Caution: This manual has been developed as a guide for personnel conducting secret ballot votes in connection with WERC proceedings. It is not to be construed as an official ruling of the Commission, and it does not supercede the Wisconsin Statutes and Administrative Rules or any WERC case law.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
|I N D E X|
|CHAPTER I — Pre-Opening|
|Explaining duties of observers|
|Sealing the ballot box prior to the balloting.|
|Voters who arrive before opening of polls|
|Handling of mail ballots|
|CHAPTER II — Election Procedure|
|Progress of voters|
|Procedure at checking table|
|Close of polls|
|CHAPTER III — Special Rules|
|Observers may not electioneer|
|Along line of march|
|Multiple polling places|
|Absentee ballot procedure|
|Mixed manual-mail elections|
|CHAPTER IV — Challenges|
|Who may challenge|
|Notation of potential challenges|
|Merit of challenge should not be argued|
|Exclusions in decision|
|Mail ballots challenged|
|CHAPTER V — Count|
|Time and place|
|Interpretation of ballots|
|Preparation of the tally of ballots|
|execution of tally of ballots|
|Service of tally of ballots|
|CHAPTER VI — Special Procedures|
|Combined unit determination and representation election|
|Instructions to Election Observers|
|Procedure for mail distribution of notice and ballots|
1. Pre-opening: The Commission agent(s) and observers should assemble at the polling place from 15 to 30 minutes depending on the complexity of the election) prior to the opening of the polls.
Commission agent(s) should check to see that all equipment is available and in place.
2. Equipment includes:
|Voter eligibility lists|
|Challenged ballot envelopes|
|Rules of Employment Relations Commission (ERB 1.01 – 31.20)|
|Collective Bargaining Statutes (WEPA, SELRA, MERA)|
|Instructions to election observers|
3. Explaining duties of observers: Commission agent should identify and greet the observers and provide them with a copy of the “Instructions to Election Observers”. The Commission agent should allow an opportunity for the observers to ask any questions about procedure (See Appendix A).
Only one observer per party (unless otherwise agreed to by the parties) should be allowed at a voting table overseen by a Commission agent.
4. “Outside” representatives: Prior to the opening of the Polls, representatives of the parties, whoever they might be, should be permitted to inspect the polling place. Such representatives may be present during the preparation of the ballot box. Their objections should be disposed of in accordance with their merits. Finally, before the polls are opened, unless they are the observers, they should be asked to leave the polling site.
5. Sealing the ballot box prior to the balloting: The representatives of the parties should be asked to inspect the ballot box while it is open and to affirm that it is empty. Then, in their presence, it should be closed and securely sealed.
The ballot box should then be placed in an area away from the “line of voters” and easily accessible to the voters and one which will also insure a secret ballot. It is important that the ballot box be in plain view of the Commission agent and the observers at all times during the election.
6. Voters who arrive before opening of polls: “Early-birds” should not be permitted to vote prior to the time scheduled. Those who arrive should not be sent away but should be asked to line up. If employe states that he/she must leave, the employe should be told during which hours he/she may vote if he/she wishes.
Exception: If an eligible voter expresses a valid reason for having to leave before the scheduled opening of the polls, he/she may be allowed to vote early, if, and only if, both observers agree. In such case the ballot should be placed in a sealed envelope with envelope indicating the name of voter, time and reason for request to vote early.
7. Handling of mail ballots: If there is combined manual and mail voting, the following must be done during the preelection period:
The returned envelopes are treated as “voters” approaching the checking table. The observers at the table make their marks alongside the respective names on the list. (In addition to marks made as receipt of ballot in Commission’s office.) They may challenge mail ballots as if they were manually cast.
The envelopes (containing identification information), of the voters are then opened. The blank envelopes are then mixed thoroughly before the ballots are extracted and dropped into the ballot box.
Note: The Commission elections officer will advise the election clerk prior to the election if there are any mail ballots and if necessary where they are to be picked up prior to the election, in sufficient time to be taken to the polling place. The Commission elections officer will also submit an affidavit indicating the identity of the employes who voted by mail.
