263

23. VOTING ELIGIBILITY 

Questions affecting the eligibility of employees to vote in a Board election arise either at the 

initial hearing, if one is held, or in the context of an election agreement, or, in any event, by way 

of challenges at the polling place at the time of the election. 

We shall treat here voting eligibility in general. The rules governing eligibility are spelled out 

and illustrations are given of special formulas used in industries and situations that are not 

susceptible to the application of these rules. The subject of eligibility lists, including the NorrisThermador rule (Norris-Thermador Corp., 119 NLRB 1301 (1958)), is also discussed. Other 

eligibility questions are treated in the chapter on Categories Governed by Board Policy, because 

these pertain basically to unit inclusion or exclusion issues, and there is therefore no reason for 

repeating this subject matter here. 

23-100 Eligibility in General 

23-110 The General Rule 

362-3312 

362-6706 

362-6772-6700 

362-6766 

Voters must be employees within the meaning of the Act. Applicants are considered 

employees (Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941)), but unpaid volunteers are not. 

Seattle Opera Assn., 331 NLRB1072 (2000); and WBAI Pacifica Foundation, 328 NLRB 1273 

(1999). Aliens, whether legally or legally in the United States are eligible to vote. Sure Tan v. 

NLRB, 467 U.S. 883 (1984). 

To be eligible to vote in a Board election, the employee must be in the appropriate unit (1) on 

the established eligibility date, which is normally during the the payroll period immediately 

preceding the date of the direction of election, or election agreement, and (2) in employee status 

on the date of the election. See, for example, Plymouth Towing Co., 178 NLRB 651 (1969); 

Greenspan Engraving Corp., 137 NLRB 1308 (1962); Gulf States Asphalt Co., 106 NLRB 1212 

(1953); Reade Mfg. Co., 100 NLRB 87 (1951); Bill Heath, Inc., 89 NLRB 1555 (1949); Macy’s 

Missouri-Kansas Division v. NLRB, 389 F.2d 835 (8th Cir. 1968); and Beverly Manor Nursing 

Home, 310 NLRB 538 fn. 3 (1993). Individudals who were scheduled to become supervisors after 

the date of the election were eligible to vote because they were employees during the eligibility 

period. Nichols House Nursing Home, 332 NLRB 1428 (2000). 

As a general rule, the Board does not determine eligibility based on events occurring after an 

election. Dean & Deluca New York, Inc., 338 NLRB 1046 (2003); Arlington Masonry Supply, 

Inc., 339 NLRB 817, 820 fn. 15 (2003). 

The employee must be employed and working on the established eligibility date, unless 

absent for reasons specified in the direction of election. See, for example, Roy N. Lotspeich 

Publishing Co., 204 NLRB 517 (1973). Those reasons are illness, vacation, temporary layoff 

status, and military service. See also NLRB v. Dalton Sheet Metal Co., 472 F.2d 257 (5th Cir. 

1973); Agar Supply Co., 337 NLRB 1267 (2002) (transfer to light duty work did not remove 

eligibility); Amoco Oil Corp., 289 NLRB 280 (1988); Schick, Inc., 114 NLRB 931 (1956); Barry 

Controls, 113 NLRB 26 (1955). In Jam Productions, 338 NLRB 1117 (2003), the Board 

overruled challenges to voters based on loss of business after the elibility date. The Board 

rejected the employers’ contention that the employees become casual and thus ineligible. 

The general rule is qualified by exceptions applicable to certain classes or groups of 

employees and to special circumstances. These are treated under separate headings. 
264 VOTING ELIGIBILITY

23-111 Newly Hired or Transferred Employees 

362-6766-6000 

In order to be eligible to vote, an employee must be “hired and working.” Thus, employees 

who are hired on the eligibility date but do not report for work until a later date are ineligible to

vote. Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973); Greenspan Engraving Corp., 137

NLRB 1308, 1311 (1962). Similarly, employees who have been hired and are participating in

“training, orientation, and other preliminaries” are not considered to be working and are

ineligible. NLRB v. Tom Wood Datsun, 767 F.2d 350 (7th Cir. 1985); Speedway Petroleum, 269 

NLRB 926 fn. 1 (1984); F & M Importing Co., 237 NLRB 628 (1978). But see CWM, Inc., 306

NLRB 495 (1992). An employer who is transferred from nonunit work to unit work prior to the 

eligibility date is eligible to vote. Meadow Valley Contractors, 314 NLRB 217 (1994). But an

employee transferred out of the unit before the election and who has no reasonable expectancy of

returning to the unit is not eligible. Mrs. Baird’s Bakeries, 323 NLRB 607 (1997). 

See Dynacorp/Dynair Services, 320 NLRB 120 (1995), for a recent summary of the cases on

the eligibility of recently hired employees. See also Pep Boys–Manny, Moe & Jack, 339 NLRB 

421 (2003).

An employee employed on the date of the election and otherwise meeting this test is eligible

to vote despite an intention to quit after the election. St. Elizabeth Hospital v. NLRB, 708 F.2d

1436 (9th Cir. 1983); NLRB v. Hillview Health Care Center, 705 F.2d 1461, 1471 (7th Cir.

1983); Harold M. Pitman Co., 303 NLRB 655 (1991); Personal Products Corp., 114 NLRB 959 

(1955); Whiting Corp., 99 NLRB 117 (1951), revd. on other grounds 200 F.2d 43 (7th Cir. 1952). 

Compare Fairview Hospital, 174 NLRB 924 (1969), enfd. 75 LRRM 2839 (7th Cir. 1970), in

which the Board ruled ineligible an employee whose discharge was effected on the day of the 

election. See also Nichols House Nursing Home, supra at 23 (individual scheduled to be 

supervisor found eligible). 

