Staco, Inc.

STACO, INC. Staco, Inc. and United Furniture Workers of America, AFL-CIO, Petitioner. Case i-RC- 15176 January 31, 1978 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered objections to and determinative challenges in an election held on June 29, 1977,1 and the Regional Director's report recom- mending disposition of the same. The Board has reviewed the record in light of the Employer's exceptions2 and brief and hereby adopts the Region- al Director's findings and recommendations. The Employer's Objection 3 alleges that one ballot was improperly counted as a void ballot when it was clear that the voter intended to cast a "No" vote, as evidenced by the word "No" written on the back of the ballot. The Regional Director's investigation disclosed that the disputed ballot had no markings on its face, but had the word "No" written on the blank reverse side. The Regional Director, relying on the rationale in Columbus Nursing Home, Inc., 188 NLRB 825 (1971), concluded that the Board agent acted properly in voiding the improperly marked ballot. He therefore recommended that the objection be overruled. The Employer has excepted to the Regional Director's recommendation and, essential- ly, urges the Board to reconsider its stated policy in light of the contrary court decisions.3 We agree with the Regional Director that the ballot in dispute should be declared void for the voter "displayed a remarkable indifference to the instruc- tions and to time-honored election procedures in general." Columbus Nursing Home, Inc., supra at 825- 826. As we stated in that case (at 825): It is the policy of the Board to count irregularly marked ballots whenever the intent of the voter is clearly apparent. However, where, as here, a ballot contains no markings on its face, any conclusion drawn about the voter's intent based on markings on the back of the ballot must be almost entirely speculative. Rather than [sic] I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was 68 for the Petitioner, 67 against, with 8 challenged ballots, a sufficient number to affect the results of the election. One ballot was declared void. 2 In the absence of exceptions thereto, we adopt, proforma, the Regional Director's recommendation that the issues raised by the eight challenged ballots be remanded for a heanng, and that the Employer's Objections 1, 2, 234 NLRB No. 101 engage in such speculation, the Board has, since 1951, followed a policy of invalidating ballots marked in a manner so radically different from the normal method of marking ballots. Moreover, we agree with Circuit Judge Heaney's well-reasoned dissent in Roberts Door and Window, supra at 353, where he points out that two additional reasons exist for not counting such ballots: The first is certainty. Employees, under current Board policy can be told plainly that no ballots marked on the reverse side will be counted. Under our decision today, such an instruction cannot be given. The second is that a rule giving the Board discretion to count such ballots inevit- ably operates to the disadvantage of the employ- ees favoring Union representation. If the Board rules that a ballot marked on the reverse side should be counted against the Union, there is no effective way under existing precedents that the Union can obtain meaningful court review. The employer, however, can have court review of a decision to count a ballot for the Union by refusing to bargain. Accordingly, we respectfully adhere to our posi- tion, as most recently expressed in Columbus Nursing Home, supra, notwithstanding the contrary decisions of the U.S. Courts of Appeals for the Fourth, Fifth, and Eighth Circuits, until such time as the U.S. Supreme Court has passed on the matter. According- ly, we find the disputed ballot void and overrule the Employer's Objection 3. ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised by the challenges to the ballots of James Hamblin, Sr., Michael Hampl, Alfred Pemberton, Frederick John Rhode VI, David Rudolph, Margaret Williams, Phyllis Jones, and Charles Ward. IT IS FURTHER ORDERED that following the hearing, the Hearing Officer designated for the purpose of conducting the hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board, as to the disposition of the challenges. Within the time prescribed by the and 5 be overruled. The Employer's exceptions to the Regional Director's recommendation that its Objection 4 be overruled raised no material issues of fact or law warranting reversing the Regional Director or a hearing herein. 3 Roberts Door and Window Company v. N.LR.B., 540 F.2d 350 (C.A. 8, 1976), N.LR.B. v. Tobacco Processors, Inc., 456 F.2d 248 (C.A. 4, 1972), N. L.R.B. v. Titche-Goettinger Co., 433 F.2d 1045 (C.A. 5, 1970). 