1. Progress of Voters: Upon entering the polling place the voter proceeds to checking table. Any waiting line of voters should be maintained as not to obstruct the view of the ballot box.
2. Procedure at checking table: At the checking table are the observers of the parties who sit behind the table with the Commission agent. Before them is the part of the eligibility list applicable to that table. In addition, each observer should have a copy of the eligibility list provided by the Commission.
The official eligibility list is the only record made showing whether a person named thereon has voted. The observers’ attention should be directed to the important task of checking the employes on that list who have voted and they should not be distracted by keeping other records.
The approaching voters, who should by that time have formed a line, should be asked to state their names, last names first, as they reach the table. They may also be asked for other information, if their identity is in doubt. The voter should give this information; it should not be given by an observer, subject to assent by the voter. Once a voter’s name has been located on the eligibility list, and the observers are satisfied as to his/her identity, and no one challenges his/her eligibility, each observer at the checking table should make a mark beside the name. Each observer uses different colored pens or pencils. Where there is only one union on the ballot an observer should indicate his marks prior to the name of the voter, and the other after.
Once a voter has been identified and checked off, the observers should indicate this to the Commission agent (“okay”), who will then hand one ballot to the voter.
Only the Commission agent handles unused ballots. They must remain in his/her personal custody at all times.
It is at the checking table, normally, that challenges are made. (For procedure to be followed, see Challenges.) (In large elections, a challenged voter may be directed to a challenge table.)
3. Voting booth: The voter proceeds from the checking table to the voting booth. The Commission agent should police this area to see that there are no cross-conversations between the voter and others and that there is no more than one occupant per booth or area provided. If, in patrolling the polling place, the election agent must leave the voting table, he/she should take all unused ballot with him/her.
4. Spoiled ballots: A voter who spoils his/her ballot and returns it to the Commission agent may be given a fresh ballot. Upon request the Commission agent should show the spoiled ballot to the observers, provided no voting preferences are thereby disclosed. Spoiled ballots should be preserved by placing in a blank envelope marked “spoiled ballot”.
5. Ballot box: The voter leaves the booth and drops his/her folded ballot into the ballot box. No other person should handle the ballot.
After depositing the ballot the voter should leave the polling place. They should not be permitted to loiter, or wait in the polling place for other voters.
6. Close of polls: As the election approaches its close, there may be a lull in activities. This should not be an excuse for a general relaxation of formality.
The polls may be closed early if “100 percent of the eligible voters” have voted and if the observers agree.
The polls should be declared closed exactly at the scheduled time previously determined as appearing on the Notice, as indicated by the timepiece selected by the Commission agent prior to the opening of the polls.
The closing time should not be extended just because the election opened late, unless agreed to by the parties prior to the balloting.
Only in unusual cases may voting time be extended at the discretion of the Commission agent or by written agreement of the observers with acquiescence of the agent.
All in the voting line at the time scheduled for closing should be permitted to vote, even though the election is prolonged thereby. Those who join the line thereafter should not be permitted to vote, absent unusual circumstances.
If the ballots are to be taken to another, location for counting, then the slot in the ballot box should be sealed at the close of the balloting. The agent should have the observers initial the tape sealing the ballot box. The Commission agent should, thereafter, until the count, maintain personal custody of the ballot box, unless, by unanimous agreement, other arrangements are made. See also Split-Session Elections and Multiple Polling Places.
At the close of the election, each observer should be requested to sign the Commission’s official eligibility list with their respective pen colors. They should also be requested to affix their signature to the tally sheet.
If one refuses to sign, he/she should be asked for his reasons: the explanation should be reduced to writing, which he/she should then be asked to sign. If a party had no observer, the Commission agent should write “No representative” in the appropriate space.
1. Electioneering: No electioneering will be permitted at or about the polling place during the hours of voting.
2. Observers may not electioneer: Election observers may not electioneer during their hours of duty.
3. Voters: Voters need not remove insignia, even though they constitute “electioneering” material. Nor need their conversations be monitored, unless there is talk loud enough to constitute a disturbance.
