A Union-Election Notice Conflicts With a Polling Agreement: Compare Both Before Challenging a Ballot

When a challenged ballot involves a polling-location restriction, preserve the official notice and the separate agreement. Then identify the voter’s eligibility, the sessions actually offered and what the voter was told. A dispute about the written arrangement may turn on how it affected access and what the eligible voter reasonably followed.

In the January 23, 2026 Reproductive Medicine Associates of Northern California order, the NLRB denied review of a decision to open and count a determinative ballot. It considered unequal polling options, the posted notice’s unrestricted language and the undisputedly eligible voter’s good-faith conduct together.

Keep the exact notice at every affected location

Preserve a dated copy or photograph showing the complete notice, polling sites and sessions. Note where it was displayed and any different version. If a party relies on a correction or additional instruction, identify its text, when it appeared and how the voter received it.

The notice in the case told employees they were free to vote whenever the polls were open and did not state the agreement’s location limits. That specific mismatch mattered. A summary saying “there was a posting” would not reveal it.

Read what the agreement actually resolves

Separate eligibility—who is entitled to vote—from scheduling and location restrictions. Identify which employees the agreement covers and what options it gives them. Preserve the signed document and any regional materials explaining its role.

The agreement in the case resolved, at most, the eligibility of 9 of approximately 64 employees. It otherwise limited voting at Danville and Palo Alto. Most voters effectively had one date at San Francisco, while some had a choice between two dates and sessions. The Board treated that disparity as part of the problem. Reproductive Medicine Associates, order, page 1 n.1.

Document the voter’s actual circumstances

Identify whether eligibility is disputed, which session the person used and what notice or instruction the person followed. Keep first-hand information separate from assumptions about motive. Do not seek to expose the person’s ballot choice when the issue concerns the right to have an eligible ballot counted.

For example, if the parties disagree over whether a location limit was communicated, the full posted notice and actual supplemental instruction may clarify the disagreement. The example identifies records to examine; it does not decide whether a challenge must succeed or fail.

Explain why this arrangement should or should not be enforced

The Board relied on the principle that it will not enforce party stipulations contrary to the record, the Act or established Board policy, citing T & L Leasing, 318 NLRB 324, 325 (1995). It distinguished the comprehensive eligibility agreements typically associated with Norris-Thermador Corp., 119 NLRB 1301 (1958). Reproductive Medicine Associates, order, page 1 n.1.

A review should therefore address the agreement’s actual scope and the combined circumstances, rather than declaring that either the notice or the side agreement always wins. The Region’s role in drafting this agreement did not change the Board’s conclusion.

Bring the challenged-ballot decision and the documents behind it

Keep the notice, agreement, challenge record, relevant regional ruling and any request for review together. Identify the exact action ordered—such as opening and counting a determinative ballot—and the present stage. Counsel can then assess the actual issue, response requirements and available relief without reconstructing the election from partial descriptions.