23-112 Voluntary Quits 

362-6706 

362-6772 

Employees who quit their employment, and stop working on a date prior to the date of the

election, are not eligible to vote. Dakota Fire Protection Inc., 337 NLRB 92 (2001); Orange 

Blossom Manor, 324 NLRB 846 (1997), and Birmingham Cartage Co., 193 NLRB 1057 (1971). 

Compare NLRB v. General Tube Co., 331 F.2d 751 (6th Cir. 1964), in which employee eligibility

was grounded on the employees actually having performed work on the day of the election. In 

Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973), an employee who did not work on 

election day was held ineligible to vote, even though he was paid for the day and was considered

to be on the payroll and to be employed on election day. Where an employee terminated his 

employment in the middle of the payroll period of eligibility, but was rehired and working before 

the election date, the Board found him to be an eligible voter. But see Apex Paper Box, 302 

NLRB 67 (1991). Payroll eligibility is conferred by some work during the payroll eligibility 

period. Leather by Grant, 206 NLRB 961 (1973). 

23-113 Discharged Employees 

362-6766-7000 

362-6766-8000 

In Choc-Ola Bottlers, 192 NLRB 1247 (1971), an employee had been discharged for cause

on the day of the election. The Board, applying the general rule described at the beginning of this

chapter, found the requirements of the rule satisfied and ruled that he was eligible to vote. The 

Seventh Circuit disagreed, holding that on the employee’s removal for cause “he was no longer
VOTING ELIGIBILITY 265

sufficiently concerned with the terms and conditions of employment in the unit to warrant his 

participation in the representation election.” Choc-Ola Bottlers v. NLRB, 478 F.2d 461 (7th Cir. 

1973). See also Plymouth Towing Co., 178 NLRB 651 (1969); compare Ely & Walker, 151

NLRB 636 (1965). See also Walter Packing, 241 NLRB 131 (1979), in which the Board applied 

the Lotspeich and Choc-Ola rules in a discharge case. 

In Community Action Commission, 338 NLRB 664 (2003), the Board sustained the challenge 

to a ballot of an employee who was discharged after the eligibility date but before the election 

even though there was a “theoretical possibility” that the discharge might be reversed. 

Employees allegedly discharged for discriminatory reasons in violation of Section 8(a)(3) 

who, pursuant to an informal settlement agreement, are placed on a preferential hiring list and can

be said to have a reasonable prospect of recall during the next season are eligible to vote. 

Koehring Co., 193 NLRB 513 (1971). As a general rule, a discharge is presumed to be for cause 

unless a charge has been filed and is pending concerning the discharge. In such a case, the 

employee votes under challenge. Dura Steel Co., 111 NLRB 590 (1955). This same policy 

applies with respect to pending grievances, Pacific Tile & Porcelain Co., 137 NLRB 1358 

(1962), and other litigation where reinstatement is possible. Machinists, 159 NLRB 137 (1966). 

See also Curtis Industries, 310 NLRB 1212 (1993), applying this same principle in the case of 

strikers who the employer contends are permanently replaced but who are the subject of 

litigation. The Board noted in Curtis and reaffirmed in Morgan Services, Inc., 339 NLRB 463 

(2003); and Mono-Trade Co., 323 NLRB 298 (1997), that it would wait a reasonable period of 

time for completion of the litigation or arbitration. 

See also section 23-300. 

23-114 Employees on Sick Leave 

362-6766-2000 et seq. 

An employee who at the time of the election had the status of an employee on sick leave was

regarded as sharing and retaining a substantial interest in the terms and conditions of 

employment, particularly since the employer considered him an employee by accepting his health 

insurance premiums and by not removing his name from the payroll records and seniority list. 

Delta Pine Plywood Co., 192 NLRB 1272 fn. 1 (1971). The general rule regarding employees on 

sick leave is that they are presumed to remain in that status until recovery, and a party seeking to 

overcome that presumption must make an affirmative showing that the employee has resigned or 

been discharged. Edward Waters College, 307 NLRB 1321 (1992); Atlantic Dairies Cooperative, 

283 NLRB 327 (1987); Red Arrow Freight Lines, 278 NLRB 965 (1986); Sylvania Electric 

Products, 119 NLRB 824 (1958); Wright Mfg. Co., 106 NLRB 1234 (1953). Recently in a series 

of cases, a divided Board reaffirmed the general rule. Agar Supply Co., 337 NLRB 1267 (2002);

Super Valu, Inc., 328 NLRB 52 (1999); Pepsi-Cola Co., 315 NLRB 1322 (1995); Associated 

Constructors, 315 NLRB 1255 (1995); Vanalco, Inc., 315 NLRB 618 (1994); and Thorn 

Americas, Inc., 314 NLRB 943 (1994). See also A & J Cartage, 309 NLRB 263 (1992), which 

requires that the employee have done unit work before going on sick leave. 

23-115 Laid-Off Employees 

The test applicable to the eligibility of laid-off employees is “whether there exists a 

reasonable expectancy of employment in the near future.” Higgins, Inc., 111 NLRB 797 (1955); 

and Madison Industries, 311 NLRB 865 (1993). Thus, although an employee’s termination notice 

stated that the layoff was temporary and the employee considered herself subject to recall, an 

absence of objective evidence in support of a finding of temporary layoff and the presence of 

countervailing evidence resulted in a finding that the employee had no reasonable expectancy of

returning to work and was therefore ineligible to vote in the election. Sierra Lingerie Co., 191

NLRB 844 (1971). In Apex Paper Box, 302 NLRB 67 (1991), supra, the Board sustained the

challenges to ballots of three employees who were laid off prior to the payroll eligibility date and 
266 VOTING ELIGIBILITY

were recalled after that date but prior to the election. Note that this case summarizes the case law 

on the laid-off issue. See also MJM Studios of New York, 338 NLRB 980 (2003); and Dredge 

Operators, 306 NLRB 924 (1992), where the temporary layoff rule was applied in the context of 

a mail ballot election. 