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's Rules and Regulations, Series 8, as amended, either party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendation of the Hearing Officer. IT IS ALSO FURTHER ORDERED that the above- entitled case be, and it hereby is, remanded to the Regional Director for Region 1 for the purpose of arranging such hearing, and that the said Regional Director be, and hereby is, authorized to issue notice thereof. MEMBER MURPtHY, dissenting in part: I agree with my colleagues' decision to adopt the findings and recommendations of the Regional Di- rector in all respects except his recommendation to overrule Objection 3. The question raised in Objec- tion 3 is whether in this election, involving a single petitioning Union, the Board agent improperly void- ed a ballot containing no markings on its face but bearing the word "NO" on its back. I believe that the ballot should have been counted since it clearly shows that the voter intended to vote against repre- sentation by the Union. I believe the time has come for the Board to reevaluate its position stated in Columbus Nursing Home, Inc., supra. I fully agree with the rationale of the three circuit courts of appeals, cited by the majority in footnote 3, supra, which have disagreed with the Board's practice since 1951 of voiding ballots which, as here, are unmarked on the front but clearly express the voter's intent on the back.4 In this case, as in the three circuit court decisions, a standard National Labor Relations Board ballot asked the employee-voter the question: "Do you wish to be represented for purposes of collective bargaining by-the named Union?" The ballot in- structed the voter to mark an "X" in the square of his or her choice beneath the word "yes" or beneath the word "no." The voter in each of the four cases failed to place an "X" in the box of his or her choice, but instead, wrote the word "No" on the blank reverse side of the ballot. In my judgment, and in that of the three courts, this manner of marking a ballot, while deviating from specific instructions on the ballot, clearly revealed the voter's choice. The Board reasons for invalidating ballots marked in this manner are threefold. First, the intent of the voter is not c ;tten on the back of the ballot. Second, marking on the back of a ballot 4 Before 1951 it was the Board's practice to count ballots marked in this manner since such ballots were unambiguously marked and the voter's makes it easy to identify the voter and could be used by a party to the election to insure that an employee votes in a particular manner. Third, it would be unnecessarily time-consuming for the Board agent counting the ballots to be required to turn over each ballot to examine its reverse side. I reject these arguments substantially for the reasons stated by the courts. Thus, a ballot with the word "No" or "Yes" on its back clearly manifests the voter's intent. The Board's policy has been to count any ballot even if irregularly marked, if it contains a clear expression of the voter's preference. Greg Moore Co., 178 NLRB 483 (1969); Knopp Sherrell Company, 181 NLRB 1547 (1968); Bridgeton Transit, 124 NLRB 1047 (1959); Pioneer Electronics Corpora- tion, 112 NLRB 1010 (1955). A ballot marked on its back no more discloses the identity of the voter than a ballot bearing irregular markings on its face. Finally, it would not be unduly burdensome or time consuming for the Board agent conducting the count to flip each ballot over. As stated, the courts have not been persuaded by the Board's reasoning on this issue. It is noteworthy that the Fifth Circuit in Titche-Gottinger, supra, rejected the Board's argument that marking a ballot on the reverse side is too radical a departure from the accepted norm in marking ballots to permit conjec- ture as to the voters' intent. The court noted that the Board's policy has consistently been to give effect to the voters' intent whenever possible. Similarily, the Fourth Circuit in Tobacco Processors, supra, in a brief per curiam opinion, declined to enforce the Board's bargaining order because "the Board excluded four ballots which were blank on their face but which had the word 'no' written on their back. The ballots should have been counted since they clearly mani- fested the voters' intention not to be represented by the Union." Likewise, the Eighth Circuit, in Roberts Door and Window Company, supra, denied enforce- ment of the Board's bargaining order, stating they could find no justification or logic in a distinction between counting ballots which were unconvention- ally marked on their face while voiding ballots not marked on their face, but evidencing the voters' intent on their back. Additionally, the court was not persuaded by the Board's arguments that the mis- marked ballot provided a means of identifying the voter. For all of the foregoing reasons, I would find the ballot in question to be a valid ballot and sustain the Employer's Objection 3. intent was clear. Marshall, Meadows d Steward, Inc., 59 NLRB 1286, 1287 (1944). 594