Mercy College

National Labor Relations Board - Board Decisions

Aug 16, 1974

212 N.L.R.B. 925 (N.L.R.B. 1974)

MERCY COLLEGE
Mercy College and Mercy College Faculty Council,
Petitioner . Case 2-RC-16181
August 16, 1974
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On March 7, 1974, the Regional Director for Re-
gion 2 issued his Supplemental Decision in which he
overruled Employer and Petitioner's objections to
conduct affecting the results of the election, sustained
the challenges to two ballots, and ordered the opening
and counting of the third challenged ballot cast in the
election held on November 7 and 8, 1973.1 Thereafter,
pursuant to National Labor Relations Board Rules
and Regulations, the Employer filed a timely request
for review of the Regional Director's Supplemental
Decision on the ground, inter alia, that he erred in
overruling Employer's Objection I pertaining to a dis-
puted ballot tabulated by the Board agent at the count
as a "yes" vote.
By telegraphic Order dated April 30, 1974, the Na-
tional Labor Relations Board granted the request for
review insofar as it related to Objection 1, and denied
review in all other respects.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review and makes
the following findings:
The Employer's Objection 1 relates to the action of
the Board agent in counting as a "yes" vote, during
tabulation of the ballots at the conclusion of the bal-
loting, a ballot marked as follows:
MARK AN "X" IN THE SQUARE OF YOUR CHOICE
YES NO
DO NOT SIGN THIS BALLOT Fold and drop in ballot
box. If you spoil this ballot return it to the Board
Agent for a new one.
1 The tally of ballots for the election showed that 42 eligible voters cast
ballots for, and 41 against, the Petitioner Three ballots were challenged The
challenges are determinative of the results of the election
2
On May 6, 1974, the Employer filed a telegraphic request for reconsidera-
tion of the issue relating to the challenged ballot which the Regional Director
ordered opened and counted By telegraphic Order dated May 13, 1974, the
Board denied this request
925
The Regional Director found that this ballot was
properly tabulated as a "yes" vote. He concluded that
the intent of the voter was "clearly expressed" to vote
that choice. He reasoned that there was a discernible
"X" in the designated "no" square which had been
heavily shaded over, and the designated "yes" square
contained a standard "X," thus indicating the voter's
intent to vote "yes." The Regional Director concluded
it was reasonable to infer from the heavy overshading
that the voter was attempting to obliterate the "X" in
the "no" square which he had made.
In disputing the Regional Director's findings with
respect to the ballot in question, the Employer asserts
that the applicable test is whether the voter has clearly
and unequivocably indicated his choice and that
where there is reasonable doubt as to the voter's in-
tent, the ballot must be ruled void. It argues that the
choice of the voter herein cannot be definitely and
certainly ascertained and that the determination of
the representation rights of the unit employees should
not possibly turn on such an ambiguously marked
ballot. Further, the Employer points out that the bal-
lot contains the admonition "if you spoil this ballot,
return it to the Board Agent for a new one" and the
failure of the voter here to do so, at the very least,
requires a finding that the intent of the voter is un-
clear.
We find merit in the contentions of the Employer
that the intent of the voter here is not free from doubt
and a ballot so marked should not be considered in
determining the representation rights of the unit em-
ployees.
In finding a ballot to be valid the Board requires
that the intent of the voter in marking his ballot must
be clearly expressed. Here the markings in either of
the designated squares, absent the marking in the
other square, would be considered a clear indication
of the intent of the voter.' However, inasmuch as both
designated squares have been marked in such a man-
ner, the true intent of the voter cannot, in our judg-
ment, be ascertained with the required degree of
certainty. We deem as inadequately supported specu-
lation the inference drawn by the Regional Director
that the voter was attempting to obliterate his initial
choice. Rather, we deem this is a spoiled ballot which
should not be counted. Accordingly, we find this bal-
lot to be void 4 and we shall remand the case to the
Regional Director for the purpose of opening and
counting the sole remaining challenged ballot and is-
suing a revised tally of ballots.
3 Bridgeton Transit, 124 NLRB 1047 (1959)
4Gerber Plastic Company, 110 NLRB 269 (1954), Dornback Furnace &
Foundry Company, 115 NLRB 350 (1956), Jefferies Banknote Co, 116 NLRB
265 (1956)
212 NLRB No. 134
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the instant case be, and it
hereby is, remanded to the Regional Director to open
and count the challenged ballot and issue a revised
tally of ballots and an appropriate certification.
MEMBER FANNING , dissenting:
Citing Gifford-Hill & Co., Inc., 181 NLRB 729
(1970), the Regional Director found that the voter had
clearly expressed his intent to vote yes by an unequiv-
ocal "X" in the "yes" box , considered in conjunction
with the faint "X" in the "no" box which was "heavily
shaded over ." Of considerable interest in this connec-
tion is the decision of the United States Court of
Appeals for the First Circuit in N. L. R. B. v. Whitins-
ville Spinning Ring Company, 199 F.2d 585 , 588 (1952),
dismissing the Board 's petition for enforcement of a
bargaining order . Because of erasure in the "yes" box,
the Board there found the determinative ballot "clear-
ly spoiled and mutilated" though the "X" in the "no"
box was clear . The court said:
Undoubtedly the Board in the exercise of the
wide discretionary powers conferred upon it by
Congress could within the democratic framework
have adopted a rigid policy or practice of regard-
ing all ballots marked in an unorthodox manner
as mutilated and therefore void , in order to avoid
disputes over ballots and thus expedite counting
and the determination of bargaining representa-
tives. It has not done so, however , but instead it
has adopted a more liberal policy in conformity
with the view which apparently prevails in this
country with respect to political elections. . .
We must confess that we can find no logical rea-
son why the Board should single out an erasure,
or an attempt at erasure , on a ballot for special
treatment by considering all such ballots neces-
sarily mutilated and therefore void. Moreover, it
seems to us only fair that a voter should be ap-
prised of such an extraordinary rule. While the
statement printed on the ballot directed the voter
to obtain a new ballot if he "spoiled " the original
one, the word "spoiled" was in no way defined,
and it is difficult for us to say that the average
voter would consider a ballot "spoiled" merely
because it contained a slight erasure . If departure
from orthodoxy in marking ballots is to be coun-
tenanced by the Board at all, as it clearly is from
the decisions cited above , then, in the absence of
any question of voter identification , the problem
is, as the Board has repeatedly held, to discover
if possible the voter's intent.
Here it is reasonable to conclude that the voter in-
tended to obliterate , by pencil rather than erasure, the
"X" he had placed in the "no" box and did not con-
sider the ballot spoiled merely because of this fact. I
agree that the ballot was properly tabulated as a "yes"
vote , as recommended by the Regional Director.