Eligibility is assessed based on the facts existing on or before the eligibility date, not on the

date of the election. Thus, employees who had been recalled before the election were considered

ineligible because as of the eligibility date, the Board found that they did not have a reasonable 

expectancy of recall. Osram Sylvania, Inc., 325 NLRB 758 (1998). 

A mere assertion of permanent layoff, in the absence of any supporting evidence or a specific

offer of proof, and especially in the face of subsequent recall, may be insufficient to rebut the 

presumption that layoffs are temporary. Intercontinental Mfg. Co., 192 NLRB 590 (1971). 

See Nordam, Inc., 173 NLRB 1153 (1969), for a factual analysis of evidence in determining

whether at the time of layoff the employees in question “had a reasonable expectancy of 

reemployment in the near future.” See also D. H. Farms Co., 206 NLRB 111 (1973); and

Tomadur, Inc., 196 NLRB 706 (1972). 

23-116 Retirees/Social Security Annuitants 

Retired employees are not employees within the meaning of the Act. See Allied Chemical

Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971), and Mississippi Power Co., 332 NLRB 

530 (2000). However employees who are collecting a Social Security annuity and limit their

working term so as not to decrease that annuity are not, solely for that reason, ineligible to vote in

an election. Holiday Inns of America, 176 NLRB 939 (1969). 

23-120 Economic Strikers, Locked Out Employees, and Replacements 

362-6766-4500 

362-6778-6700 

362-6780 

362-6784-6700 

Section 2(3) of the Act provides that an individual whose work has ceased as a consequence

of a labor dispute continues to be an employee if he or she has not obtained regular and 

substantially equivalent employment. That cessation must be in concert with other employees. Lin

Rogers Electrical Contractors, 323 NLRB 988 (1997). The status of economic strikers as eligible

voters was dealt with in the 1959 amendments to the Act by adding the following provision to

Section 9(c)(3): 

Employees engaged in an economic strike who are not entitled to reinstatement shall be

eligible to vote under such regulations as the Board shall find are consistent with the 

purposes and provisions of this Act in any election conducted within twelve months after the 

commencement of the strike. 

The effect of this amendment was to eliminate the former voting disability of economic 

strikers and, at the same time, to preserve the concurrent eligibility of permanent replacements for 

such strikers. W. W. Wilton Wood, Inc., 127 NLRB 1675 (1960); Kingsport Press, 146 NLRB 

1111 (1964); see also 105 Cong. Rec. 6396 (1959). The Board may expedite the processing of the 

petition in order to conduct the election within the 12 months. Kingsport Press, supra; Northshore

Fabricators & Erectors, 230 NLRB 346 (1977. 

The rules with respect to the voting rights of economic strikers may be summarized as 

follows: 

a. Strikers are presumed to be “economic strikers” unless they are found by the Board to be 

on strike because of unfair labor practices on the part of the employer. Bright Foods, 126 NLRB 

553 (1960); see also Times Square Stores Corp., 79 NLRB 361 (1948). 
VOTING ELIGIBILITY 267

b. Economic strikers are presumed to continue in that status and thus are eligible to vote 

under Section 9(c)(3). To rebut the presumption of eligibility, the party challenging must 

affirmatively show by objective evidence that the economic strikers have abandoned their interest 

in their struck jobs. Pacific Tile & Porcelain Co., 137 NLRB 1358 (1962). The nature of the 

evidence which might rebut the presumption, said the Board in that case, would he determined on 

a case-by-case basis, but it cautioned that “acceptance of other employment, even without 

informing the new employer that only temporary employment is sought, would not of itself be 

evidence of abandonment of the struck job so as to render the economic striker ineligible to vote.” 

See also National Gypsum Co., 133 NLRB 1492 (1961). See also Omahaline Hydraulics Co., 

340 NLRB No. 104 (2003) (employer bears burden of establishing that jobs have been eliminated

and did not do so here). 

In Globe Molded Plastics Co., 200 NLRB 377 (1972), economic strikers had been engaged in

their strike for 3 months before the election. Notwithstanding an alleged depressed condition in

the plastics industry, there was no contention or evidence that their work had been permanently

abolished or that they had abandoned interest in their jobs. The fact that the employer had lost 

certain work or that obtaining new customers was difficult, possibly because of the effectiveness 

of the strike, was not the type of permanent abolition or elimination of jobs for economic reasons 

which warranted disenfranchising strikers otherwise eligible to vote. Compare Lamb-Grays 

Harbor Co., 295 NLRB 355 (1989), in which the elimination of jobs was predicated on valid

substantial nonstrike-related economic reasons. In these circumstances the affected strikers were 

found ineligible. See also St. Joe Minerals Corp., 295 NLRB 517 (1989). 

In Roylyn, Inc., 178 NLRB 197 (1969), the issue was whether the action of certain employees 

in signing a quit slip in order to obtain vacation pay was sufficient to show that economic strikers 

abandoned their interest in their struck jobs and thus lost their status of economic strikers for 

purposes of eligibility. The Board found on the facts in the case that the strikers did not abandon 

their employee status and did not sign the quit slips with that intent, and the presumption that an

economic striker remains in that status had therefore not been rebutted. See also P.B.R. Co., 216 

NLRB 602 (1975); and Virginia Concrete Co., 316 NLRB 261 (1995). 

Mere acceptance of a job with better benefits does not establish that a striker has forfeited his 

eligibility. Akron Engraving Co., 170 NLRB 232 (1968); Pacific Tile & Porcelain Co., 137 

NLRB 1358 (1962), supra at 1362–1363. 