4. Along line of march: Electioneering by eligible voters above and beyond their normal conversations and outside their normal place in line should be stopped.
There should be no “organized” electioneering along the line of march between workplace and polls, whether the polling place be 20 feet or 5 blocks from the workplace. Distribution of handbills and vote-solicitation by supervisors or by union agents should be stopped.
5. Split-session elections: What has been said of opening and closing elections applies equally to-split-session elections. Polls should be opened and closed in accordance with the times designated in the notice of election.
At the close of a voting session, which is not the last one, observers should sign the eligibility list with the added notation “Session #1” or “a.m. session”. The ballot box slot should be securely sealed with masking tape and observers should be encouraged to make any markings thereon which will assure them, upon resumption of voting, that the box has not been tampered with.
The agent should inform the parties that he/she will retain the ballot box between sessions (this should be communicated to the parties when the election arrangements are first determined. If any serious objections are raised, then alternative arrangements must be agreed upon by the parties. For example, the parties may agree to place the ballot box in the custody of the local police between sessions.
6. Multiple polling places. Where more than one polling place is open, either simultaneously, at different times, or with overlapping periods, the procedures are basically the same as those applying to a single polling place. Each polling place should be set up along the lines noted previously.
Where the polls are open simultaneously, a voter should normally be required to vote at a place (usually determined by work location) which has been designated in the notice of election . His/her name will appear on the eligibility list only at that location. In appropriate circumstances, e.g., where delivery truck drivers or roving repair crews work is not subject to a predetermined reporting-in time or place, a voter’s name may appear on eligibility lists at more than one polling place. In this event, the voter casts a challenged ballot at any of the polls designated for this type of employe and the challenge is cleared before any votes are counted. If no two polling places are open simultaneously, and only one eligibility list is used, voters may normally vote at any place while voting is going on. The emphasis should be upon the absolute prevention of duplicate voting.
“Closing” procedures, such as sealing the ballot box should also be observed at each polling place.
The same ballot box may be used at more than one polling place if the voting periods do not overlap.
At the close of voting, the ballot boxes used at all polls are brought together and the contents of all the boxes are thoroughly mixed before the count takes place.
7. “Traveling” elections: If circumstances call for it, the polls may “move” from place to place. An example is the situation of an election among employes of an employer who work in groups of four, or five, at eight different locations within a radius of 40 miles.
The voting is conducted by a traveling Commission agent, usually accompanied by an observer representing each party. (Often, an observer, who knows the employes and who will check the eligibility list, is temporarily added to the crew at each location ) ]he opening and closing of each voting period should be accompanied by the same formalities as those involving the opening and closing of a “regular” polling place.
The voting hours at each place should be scheduled in advance and should appear on the notice of election. In scheduling, potential weather, road, and automobile problems should be considered, it is better to allow for too much travel time than for too little.
Voting at each place should commence on time, if humanly possible. Ordinarily, it should not end earlier than the scheduled hour.
8. Mail ballots: Voting may be conducted by mail, in whole or in part. Particularly where long distances are involved or where eligible voters are scattered because of their duties, the possibility should be explored. The decision as to whether, or to what extent, mail voting should be employed, should be made by the Commission.
9. Absentee ballot procedure: Mail ballots will not be
provided, except on the basis of a signed statement executed by the individual employe in the presence of a notary pubic, establishing that a mail ballot is justified, e.g., the employe is ill, o)r will be on vacation outside the community, or otherwise absent from the community on the date of the election. Such statement must be received by the Commission in Madison at least ten (10) days prior to the election. Any questions regarding the application of this policy should be referred to the Elections Supervisor.
Nor should ballots be sent to those employes on layoff status, unless all parties agree, in which case, it is up to the parties to notify those voters that they are eligible to receive a mail ballot. For an elaboration on the procedure for mail distribution off notice and ballots, see Appendix B.
10. Mixed manual-mail elections: In a “mixed” manual-mail election, mail ballots should be sent only to those, who cannot vote in person because of “employer action”: e.g. assignment of employes to duties which make it impossible or impractical for them to come to a polling place. Pipeline employes, seamen, and traveling public utility crews usually are voted by mail, for example.
