San Joaquin Compress & Warehouse Co.

SAN JOAQUIN COMPRESS & WAREHOUSE COMPANY 23 San Joaquin Compress & Warehouse Company and Local 78, International Longshoremen's & War- ehousemen's Union, Petitioner. Case 32-RC- 919 August 11, 1980 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDAI.E 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 a determinative chal- lenge in an election held on January 7, 1980,' and the Regional Director's report 2 recommending dis- position of same. The Board has reviewed the record in the light of the Employer's exceptions, supplemental exceptions, 3 and briefs and hereby adopts the Regional Director's findings and recom- mendations. The challenged ballot in issue was marked in pencil with what appears to be an "X" or check- mark and additional random markings in the "No" box. There were no markings in the "Yes" box. At the count of the ballots, the Board agent conduct- ing the election ruled that the ballot was void. The Employer objected to this determination and the ballot was counted as a "challenged" ballot. The Acting Regional Director found that the ballot should be treated as being void and recom- mended that the Employer's challenge to this ballot be overruled. In making his determination, the Acting Regional Director reasoned that it could not be ascertained from the markings on the ballot whether the voter had intended to emphasize his or her "No" vote, or whether the voter had at- tempted to scratch out a mark in the "No" box, thus intending to cast a "no-choice" ballot. We agree with the Acting Regional Director that the subject challenged ballot should be de- clared void as it does not disclose the intent of the voter with the required degree of certainty. In Abtex Beverage Corporation, 237 NLRB 1271 (1978), the Board found a ballot to have been valid and cast for the union where it contained a clear image of an "X" in the "No" box which had been 'i he elction was conducted pursuan to a Stipulation for Certifica- lion Ulpon Conseinl Election. The tally was 21 for and 20 against the Pe- titioner: there were 2 challenged haloth. I was declared oild by the Board agent conducting the electlion. and I involves substantial and mate- rial issues of fact for which the Acting Regional Direcltor has ordered a hearing to he held A cop, of the hallot is attached hereto 3 In the absence of exceptions tIhrerto. e adopt, proi lir/u. the Acting Regional Director's rcommcndalton that the issues raised bh the chal- lenged ballot of Susan Hrson he resol ed h) a hearing 251 NLRB No. 7 scratched over with circular markings; and a clear "X" in the "Yes" box. The Board, with Members Jenkins and Murphy dissenting, found that these markings clearly reflected the voter's intent to obliterate the mark in the "No" box and cast a "Yes" vote. The Board reasoned in Abtex that the voter, having used a pen, was probably unable to erase the "X" in the "No" box, and instead, he or she "used markings to cover one of the "X"'s of a nature commonly used to delete material." The re- maining clear "X" in the "Yes" box therefore re- vealed the voter's true intent. In this case, unlike Abtex, there are no other markings on the ballot other than in the "No" box to aid in ascertaining the voter's true intent. Fur- thermore, unlike Abtex, the voter herein marked the ballot in pencil, and it is unknown whether he or she had an eraser or could have erased the mark in the "No" box.4 We would not find it wholly un- reasonable to conclude that the voter might have changed his or her mind after voting "No," and then decided to make "no-choice" by obliterating the original mark in the "No" box. Neither would we find it beyond reason to conclude that the voter merely intended emphasis by darkening whatever mark had been made originally in the "No" box. However, either of these conclusions would be based on mere speculation and cannot be made with the requisite degree of certainty. Therefore, in this case we adhere to our policy of invalidating a ballot where the intent of the voter in casting that ballot is unclear because of the irregular nature of the markings on the ballot.5 Ac- cordingly, we find the disputed ballot to be void and we shall remand the case to the Regional Di- rector for the purpose of conducting a hearing to resolve issues raised by the one remaining chal- lenged ballot. Our dissenting colleague would have no "quar- rel" if the Board intended by its decision here to examine ballot markings to determine whether they reflect a clear intent, but would disagree if a pre- sumption is being made that intent is unclear when- ever irregularity in marking occurs. We intend no such presumption. The thrust of the majority deci- sion here is simply that the markings do not make it possible for us to conclude what the voter meant in this case where the markings are in one box and are thoroughly confusing. The markings in the "No" hox in Ablexr are distlinguishable from those in the nstant case In .4lhrx there was a clear image of an X" wlth circular markings oer II It Ithis case. although there is an image of an "X" or check mark, it is not clear whether or not it was made before or after the other markings in the "No hbx (o/lumhbu .\urtng H/orme. Inc. 18 NLRH 825 (1971) 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to our colleague, however, we cannot agree that this "irregularly" marked ballot indicates with reasonable certainty the voter's intent. Rather, as illustrated above, it is an enigma. ORDER It is hereby ordered that the instant case be, and it hereby is, remanded to the Regional Director of Region 32, for the purpose of conducting a hearing to resolve issues raised by the challenge to the ballot of Susan Bryson, as ordered by the Acting Regional Director of Region 32. MEMBER JENKINS, dissenting: We are asked to decide on the validity of a ballot attacked as having been marked in a way that makes the voter's intention unclear. The mark- ings in question include an apparent "X" and some additional lines, all within or protruding slightly from the "No" box. There is no mark in the "Yes" box. I continue to believe what the Board stated in Mercy College, 212 NLRB 925 (1974), and in Duvall Transfer and Delivery Service, 232 NLRB 843 (1977): Markings in one box only, despite some ir- regularity, presumptively are a clear indication of the intent of the voter. The Board overruled Duvall Transfer in Abtex Beverage Corporation, 237 NLRB 1271 (1978), in which I dissented. The majority in Abtex, however, did not rule on the point at issue here. The majority in the instant case recognize this. The majority here relies instead on Columbus Nursing Home, Inc., 188 NLRB 825 (1971), and cites it for the proposition that the Board will in- validate a ballot "where the intent of the voter in casting the ballot is unclear because of the irregular nature of the markings on the ballot." If this means that the markings will be examined to determine whether they reflect a clear intent, I have no quar- rel with it. The majority appears to mean, howev- er, that any irregularity in the marking of the voter's choice presumptively makes his or her intent unclear. Such a proposition goes far beyond the holding in Columbus Nursing Home (which in- volved a ballot marked only on the back of the printed side) and cannot be said to be contemplated by the Board's Decision there. Here, unlike Colum- bus Nursing Home, the ballot was marked substan- tially in compliance with the instructions given, the markings could not go unnoticed after an inspec- tion of the face of the ballot, and the variance from the normal manner of marking ballots is too slight to suggest a prearranged signal for revealing the employee's vote. What remains is a ballot that was marked irregularly but which indicates with rea- sonable certainty the voter's intent. If, on the other hand, absolute certainty were the standard, only rarely would a contested ballot pass muster and many employees would be disenfranchised unnec- essarily. Therefore, unlike my colleagues, I would not in- validate the ballot but would count it as a valid "No" vote.