For thorough treatment of individual issues revolving around the question whether the 

presumption of eligibility has or has not been rebutted in the light of the principles here under 

discussion, see Q-T Tool Co., 199 NLRB 500 (1972). See also NLRB v. Woodview Calabasa 

Hospital, 702 F.2d 184 (9th Cir. 1983). 

c. Replaced strikers are not eligible to vote in an election held more than 12 months after the

commencement of an economic strike. Conversely, if they have not been replaced they are 

eligible to vote. Erman Corp., 330 NLRB 95 (1999). Similarly, where the election directed will 

be conducted more than a year from the commencement of the economic strike, only those 

replaced former economic strikers who are actually reinstated by the eligibility date of the 

election are entitled to vote. Wahl Clipper Corp., 195 NLRB 634 (1972); Gulf States Paper 

Corp., 219 NLRB 634 (1975). Wahl Clipper was reaffirmed by a divided Board in ThoresonMcCosh, Inc., 329 NLRB 630 (1999). But, if the election is a rerun, the replaced strikers may

vote even if it is being conducted more than 12 months after the strike began. Jeld-Wen of

Everett, Inc., 285 NLRB 118 (1987). 

In Brooks Research & Mfg., 202 NLRB 634 (1973), the Board rejected a contention that 

economic strikers should be equated with laid-off employees. “The reinstatement rights of 

economic strikers under [NLRB v.] Fleetwood Trailer [Co., 389 U.S. 375 (1967)] and Laidlaw

[Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969)], are statutory as distinguished 

from the rights of laid-off employees. A layoff constitutes a discontinuance of work for an

employer which does not rise to the level of a lawful economic strike, participation in which is 
268 VOTING ELIGIBILITY

protected under Sections 7 and 13 of the Act.” Distinguishing Wahl Clipper, supra, the Board

pointed out that there it held only that economic strikers were not eligible to vote in a Board 

election after 1 year from the commencement of an economic strike and its decision was 

grounded on a “construction of specific language in Section 9(c)(3) concerning the voting

eligibility of economic strikers.” Making this distinction, the Board declined to place a time limit 

on the reinstatement rights of economic strikers. 

In Curtis Industries, 310 NLRB 1212 (1993), the Board held that strikers who are 

permanently replaced but who are contesting that action in litigation, shall vote by challenge 

ballot. For a related discussion see section 23-113, supra. 

d. The Board frequently does not resolve eligibility questions of this type unless the ballots 

are determinative. Universal Mfg. Co., 197 NLRB 618 (1972). 

e. Replaced former economic strikers are eligible to vote in an election conducted within 12 

months of the commencement of the strike whether or not the strike has terminated. Tractor 

Supply Co., 235 NLRB 269 (1978). 

f. The Board presumes that replacements hired for strikers are temporary employees in all 

Board cases—representation and unfair labor practice. O. E. Butterfield, Inc., 319 NLRB 1004

(1995). Employees hired subsequent to a strike and who are told by the employer when hired that 

his job is “permanent” are permanent replacements unless the presumption of permanence is 

rebutted. Akron Engraving Co., 170 NLRB 232 (1968), supra; Pacific Tile & Porcelain Co., 137 

NLRB 1358 (1962), supra. 

g. Permanent replacements are eligible to vote where a strike is called after the eligibility date 

and they are employed on the date of the election. Macy’s Missouri-Kansas Division, 173 NLRB 

1500 (1969). 

In St. Joe Minerals Corp., 295 NLRB 517 (1989), the Board found that “cross overs” (former 

strikers who return to work) are considered permanent replacements if they are returned to 

positions other than those they held prior to the strike. 

Note—Temporary replacements are not eligible to vote. See Harter Equipment, 293 NLRB 

647 (1989), involving replacements for locked out employees. 

Permanent replacements hired subsequent to the eligibility period to replace economic 

strikers who have gone on strike after the direction of the election are eligible to vote. Tampa

Sand & Material Co., 129 NLRB 1273 (1961). However, permanent replacements who are hired 

subsequent to the eligibility period to replace economic strikers who have gone on strike prior to 

the direction of election are not eligible to vote. Greenspan Engraving Corp., 137 NLRB 1308

(1962). In both cases, the Board emphasized that the “timing of the strike” was the controlling 

factor in determining whether permanent replacements for economic strikers were entitled to vote 

in an election. See also Famous Industries, 220 NLRB 484 (1975). 

h. Issues as to voting eligibility of strikers and replacements are normally deferred until the 

election for disposition by way of challenges. Bright Foods, 126 NLRB 553 (1960); Pipe

Machinery Co., 76 NLRB 247 (1948). 

i. In the unique situation where economic strikers and seasonal employees are involved the 

Board approved bifurcated election which assured that the strikers could vote before the 12-

month period expired and the seasonal employees could vote later. Diamond Walnut Growers, 

308 NLRB 933 (1992). Note also that the Board will bypass the blocking charge rule in order to 

hold an election within 12 months of the onset of an economic strike so as not to exclude strikers. 

American Metal Products, 139 NLRB 601 (1962). 

j. The 12-month restriction also applies in union deauthorization (UD) elections. Carol Cable

Co. West, 309 NLRB 326 (1992). 

23-125 Prisoners and Work Release Inmates 

Jailed prisoners on work release programs have been found to share a sufficient community 

of interest with employees in the bargaining unit to vote. Winsett-Simmonds Engineers, Inc., 164 
VOTING ELIGIBILITY 269

NLRB 611 (1967). See also Speedrack Products Group Limited, 325 NLRB 609 (1998). See also 

section 12-210. 