1. Challenge procedure: The challenge procedure provides a method whereby a voter may still vote while his or her eligibility is called into question. Briefly, this procedure requires that after a voter is challenged, he or she will be allowed to vote, but the ballot will be sealed in a blank envelope by the voter and placed by the Commission agent in a challenged ballot envelope. The Commission will rule on the voter’s eligibility after the election. The details of this procedure are as follows:
2. Who may challenge
a. Any observer may challenge voter for cause. The reason for such challenge should be stated at the time the challenge is made (e.g., suspected supervisory status, gave notice of pending resignation, etc.).
b. The Commission agent may challenge anyone whose name is not on the eligibility list unless both parties agree that such omission was in error.
—–1. Challenges relating to voting procedure. A good example of when a Commission agent must challenge a voter, regardless of the parties’ acceptance of the voter’s eligibility, arises in a multiple-site election with overlapping voting periods. If a voter shows up at a location other than his or her designated polling place (which will be apparent because the voter’s name will not appear on that eligibility list), he or she may still vote under a challenged status. This is to allow a check for double voting, which is ascertainable during the counting period when voting eligibility lists may be cross-checked.
—–2. Challenges relating to substantive issues: The Commission agent will not make substantive challenges on behalf of the parties (e.g., concerning voter eligibility) whether or not such parties have observers present.
3. Challenge procedure
a. Proper time to challenge: In the oral instructions to the observers, they should be informed that the proper time to challenge is when the voter approaches the checking table. Normally, a challenge should be made before the questioned voter receives a ballot. Challenges should be handled as they come up. Challenged voters should not be told to return later, and they should not be allowed to congregate in the polling place awaiting a slack period.
b. Documenting the challenge: When a voter is challenged, the small “c” is placed beside his/her name by the checking observers. (If his/her name does not appear on the list it should be added, in a supplemental list or on the same list, and the “c” inserted.) The Commission agent (at the checking table or in a large election, at a challenge table will fills out the information called for on the face of the challenged ballot envelope – the voter’s name, clock number, job classification, employer, place and date of election, the reason given for the challenge, the identity of the challenger, and his/her (the agent’s) initials. If time permits, he/she may elicit specific information surrounding the voter’s status, for insertion on the reverse side of the envelope, there to be initialed by the voter. It should be emphasized to the voter that in such a case, measures will be taken to protect the secrecy of the challenged ballot. Finally, it should be stated that if the challenged voter’s ballot does not affect the outcome of the election, it will remain sealed.
The voter is then given a ballot and a blank envelope and instructed to enter the booth, mark the ballot, place it in the blank envelope and return to the voting table. Upon his return to the voting table, he/she is given a challenged ballot envelope, seals the envelope, and drops it in the box. Observers stationed at the voting booth area and/or the ballot, box should make sure that the challenged voter when he comes out of the booth, goes to the voting table and does not drop the ballot or blank envelop in the box before placing it in the challenged ballot envelope, and sealing the envelope.
4. Notation of potential challenges: Observers may maintain lists of persons they intend to challenge by the better practice is to permit the parties to note on the eligibility list, at the pre-election check, the persons they intend to challenge. Any such marks made prior to an election, however, must be easily distinguishable from the marks
to be made by observers at the election.
5. Merit of challenge should not be argued: Arguments on the merits a should not be permitted. The steps outlined above should be taken quietly and quickly and the regular voting flow should be impeded as little as possible.
6. Exclusions in decision: Persons in job classifications specifically excluded by the Direction of Election or Referendum should be refused a ballot, even under challenge. The Commission agent must exercise discretion in deciding whether to allow a I vote (under challenge) when the person presents plausible reasons for being permitted to vote despite the exclusion, or if his actually being within in the excluded group is not without question.
7. Mail ballots challenged: Challenged, mail ballots need not be placed in challenge envelopes. “Challenge” should be written across the face of the envelope along with the information usually entered on a
challenged ballot envelope and reason therefore and by whom.
