Hydro Conduit Corporation

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1352 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydro Conduit Corporation and General Teamsters
Local 137, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case 20-RC-15340
March 31, 1982
DECISION AND CERTIFICATION OF
REPRESENTATIVE
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Acting Regional
Director for Region 20 on June 30, 1981, an elec-
tion was conducted on July 23, 1981, under the di-
rection and supervision of the Acting Regional Di-
rector, among the employees in the appropriate
unit. At the conclusion of the election, the parties
were furnished with a tally of ballots which
showed that of approximately 43 eligible voters 21
cast ballots for the Petitioner, 20 cast ballots
against the Petitioner, and I ballot was challenged.
The challenged ballot was sufficient in number to
affect the results of the election. Thereafter, the
Employer filed a timely objection to conduct af-
fecting the results of the election.
On August 20, 1981, the Acting Regional Direc-
tor issued and duly served on the parties his
Report on Objections and Challenged Ballot rec-
ommending that the challenge to the ballot be sus-
tained and that the Employer's objection be sus-
tained. He further recommended that a revised
tally of ballots issue to show that of 43 eligible
voters 20 cast ballots for, and 20 against, the Peti-
tioner, and that a certification of results issue.
Thereafter, the Petitioner filed timely exceptions to
the report.
The Board has considered the objections, the
challenged ballot, the Acting Regional Director's
report, the exceptions, and the entire record in this
case, and hereby adopts the Acting Regional Di-
rector's findings, conclusions, and recommenda-
tions to the extent consistent herewith.'
In its objection to the election, the Employer al-
leged that one ballot which was left blank on the
front side but which had the word "si" written on
the back was improperly counted as a vote in favor
of the Union.
The Acting Regional Director, relying on Co-
lumbus Nursing Home, Inc., 188 NLRB 825 (1971),
and in accordance with existing Board policy,
found that the ballot, marked only on the back,
should not have been counted as a vote for the
Union, and sustained the objection. As a conse-
quence, the election ended in a tie vote.
In the absence of exceptions thereto, we hereby adopt, proforma, the
Acting Regional Director's findings and recommendations that the chal-
lenge to the ballot of James M. Faux be sustained.
260 NLRB No. 178
In its exception to the Acting Regional Direc-
tor's finding, the Petitioner contends that the void-
ing of the ballot which clearly showed the intent of
the voter to vote for the Union is inequitable, in-
consistent with the Board's policy of considering
the intent of the voter, and contrary to the admoni-
tion of several courts of appeals which have held
that the Board has been inconsistent in not consid-
ering the intent of voters when such intent is mani-
fested on the back of the ballot while considering
intent expressed irregularly on the front of a ballot.
We find merit in this exception.
In Columbus Nursing Home, Inc., supra, the
Board stated:
It is the policy of the Board to count irregu-
larly 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 engage in such speculation, the Board
has, since 1951, followed a policy of invalidat-
ing ballots marked in a manner so radically
different from the normal method of marking
ballots.
The Board has continued to adhere to that policy
to the present time.
However, in light of the refusal of several courts
of appeals to accept the Board's policy,2 and the
refusal of the Supreme Court to grant certiorari
and render a decision on this issue,3 the Board has
reevaluated its position. We now acknowledge, in
agreement with the courts, that it is inconsistent to
consider voter intent if clearly, although irregular-
ly, manifested on the front of a ballot, and yet not
to consider a clear demonstration of voter intent if
expressed on the reverse side of a ballot. There-
fore, in keeping with our longstanding policy of at-
tempting to give effect to voter intent whenever
possible, we will hereafter count any unambiguous
expression of voter intent as expressed on the
ballot. Any doctrine to the contrary as expressed in
Columbus Nursing Home, Inc., supra, or other cases
where we have refused to consider voter intent
when marked on the back of the ballot, is hereby
overruled.
2 NL.R.B. v. Manhattan Corporation. Manhattan Guest House, Inc., 620
F 2d 53 (5th Cir. 1980); Robert Door and Window Company v N.L.R.B.,
540 F2d 350 (8th Cir 1976); Mycalex Division of Spaulding Fibre Co. Inc
v N.L.R.B., 481 F.2d 1044 (2d Cir. 1973); N.L.R.B. v Tobacco Processors,
Incorporated, 456 F.2d 248 (4th Cir. 1972); N.L.RB. v. Titche-Goettinger
Company, 433 F 2d 1045 (5th Cir 1970)
N.L.R.B. v Manhattan Corp., Manhattan Guest House. Inc., 452 U S.