23-200 Eligibility Dates 

23-200 

362-3312 

As noted above, the general rule is that an employee must be employed both on the eligibility 

date and the date of the election. The eligibility date is usually described in terms of an 

employer’s payroll period which ends on a date sometime prior to the election. In at least one

case the Board has directed a second election where the eligibility date used was not the date 

previously established. The Board noted that the error resulted in an ineligible ballot being cast 

that could have affected the results. Active Sportswear Co., 104 NLRB 1057 (1953). In Jam

Productions, Ltd., 338 NLRB 1117 (2003), the Board indicated that the hearing officer in a 

postelection hearing on challenged ballots could consider a loss of business arising after the

eligibility date in determining whether the challenged employees status had changed from part

time to casual. The Board however overruled the challenge. 

23-210 Initial Elections 

362-3312 

The eligibility period for an election being conducted pursuant to an election agreement

should be for the payroll period ending before the date of approval of the election agreement or 

the Decision and Direction of Election. CHM sections 11086.3 and 11312.1 

23-220 Runoff Elections 

355-1167-2500 

In a runoff election, eligibility is based on the same eligibility date as that used in the original 

election, but employee status is required on the date of the runoff. See Rules 102.70 and Lane 

Aviation Corp., 221 NLRB 898 (1975). Where, however, there has been a substantial increase in 

the employee complement since the original election was conducted, the current payroll is used 

for eligibility purposes. Interlake Steamship Co., 178 NLRB 128 (1969). Moreover, where there 

is a long passage of time after the payroll eligibility date used in a prior runoff election, the 

eligibility payroll period is the one immediately preceding the date of issuance of the latest notice 

of election. Caribe General Electric, 175 NLRB 773 (1969); Interlake Steamship Co., 174 NLRB 

308 (1969). 

The Board holds that it is an unfair labor practice for an incumbent union to continue to 

accept recognition between the initial election and a runoff election where it, the incumbent, did 

not garner enough votes to be on the runoff ballot. Wayne County Legal Services, 333 NLRB 146

(2001). 

See also section 22-114, supra. 

23-230 Rerun Elections 

362-3362-5000 

Where the Board sets aside a prior election and directs a repeat election, the eligibility period, 

in the absence of unusual circumstances, is the one immediately preceding the date of the repeat 

election and not the one established for the first election. Wagner Electric Corp., 127 NLRB 1082 

(1960); Great Atlantic & Pacific Tea Co., 121 NLRB 38 (1958). 

See also section 22-120, supra. 
270 VOTING ELIGIBILITY

23-240 Seasonal Operations 

362-3350-2000 

370-0750-4900 

Where the employer’s operations are seasonal, the voting franchise is made available to the

largest number of eligible voters by holding the election at or near the seasonal peak among the 

employees who are employed during the payroll period immediately preceding the issuance of the

notice of election. Kelly Bros. Nurseries, 140 NLRB 82 (1962); Toledo Marine Terminals, 123 

NLRB 583 (1959). See also Dick Kelchner Excavating Co., 236 NLRB 1414, 1416 (1978); and 

Bogus Basin Recreation Assn., 212 NLRB 833 (1974). Where, however, an employer operates on

a year-round basis, is not in a seasonal industry, and its business has several employment peaks, 

the Board weighs the advantage of an early election, the possibility that more employees may 

vote at a higher peak of employment, and the relative interest of those employed during the

various peaks as determined by their rate of return. Accordingly, the election in such 

circumstances is held during “the next representative period.” Elsa Canning Co., 154 NLRB 

1810, 1812–1813 (1965); cf. Baugh Chemical Co., 150 NLRB 1034 (1965). Seasonal employees 

must share a community of interest in order to be included in a unit of permanent employees and

the mere happenstance of employment on the eligibility date is not sufficient to permit them to

vote. Seneca Foods Corp., 248 NLRB 1119 (1980). 

The Board has also deferred elections in cases involving universities and colleges until the 

commencement of fall classes where many unit employees would not be present on campus

during the summer months. See, e.g., Tusculum College, 199 NLRB 28 (1972). 

23-300 Alleged Discriminatees 

362-6766-7000 

Employees who are the subject of pending unfair labor practice proceedings alleging their

unlawful discharge are permitted to vote subject to challenge. Machinists, 159 NLRB 137 (1966); 

Tetrad Co., 122 NLRB 203 (1959). See also Curtis Industries, 310 NLRB 1212 (1993), involving

permanently replaced strikers who are litigating that action under another statute and sections 23-

110 and 23-120, supra. 

23-400 Special Formulas for Specific Industries 

Some industries do not have the kind of steady employment that is characteristic of the 

mainstream of industrial enterprise. It is therefore necessary to devise an eligibility formula in

those industries which will best be tailored to their special needs. Examples, by industry, of 

special formulas follow. 

23-410 Longshore 

362-3350-4000 

A formula geared to the specific circumstances was evolved based not on the usual payroll 

period but rather on the basis of employees who worked a specific number of hours during a

given year. The formula was predicated on eligibility requirements in connection with fringe 

benefits; i.e., entitlement to vacation pay and welfare benefits. New York Shipping Assn., 107 

NLRB 364, 374 (1954); E. W. Coslett & Sons, 122 NLRB 961 (1959). 

23-420 Construction 

362-3350-6000 

Eligibility to vote in the construction industry elections is determined by the use of the Daniel

formula. This formula was announced in two Daniel Construction Co. cases, Daniel Construction

Co., 133 NLRB 264 (1961), as modified at 167 NLRB 1078 (1967). In 1991 the Board made 

additional changes in the construction industry formula. 
VOTING ELIGIBILITY 271

In 1992, the Board reconsidered its Whitty decision (S. K. Whitty & Co., 304 NLRB 776

(1991)) and, with slight modification, returned to its Daniel policy. See Steiny & Co., 308 NLRB 

1323 (1992). See also Atlantic Industrial Constructors, 324 NLRB 355 (1997); Brown & Root,

Inc., 314 NLRB 19 (1994); Delta Diversified Enterprises, 314 NLRB 946 (1994); and Johnson 

Controls, Inc., 322 NLRB 669 (1996). 