1. Time and place: The count should take place as soon after the close of voting as possible.
If a number of polling places are involved, the count should not begin until all ballot boxes have been collected. If the voting hours have been long and arduous, if the count is expected to be drawn out (see below), and if the personnel participating in the conduct of the election express a desire to recess, the Commission agent may allow a rest or meal period before the count. When there is any intervening interval, extreme pains should be taken lot only in preserving the intactness of the ballot box(es) but also in displaying this fact.
The count may take place at any centrally located site. Typically, in the small election, the count is taken at the polling place. In large elections, if one of the polling places is large enough, the tally can take place there.
2. Persons present: The actual participants in the count are the Commission agent and official observers, in the number necessary. The agent alone first counts the ballots in the presence of the observers and then-allows the observers to count.
Also present may be representatives of time parties, members of the press and other interested persons to the extent permitted by the physical facilities. The Commission agent in charge of the election should use his or her discretion in limiting numbers.
3. “Clearing” challenges: Prior to the count, the parties may wish to dispose of some challenged ballots (i.e., remove the challenge) by consent. Any such desires should be encouraged by the Commission agent, but should not be urged by him/her if there is reluctance in any quarter.
Such clearance, on behalf of each party should be done by someone specifically authorized to act, not merely by any of the observers.
Finally, a challenging party may withdraw from his position on the basis of discussion with the Commission agent and other parties. In such event, though, other parties should be given the opportunity to challenge the same voter.
However – this is important – a challenge clearance situation should not be allowed (1) to devolve into an argument on the merits, or (2) to delay the count unduly.
The most common example of a possible clearance situation
is the challenge of the voter whose name was not on the eligibility list. The Commission agent should call the attention of the parties to the supplemental list of those who were thus challenged. If it turns out, and all parties agree, that the omission of a name was inadvertent and that the voter in question is eligible in all respects, the challenge may be disposed of.
Ballots challenged on the basis of possible double voting should be cross-checked at this time and resolved.
Another example is the challenge which was made by an observer by mistake, or without full knowledge but “to be on the safe side”. If facts can be quickly adduced which convince all parties that the person is eligible, the challenge may be wiped out.
b. Procedure on “cleared” challenges:
“Cleared” challenges should be given the following treatment: The details of the disposition should be noted on the reverse side of the challenged ballot envelope; parties should signify their agreement by signing or initialing thereon; the challenged ballot envelope should be opened (and preserved in the file) and the blank envelope should be opened placed in the ballot box with the other ballots.
4. Interpretation of ballots: The Commission agent should rule on and count each ballot-as it comes up; interpretation of other-than-normal ballots should not be postponed. If the agent’s interpretation is seriously questioned, he should segregate the ballot in a challenge envelope on which the circumstances should be detailed, and the ballot should be counted as a challenged ballot.
5. Preparation of the tally of ballots: Each copy of the Tally Sheet should be completed in ink where possible in the presence of the tallying observers. The Tally Sheet previously prepared by the Commission’s Elections Supervisor will have been tailored to meet the type of balloting conducted.
In executing the tally sheet, the Commission agent should fill in all the items noted thereon.
6. Execution of tally of ballots: The Commission should sign his name at the place indicated on each copy. Also, at the appropriate place on each copy, one of the participating observers or any witness authorized so to act, should sign in ink on behalf of each party.
Should the certification of a party be withheld, the Commission agent should ascertain the reasons and reduce them to a signed writing.
7. Service of tally of ballots: As soon as the tally of ballots has been prepared a copy should be handed to a responsible official or other representative (including an observer) of each party, with the statement (in substance), “This is the Employer’s/ Labor Organization’s copy.
Such “service” should be made whether or not the party, through a representative, had signed the tally, except that, where there has been no signature, an attempt should be made to secure a signature (on the reverse side of the original) for the receipt of the tally. Should representatives of the party refuse to sign the receipt, the Commission agent should execute an affidavit of service. Should they refuse to accept service, a copy of the tally should be mailed to the party by certified mail.
If, at the time of service of the tally, one of the parties had no observers or agents present, a copy of the tally should be served by certified mail.