916 (1981).
1352
HYDRO CONDUIT CORPORATION
In this case the election involved only one union,
and the ballot presented a single yes or no choice.
Since the word "si" written on the back of the
ballot unmistakably indicates that the Spanish-
speaking employee wishes to be represented by the
Union, we find that the ballot is valid and counts
as a vote for the Union. Therefore, the Employer's
objection is overruled. A second revised tally of
ballots will indicate that of approximately 43 eligi-
ble voters 21 cast ballots for the Petitioner and 20
cast ballots against the Petitioner; there are no un-
resolved challenged ballots. We shall certify the
Union as the representative of the Employer's em-
ployees in the appropriate unit.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for General Teamsters Local
137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, and that, pursuant to Section 9(a) of the Na-
tional Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the following appropriate unit
for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or
other conditions of employment:
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its Highway 32, Orland, Califor-
nia, plant; excluding office clerical employees,
quality control employees, guards and supervi-
sors as defined in the Act.
MEMBER FANNING, concurring and dissenting:
I agree with my colleagues that it is inconsistent
for the Board to consider the intent of voters if ex-
pressed in an irregular manner on the front of the
ballot but not if it is marked on the back but I dis-
agree with their solution. Our ballots contain clear,
explicit instructions on how a voter is to designate
his or her selection. I do not know why in some
cases voters ignore these instructions. It is always
possible, of course, that a ballot is cast in a manner
at variance with the norm because the voter in-
tended to identify that ballot. Such an arrangement
could easily be used by a party to the election to
insure that an employee votes in a particular prear-
ranged manner, could destroy the secrecy of repre-
sentation elections, and could lend encouragement
to fraud, bribery, or corruption.
I agree that we should always attempt to give
the fullest effect to the intent of the voter where
his intent is clear and his ballot has been cast in a
manner consistent with the efficient administration
of a free representation election. However, I am
persuaded that any ballot that is not properly
marked according to the instructions provided on
the face of the ballot should be invalidated. By ex-
panding our search for voter intent the majority
has opened the door to speculation and subjective
interpretation as varied as the different officials
who run our elections, the Board Members who
are requested to review the decisions of subordi-
nate officials, and appellate judges who are called
on to review Board decisions. My colleagues are
now encouraging just that kind of extended litiga-
tion.
In a time of reduced appropriations with strin-
gent budget and personnel constraints, it seems to
me our review and adjudicating time would be
spent more productively and more efficiently on
other significant matters that would require the ex-
ercise of our experience and judgment. I think the
Board's concern for the proper administration of an
election justifies a fixed and impartial rule that no
irregular mark on the ballot should count as a valid
vote. This lies well within our administrative au-
thority. I would have preferred that the Board,
through its rulemaking procedures, formulate a spe-
cific rule that any ballot not marked in accordance
with the clear and explicit instructions printed on
the ballot will not be counted. This would permit
every voter to cast a clear vote, expedite the final-
ization of elections, and avoid the unnecessary use
of time and money to guess at what a voter
might-or might not-have intended.
Court dissatisfaction with the Board's past ap-
proach has, by and large, stemmed from dissatisfac-
tion with our practice of determining the intent of
a voter who mismarks the front of the ballot while
holding that similar marks on the back do not show
intent. I believe, however, that the courts would
honor a Board rule based on the considerations al-
luded to above.
However, as my colleagues have rejected this
approach, I agree with them that the disputed vote
in this case was an affirmative vote for the Union
and I would certify the Union.
MEMBER JENKINS, dissenting:
I would continue to adhere to the Board's long-
standing policy invalidating ballots marked solely
on the reverse side of the ballot for the reasons set
forth in Columbus Nursing Home, Inc., 188 NLRB
825 (1971), and Manhattan Corporation, Manhattan
Guest House, Inc., 240 NLRB 272 (1979). Accord-
ingly, I would adopt the Acting Regional Direc-
tor's recommendation to sustain the objection to
the ballot at issue herein.
1353