As the Board noted in Steiny, the Daniel formula does not affect core employees who would 

be eligible to vote under traditional standards nor does it preclude the parties from a stipulation 

not to use the Daniel formula (fn. 16). Ellis Electric, 315 NLRB 1187 (1994). Nor is the formula 

used for showing-of-interest purposes. Pike Co., 314 NLRB 691 (1994). See also section 5-210, 

supra. But the formula is used in all construction industry elections unless the parties stipulate not 

to use it. Signet Testing Laboratories, 330 NLRB 1 (1999). 

In Wilson & Dean Construction Co., 295 NLRB 484 (1989), the Board applied the Daniel 

Construction formula in the face of a contention that former employees would not be given 

preference for jobs under the employer’s decision to no longer use the union hiring hall. 

Although the Board has utilized special eligibility formulas in the construction industry, the

usual requirements are used where the parties do not raise any eligibility issues and the record is

insufficient concerning the work history of the employees. However, in this type of situation, 

former employees who do not qualify under these eligibility requirements may be permitted to

vote by challenged ballots. Queen City Railroad Construction, 150 NLRB 1679 fn. 3 (1965). 

In one unusual case the Board set aside the election because the Region had set out an 

incomplete Steiny formula prompting the employer to provide an erroneous Excelsior list and 

resulting in two eligible employees, not voting. Atlantic Industrial Constructors, 324 NLRB 355

(1997). 

23-430 Oil Drilling 

362-3350-8000 

In the oil drilling industry, a voting eligibility formula of 10 days or more work a year had

formerly been used. See Sprecher Drilling Corp., 139 NLRB 1009 (1962); Trade Winds Drilling 

Co., 139 NLRB 1012 (1962); Fitzpatrick Drilling Co., 139 NLRB 1013 (1962). But in Hondo

Drilling Co., 164 NLRB 416, 418 (1967), eligibility was limited to all “roughnecks” who had 

been employed by the employer for a minimum of 10 working days during the 90-calendar-day 

period preceding the issuance of the direction of election. See also Loffland Bros. Co., 235 NLRB 

154 (1978); and Carl B. King Drilling Co., 164 NLRB 419, 421 (1967); NLRB v. Rod-Ric Corp.,

428 F.2d 948 (5th Cir. 1970). 

23-440 Taxicabs 

Part-time taxicab drivers who worked at least 2 or more days a week were deemed to have 

sufficiently substantial interests in the general working conditions of all drivers to justify their 

eligibility to vote in an election, but part-time drivers who worked 1 day a week or less were held 

essentially casual and therefore ineligible to vote. Cab Operating Corp., 153 NLRB 878, 883–

884 (1965). Compare Jat Transportation Corp., 128 NLRB 780 (1960). 

23-450 On-Call Employees 

362-6734 

On-call employees—those with no regular schedule of work—are generally considered

eligible to vote if they regularly average 4 or more hours of work per week for the last quarter 

prior to the eligibility date. See Davison-Paxon Co., 185 NLRB 21 (1970); and Saratoga County

Chapter NYSARC, 314 NLRB 609 (1994). See also Trump Taj Mahal Casino, 306 NLRB 86

(1992), which summarizes the case law as to on-call employees. 

For a discussion of appropriate formulae for on-call nurses, see Sisters of Mercy Health

Corp., 298 NLRB 483 (1990); and S. S. Joachim & Anne Residence, 314 NLRB 1191 (1994).
272 VOTING ELIGIBILITY

For a related discussion of on-call employees, see section 20-120. 

23-460 Entertainment Industry 

362-6734 

Stagehands are on-call employees and the irregular pattern of their employment in the 

entertainment industry prompted the Board to fashion a specific formula for those who have a 

reasonable expectancy of further employment with the employer. Thus, in Medion, Inc., 200 

NLRB 1013 (1972), employees who were employed on at least two productions for a minimum 

of 5 working days in the year preceding the decision were deemed eligible to vote. See also

Julliard School, 208 NLRB 153 (1974). In American Zoetrope Productions, 207 NLRB 621

(1973), the Board eliminated the 5-day requirement on a showing that at that employer most unit 

jobs lasted only 1 or 2 days. Compare the differing approach to on-call formula to two employers 

in the entertainment industry─Julliard School, supra, an educational institution that conducts 

performances and Steppenwolf Theatre Co, 342 NLRB No. 7 (2004), a professional theater 

company.The Board has a flexible approach to developing formulas suited to the conditions in

different areas of the entertainment industry. See DIC Entertainment, L.P., 328 NLRB 660

(1999) (storyboard supervisors in television animation industry). 

23-470 On-Call Teachers 

362-3350-7000 

362-6734 

In Berlitz School of Languages, 231 NLRB 766 (1977), the Board devised a formula for 

eligibility of teachers who are called occasionally to teach foreign languages. Drawing on its 

experience with stagehands, the Board set the standard as being at least 2 days’ work during the

preceding year. 

The above examples are, of course, illustrative only, and by no means exhaustive. They are

given to indicate how eligibility formulas are tailored. Different enterprises, even in the same 

general industry, may be the subject of different formulas. Moreover, there are special formulas 

for industries not mentioned here which are adapted to the special needs of those operations. 

23-500 Eligibility Lists and Stipulations 

23-510 Voting List (Excelsior) 

362-6708 

393-6081-6075-5000 

The list of employees who are considered eligible to vote in the election is called the 

Excelsior list. This list is prepared by the employer and is given to the Regional Director within 7 

days after the approval of an election agreement or issuance of a decision and direction of 

election. Excelsior Underwear, 156 NLRB 1236 (1966); and NLRB v. Wyman-Gordon Co., 394 

U.S. 759 (1969). This list is in turn provided to all parties to the election. (CHM section 11312.2.) 

The list must include the full first and last names of the employees as well as their addresses. 

