board omitted these location restrictions entirely. Instead, the posted notice informed workers: “EMPLOYEES ARE FREE TO VOTE AT ANY TIME THE POLLS ARE OPEN.” An undisputedly eligible voter cast a ballot at the Palo Alto polling session in reliance on the posted notice, prompting the employer’s challenge.

Statutory Standards for Enforcing Election Agreements

The Board acknowledged that the voter’s ballot violated the plain text of the parties’ side agreement regarding polling locations. Nevertheless, the Board refused to sustain the challenge. Under established Board policy articulated in T & L Leasing, the Board refuses to enforce party stipulations that conflict with record evidence, the National Labor Relations Act, or Board policy.

The Board distinguished comprehensive voter eligibility agreements governed by Norris-Thermador Corp., which resolve the eligibility of all unit voters. The agreement in this case resolved eligibility for only 9 workers and created disparate voting access by granting multi-session voting choices to a select group while restricting others. Because the posted Notice of Election assured employees they could vote at any open polling session, disenfranchising an eligible voter who acted in good faith reliance on that official notice would violate Board policy.

Role of Regional Office Drafting and Disposition

The Board noted that participation by a Board Regional office in soliciting or drafting a side agreement does not validate an improper restriction or compel enforcement against an eligible worker. The Board denied the employer’s request for review, ordering the determinative ballot opened and counted.

Practical Legal Guidance

The Board considered the circumstances together: Disparate access to polling sessions, an official notice that omitted the restrictions, and an undisputedly eligible voter’s good-faith compliance with that notice. The practical task is to compare those facts, rather than assume either an agreement or a notice invariably controls every challenged ballot.

Members Prouty and Murphy issued the denial; Member Mayer separately concurred. Reproductive Medicine Associates, order, pages 1–2.

The Board also reminded Regions that a qualifying Norris-Thermador agreement resolves eligibility for all voters; the partial agreement here did not do so. Regions should ensure that agreements solicited or drafted for that purpose actually cover all-voter eligibility. Reproductive Medicine Associates, order, page 1 n.1.