Abtex Beverage Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1271 (N.L.R.B. 1978)

ABTEX BEVERAGE CORPORATION
Abtex Beverage Corporation and International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers, Local #47, Petitioner. Case 16-RC-
7573
August 25, 1978
DECISION AND CERTIFICATION OF
REPRESENTATIVE
The Board has considered a single determinative
challenge in an election held November 5, 1977,' and
the Regional Director's report 2 recommending dis-
position of same. It has reviewed the record in light
of the Employer's exceptions and brief and hereby
adopts the Regional Director's findings and recom-
mendation.
The single challenge was to a ballot marked with
an "X" in both boxes. The "X" in the "No" box had
been scratched over with circular markings. At the
count of the ballots, the Board agent in charge of the
election ruled the ballot to be a "Yes" vote.
Employer's counsel objected to that ruling and the
ballot was tallied as a challenged ballot.
The Regional Director recommended that the
challenged ballot be counted as a "Yes" vote on the
grounds that a clear "X" was marked in the "Yes"
square and "[i]t is reasonable to infer from the mark-
ing in the "No" box that the voter, having used a
pen, could not erase his mark and attempted to obli-
terate the mark therein (footnote citation omitted
[sic])." We agree.3
Our dissenting colleagues, however, contend that
the ballot does not indicate which of the marks repre-
sents the intent of the voter. A reference to the ballot
quickly demonstrates the fallacy of that view. It is
readily apparent that the voter was attempting to ob-
literate the "X" mark, which had been placed in the
"No" square, and thus there is no doubt that the
voter intended to cast a "Yes" vote.
In effect, our dissenting colleagues penalize the
voter for marking his ballot with a pen. In J. L. P.
Vending Co., Inc., 218 NLRB 794 (1975), the Board,
including then-Chairman Murphy and Member Jen-
kins, found a ballot valid and cast for the union
where there had been an "attempt at erasure" in the
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 8 for, and 8 against, the Petitioner;
There was I challenged ballot.
1 A copy of the ballot is attached hereto. [Omitted from publication.]
We recognize that the facts in this case basically are indistinguishable
from those in Duvall Transfer and Delivery Service, 232 NLRB 843 (1977). in
which a panel consisting of Members Jenkins and Murphy with Chairman
Fanning dissenting sustained the challenge to a similarly marked ballot.
Accordingly, that Decision is hereby overruled to the extent it is inconsis-
tent herewith.
"No" square and a number of lines placed in the
"Yes" square. Here, the voter, having used a pen,
appears to have been unable to erase the "X" in the
"No" square and therefore attempted to obliterate
that mark. The fruits of this attempt are unambigu-
ous and we do not think this Board should be draw-
ing distinctions between attempts at erasure and obli-
terations by pen, which is the net effect of the
dissenting position. Thus, while we share our col-
leagues' concern that only ballots which clearly re-
veal the voter's choice should be deemed valid, we
are constrained to find that here the voter's choice is
clearly revealed and that the ballot here clearly re-
flects the voter's intent to vote "Yes." 4 Accordingly,
inasmuch as the revised tally of ballots shows that
Petitioner has received a conclusive majority of the
valid votes cast in the election, we shall issue a certi-
fication of representative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Chauffeurs, Warehouse-
men and Helpers, International Brotherhood of
Teamsters, Local #47 and that, pursuant to Section
9(a) of the Act the foregoing labor organization is the
exclusive representative of all the employees in the
following appropriate unit for the purpose of collec-
tive bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
INCLUDED: All road drivers employed by the Em-
ployer at its facility in Abilene, Texas.
EXCLt DED: All mechanics, production and main-
tenance employees, office clerical employees,
salesmen, professional employees, guards,
watchmen and supervisors as defined in the Act.
MEMBERS JENKINS and MURPHY, dissenting:
The facts herein are identical to those in Duvall
Transfer and Delivery Service, 232 NLRB 843 (1977),5
wherein the Board found a ballot marked in the
"Yes" and "neither" squares void, as it did not clear-
4 (Caribe Indusirial and Electrical Supplt, Inc.. 216 NLRB 168 (1975), re-
lied on by our dissenting colleagues is distinguishable. In that case there is
no explanation for the vertical line in the box other than that it indicated a
selection of that alternative Thus, the ballot showed two choices as having
been selected. Here the voter used markings to cover one of the "X" 's of a
nature commonly used to delete material. Thus, it is quite clear that the
voter was seeking to remove the "X" from the "No" box by making the
circular markings thereby leaving only one choice standing.
Citing Merct College, 212 NLRB 925 (1974). In Caribe Industrial and
Electrical Suppl Inc., 216 NI.RB 168 (1975), the Board panel including
Member Penello reached a similar result. There the voter marked a vertical
line in the "No" square and a complete "X" in the "Yes" square. The
Board, citing Meres College, found the marks cancelled each other and
therefore that the ballot failed to disclose the clear intent of the voter
237 NLRB No. 203
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly reveal the intent of the voter.6 We would adhere to
that decision.
We conclude that it is not clear here that the voter
was attempting to obliterate or erase the mark in the
"No" square as the marking is also susceptible to
being interpreted as emphasizing a "No" vote. Thus.
it is unduly speculative in these circumstances to in-
fer, as did the Regional Director, that the voter was
attempting to scratch over and thus obliterate the
marking in the "No" square. The Board traditionally
declines to engage in such speculation as to what
probably occurred in the voting booth and to do so
here would be unwarranted.
Our colleagues accuse us of, in effect, penalizing
the voter for marking his ballot with a pen, and point
6A comparison of the copy) of ballot here with the copy of the ballot
attached to the Duvall decision reveals that both contain X's in two squares
with one of the X's in one square scratched over with circular markings
to a case 7 wherein the Board found valid a ballot
containing an erasure of a pencil marking in one
square of the ballot. In doing so, they fail to under-
stand fully the distinction between cases involving
erasure and the situation herein. In the erasure case
the mark which had been erased would not constitute
a valid indication of choice under any circumstances
including the one where the other square or squares
remain unmarked. To the contrarry, in such a case a
mark made in another square unmistakably would
indicate the voter's choice. In cases like the instant
one, however, either of the designated squares, ab-
sent the marking in the other square, would be con-
sidered a clear indication of the intent of the voter.
We are therefore unwilling to speculate as to the
voter's choice by choosing between two valid desig-
nations.8
J L. P. Iending Co.. 218 NLRB 794 (1975).
We note that the voter here chould have avoided the confusion created
by his marking both choices by returning the unmarked ballot to the Board
Agent conducting the election and obtaining from said agent another ballot
as the clear instructions at the bottom of the ballot direct.
1272