North Macon Health Care Facility, 315 NLRB 359 (1994); and Weyerhaeuser Co., 315 NLRB 

963 (1994). 

The procedures for the production and handling of the Excelsior list are contained in the 

CHM section 11312. Failure to comply with the Excelsior rule is grounds for setting aside the 

election when proper objections are filed. A summary of the case law dealing with Excelsior

objections is contained in section 24-324. 

Lists of eligible voters, normally the same lists as constitute the Excelsior list, are made 

available to the parties for inspection and possible challenges. These do not purport to be a final 

list of all eligibles; challenge procedures guarantee the right of every possible voter to cast a 

ballot. In these circumstances, the inadvertent omission of a small number of employees from the 
VOTING ELIGIBILITY 273

eligibility list is not a sufficient basis for invalidating an election. Jat Transportation Corp., 131 

NLRB 122 (1961). The burden of checking the accuracy of the list rests with the participating 

union. Kennecott Copper Corp., 122 NLRB 370 (1959). The mere preparation and checking of 

such a list does not constitute an agreement that precludes the possibility of challenges at the 

election, either as to names appearing on, or names omitted from, such list. It is regarded as “a 

guide or a tool the use of which is to facilitate the election procedure.” O. E. Szekely &

Associates, 117 NLRB 42, 44–45 (1957). See also Cavanaugh Lakeview Farm, 302 NLRB 921 

(1991). 

See also section 24-324. 

23-520 Stipulated Eligibility Lists (Norris Thermador) 

362-6703 

370-3533-4000 

737-7078-5000 

To codify its policy, the Board, in Norris-Thermador, adopted the policy that parties to a 

representation proceeding should be permitted definitively to resolve as between themselves

issues of eligibility prior to the election if they clearly evidence their intention to do so in writing. 

Therefore, where parties enter into a written and signed agreement which expressly provides that 

issues of eligibility resolved therein shall be final and binding upon the parties, “such an 

agreement, and only such an agreement,” is considered a final determination of the eligibility

issues “unless it is, in part or in whole, contrary to the Act or established Board policy.” This is 

known as the Norris-Thermador rule since it was adopted in Norris-Thermador Corp., 119

NLRB 1301 (1958). A list is sufficient even if the stipulation does not include an on actual unit 

description. Riveredge Hospital, 251 NLRB 196 (1980). 

Thus, where the parties incorporated an eligibility list in an election agreement which met the 

Norris-Thermador requirements, the Board found that the parties intended the list as prepared to 

be final and binding, and it deemed irrelevant the fact that an employee had been excluded from 

the list through “inadvertence and not as a result of discussion and agreement on his eligibility.” 

Pyper Construction Co., 177 NLRB 707 (1969). 

The Norris-Thermador rule has been strictly applied and the Board has only permitted one 

“narrow exception” to it. Thus, in Banner Bedding, 214 NLRB 1013 (1974), the Board 

announced that it will accept an oral agreement only where both parties agree to its contents. See 

discussion of this exception in NLRB v. Westinghouse Broadcasting & Cable, 849 F.2d 15 (1st

Cir. 1988). Compare Giummarra Electric, 291 NLRB 37 (1988), in which one party to the

alleged agreement denied its existence. In St. Peters Manor Care Center, 261 NLRB 1161 

(1982), the Board rejected an oral stipulation where it came just prior to the election and was 

inconsistent with the election agreement. 

Where, however, there was nothing in the stipulation for certification which indicated that 

there was an agreed-upon addition stipulated to be final and binding on the parties, the document, 

as it stood, did not sufficiently reveal an intent on the part of the parties to be bound within the 

meaning of the Norris-Thermador rule. Cooper Mattress Mfg. Co., 225 NLRB 200 (1976). 

The Board does not honor stipulations, whether under Banner Bedding or Norris-Thermador

as to statutory exclusions. Rosehill Cemetery Assn., 262 NLRB 1289 (1982); Judd Valve Co., 248 

NLRB 112 fn. 3 (1980). Thus, as clearly enunciated in the statement of the Norris-Thermador

rule itself, the election agreement is final and binding unless it is contrary to the Act or

established Board policy. Where ballots were challenged on the ground of supervisory status and 

consequent statutory exclusion, the party was not, under Norris-Thermador, precluded from

raising the issue as to their eligibility. It would have contravened the statutory policy “if by

agreement of the parties supervisors were irrevocably rendered eligible to vote.” Fisher-New

Center Co., 184 NLRB 809 (1970). 
274 VOTING ELIGIBILITY

A distinction has been drawn between the rule just stated and the one set out in Cruis Along 

Boats, 128 NLRB 1019 (1960). The policy applied in Cruis Along “was intended to apply to 

stipulations as to unit placement made at representation hearings and was not intended to modify

the policy applicable to agreements as to eligibility made in consent election cases.” Lake Huron 

Broadcasting Corp., 130 NLRB 908, 909–910 (1961). See also Laymon Candy Co., 199 NLRB 

547 (1972), and in particular footnote 2 which addresses itself to the Cruis Along distinction and

also raises a question concerning the nature of the stipulation. 

Nor will the Board permit the Norris-Thermador agreement to permit an ex-employee to 

vote. In Inacomp America, Inc., 281 NLRB 271 (1986), an employee whose name was included

on a Norris-Thermador list but who resigned and left the employer before the election, was not 

permitted to vote. Compare Trilco City Lumber Co., 226 NLRB 289 (1976), in which an 

employee was permitted to vote who was included on the list but had not yet begun active work. 

23-530 Construing Stipulations of the Parties in Representation Cases 

393-6054-6750 

401-5000 

420-7312 

737-7078-5000 

The Board will accept stipulations of parties unless they are contrary to record evidence, the 

Act, or Board policy. Carl’s Jr., 285 NLRB 975 (1987). Compare Hollywood Medical Center, 

275 NLRB 307 (1985), in which rejection of the stipulation would have resulted in a postelection 

challenge as to agreed-upon professional employees, and Cabrillo Lanes, 202 NLRB 921, 923 fn. 