Combined unit determination and representation election: When an election is held to determine if separate employe classes will be included in the same bargaining unit in addition to deciding the question concerning union representation, then these combined-election procedures should be followed.
1. There will be two voting eligibility lists (one for each voting group).
2. The regular election procedures are followed up until the point of distributing the ballots.
3. When distributing the ballots, those employes in the group that will be voting on unit inclusion as well as union representation, will receive two color-coded ballots (one for each question). The Commission agent will give the following instruction:
—–a. The ballot concerning unit inclusion should be marked, folded once, and kept separate from the other ballot.
—–b. The ballot concerning union representation should be marked, folded, and sealed in a plain white envelope.
—–c. The unit inclusion ballot and the sealed envelope (containing the representation ballot) should both be dropped into the ballot box.
4. Those employes in the group that determines only the question concerning representation will be given one representation ballot (as usual).
5. Counting the ballots:
a. Upon opening the ballot box, the Commission agent shall remove all unit inclusion ballots recognized by their distinguishing color). These should be counted first, and the results entered onto the separate tally sheet marked for the bargaining unit inclusion question.
b. Unless a majority of the eligible professional or craft voters vote to be included in the non-professional or non-craft bargaining unit, the sealed envelopes should be counted separately, and the results entered onto that group’s representation vote tally sheet. (Note: if an employe does not vote it is the equivalent to a “no” vote.) Then the remaining representation ballots should be counted and tallied separately.
c. If a majority of the eligible voters vote to be included in one bargaining unit, then the sealed envelopes should be opened and mixed with the remaining ballots. After which, all the ballots should be counted and tallied on a single tally sheet. Care must be taken to insure that the required number have voted for inclusion or the results of the election will be thrown in doubt. If the Commission’s agent is uncertain as to whether the required number of employes have voted in favor of inclusion in a non-professional or non-craft bargaining unit the representation ballots should not be co-mingled or counted until the Commission has determined the question.
STATE OF WISCONSIN
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
INSTRUCTIONS TO ELECTION OBSERVERS
1. Act as checkers and watchers.
2. Assist in identification of voters.
3. Challenge voters and ballots.
4. Otherwise assist agents of the Commission.
THINGS TO DO (SPECIFIC):
1. Identify voter.
2. Check off the name of the person applying to vote. One check before the name by one organization. One check after the organization or the Employer.
3. See that only one voter occupies a booth at any one time.
4. See that each voter deposits a ballot in the ballot box.
5. See that each voter leaves the polling area immediately after depositing ballot.
6. Report any conflict as to the right to vote to the agent of the Commission at your table.
7. Remain in the polling area until all ballots are counted in order to check on the fairness of the count, if ballots are counted at that time. If they are not counted immediately you will be informed as to when and where ballots will be counted.
8. Report any irregularities to the Commission agent as soon as noticed.
9. Challenge voters only for good cause.
10. BE ON TIME. (15 to 20 minutes before the time for the opening of the polls unless otherwise instructed.)
THINGS NOT TO DO (SPECIFIC):
1. Give any help to any voter. Only an agent of the Commission can assist the voter.
2. Electioneer any place during the hours of the election.
3. Argue regarding the election.
4. Leave the polling place without the agent’s consent.
5. Use intoxicating liquors.
As an official representative of your organization, you should enter upon this task with a fair and open mind. Conduct yourself so that no one can find fault with your actions during the election. You are here to see that the election is conducted in a fair and impartial manner, so that each eligible voter has a fair and equal chance to express themselves freely and in secret.
Procedure for mail distribution of notice and ballots:
Basically, the mail ballot process involves:
a. Written notice to the parties forth the time and date on which “mail in” ballots will be dispatched to the voters, and also setting forth a terminal time and date by which the ballots must be returned to the Commission. Such notice will be given the parties at least 24 hours before the time and date on which the ballots will be dispatched by the Commission.
b. Mailing a “kit” to the voter containing a notice of election, a ballot, a blank envelope, and a :self-addressed franked “mail ballot” envelope. The returned envelopes are then treated as prospective “voters” for purposes of identification, challenges, etc.