12 (1973), in which a stipulation that would have excluded regular part-time employees was 

rejected prior to the election. 

In Caesar’s Tahoe, 337 NLRB 1096 (2002), the Board formally adopted the three-prong test 

for analyzing stipulations articulated in Associated Milk Producers, Inc. v. NLRB, 193 F.3d 539

(D.C. Cir. 1999). Under this test, the Board must first determine whether the stipulation is 

ambiguous. If the objective intent of the parties is expressed in clear and unambiguous terms in

the stipulation, the Board simply enforces the agreement. If, however, the stipulation is

ambiguous, the Board must seek to determine the parties’ intent through normal methods of 

contract interpretation, including examination of extrinsic evidence. See McFarling Foods, Inc., 

336 NLRB 1140 (2001); South Coast Hospice, 333 NLRB 198 (2000); and Royal Laundry, 277 

NLRB 820, 821 (1985). A classification will be deemed to be excluded if it is not mentioned in 

the inclusions and “all other employees”are specifically excluded. Bell Convalescent Hospital,

337 NLRB 191 (2001).

If the parties’ intent still cannot be discerned, then the Board determines the bargaining unit 

by employing its normal community-of-interest test. 

For a description of the Board’s approach to ascertaining the parties’ intent, see Viacom 

Television, 268 NLRB 633 (1984). See also Southwest Gas Corp., 305 NLRB 542 (1991);

Business Records Corp., 300 NLRB 708 (1990) and S & I Transportation, 306 NLRB 97 (1992). 

An employer who stipulates to the inclusion of a classification is later barred from raising the 

inclusion as a defense in a refusal-to-bargain case. Premier Living Center, 331 NLRB 123

(2000). In Red Lion, 301 NLRB 33 (1991), the Board was confronted with a hearing officer’s

rejection of a stipulation that had no factual basis. In light of the due-process problems

surrounding the hearing officer’s initial acceptance of the stipulation, the Board permitted the 

parties to proffer supplemental evidence. 

For a discussion of policies concerning the effect of Stipulated Election Agreements, see

T & L Leasing, 318 NLRB 324 (1995) (Regional Director cannot vary terms of agreement absent 

special circumstances); Grant’s Home Furnishings, 229 NLRB 1305 (1977) (alleged breach of 

agreement by Regional Director because of Board agent tardiness); Sunnyvale Medical Clinic, 
VOTING ELIGIBILITY 275

241 NLRB 1156 (1979); and Dynair Services, 314 NLRB 161 (1994) (changed circumstances 

caused by intervening labor organization); and Consolidated Print Works, 260 NLRB 978 (1982) 

(consequences of failing to object to changed circumstances). 

Where the intent of the parties is unclear or ambiguous, the Board will apply a community of

interest test. Laneco Construction Systems, 339 NLRB 1048 (2003); and Kalustyans, 332 NLRB 

843 (2000). If the stipulation is clear and unambiguous, the Board will not examine the intent of 

the parties. South Coast Hospice, and Kalustyans, supra. Space Mark, Inc., 325 NLRB 1140

(1998). But a stipulation cannot override a mandate of the statute. Pontiac Osteopathic Hospital, 

327 NLRB 1172 (1999) (stipulation to include medical technologists cannot override mandate 

that Board conduct Sonotone elections). 

In a recent series of cases, the Board reaffirmed its longstanding practice to follow the 

objective intent of stipulating parties where the stipulation does not violate Board law. Caesars

Tahoe, supra; G & K Services, Inc., 340 NLRB No. 103 (2003); Peirce-Phelps, Inc., 341 NLRB 

No. 78 (2004); and Bell Convalescent Hospital, 337 NLRB 191 (2001); Northwest Community

Hospital, 331 NLRB 307 (2000); Cleveland Indians Baseball Co., 333 NLRB 579 (2001); 

National Public Radio, 328 NLRB 75 (1999); Highlands Regional Medical Center, 327 NLRB 

1049 (1999); Venture Industries, 327 NLRB 918 (1999); Laidlaw Transit, Inc., 322 NLRB 895

(1997) (stipulated election agreement is a contract); Pacific Lincoln-Mercury, 312 NLRB 901 

(1993); Windham Community Memorial Hospital, 312 NLRB 54 (1993); and Gala Food

Processing, 310 NLRB 1193 (1993). See also Dunham’s Athleisure Corp., 311 NLRB 175 

(1993), distinguishing Vent Control, Inc., 126 NLRB 1134 (1960). 

Recently the Board in Los Angeles Water & Power Employees’ Assn., 340 NLRB No. 146

(2003), stated: 

In applying the first prong of the Caesars Tahoe analysis, the Board must determine whether

the stipulated unit is ambiguous. In doing so, the Board compares the “express language of

the stipulated unit with the disputed classifications.” Northwest Community Hospital, 331 

NLRB 307, 307 (2000) (citing Viacom Cablevision, 268 NLRB 633 (1984)). The Board 

will find that the parties have “a clear intent to include those classifications matching the 

description and a clear intent to exclude those classifications not matching the stipulated unit 

description.” Id. Accord: Bell Convalescent Home, 337 NLRB 191 (2001). 

Once a stipulation has been approved, a party may withdraw only by agreement or by

showing unusual circumstances. Hampton Inn & Suites, 331 NLRB 238 (2000). Accord: NLRB 

v. MEMC Electronic Materials, Inc., 363 F.3d 705 (8th Cir. 2004). 

The Board does not consider itself bound by a bargaining history resulting from a stipulated 

unit in a consent election. See section 12-221, supra.