Caribe Industrial and Electrical Supply, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1975

216 N.L.R.B. 168 (N.L.R.B. 1975)

168 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD
Caribe Industrial and Electrical Supply, Inc. and
Union Insular de Trabajadores Industriales y
Construcciones Electricas , Inc. (UMCE), Peti-
tioner. Case 24-RC-5424
January 15, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on August 12, 1974, under the direction
and supervision of the Regional Director for Region
24, among the employees in the stipulated unit. At
the conclusion of the election, the parties were
furnished a tally of ballots which showed that, of
approximately 33 eligible voters, 31 cast ballots, of
which 15 were cast for, and 15 against, the Petitioner.
There were no challenged ballots. One ballot was
declared void. The voided ballot is sufficient to affect
the election results. Thereafter, the Petitioner filed a
timely objection to the conduct of the election.
In accordance with the National Labor Relations
Board Rules and Regulations , Series 8, as amended,
the Regional Director conducted an investigation
and, on August 21, 1974, issued and duly served on
the parties his Report and Recommendation on
Objections in which he recommended that the Board
sustain the objection and that the Petitioner be
certified. Thereafter the Employer timely filed
exceptions I combined with a brief to the Regional
Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
r In In 3 of his report , the Regional Director, in apprising the parties of
their rights to appeal his findings , conclusions, and recommendations to the
Board , erroneously referred the parties to the procedures set forth in Sec.
102.67 of the Board 's Rules and Regulations . Thereafter the Employer filed
with the Board a document designated as a Petition for Review. In the
circumstances we accept this document as exceptions to the Regional
Director's report , pursuant to Sec 102 .69 of the Board's Rules and
Regulations , noting that the document fully complies with the number,
timeliness , legibility , service , and statement of service requirements of said
section Moreover, inasmuch as the provisions of Sec . 102.67 substantially
restrict the grounds upon which an appeal may be made , unlike the
provisions of Sec 102 .69, we have carefully examined the document filed by
the Employer in light of the entire record in order to determine whether or
not the Employer , having been erroneously referred to the procedures of
2. Petitioner is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees of the Employer at its places of
business located at Hato Rey P.R., and at La
Muda, Guaynabo, Puerto Rico, including ware-
house employees, drivers and their helpers, inside
salesmen, shipping and receiving clerks, but
excluding all office clerical employees, guards and
supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Employer's exceptions 2 combined
with a brief, and the entire record in this case and
makes the following findings:
The Petitioner's objection related to the action of
the Board agent in ruling void, during the tabulation
of the ballots at the conclusion of the balloting, a
ballot described in the Regional Director's report
substantially as follows: the voter marked a vertical
line in the "No" square and marked a complete "X"
in the "Yes" square. The Regional Director conclud-
ed that the voter's intent is clearly reflected in the
distinct "X" in the "Yes" square, and recommended
that the ballot be ruled a valid "Yes" vote.
In its exceptions the Employer contends that the
ballot in dispute was properly declared void by the
Board agent . The Employer urges in effect that the
vertical line in the "No" square constitutes a
conflicting mark, which cancels the effect of the clear
"X" in the "Yes" square, and that a ballot so marked
fails to disclose the clear intent of the voter. We find
the thrust of the Employer's contentions to be
meritorious. In our view the recent holding in the
Mercy College3 case is dispositive of the issue
presented here. As we observed there:
Sec. 102 .67, has conceivably been prejudiced thereby . We note that the facts
in the instant case were not in dispute , and accordingly , as conceded by the
Employer, the result here turns on the application of said facts of the
appropriate legal principles . We are satisfied that the document filed by the
Employer fully sets forth the legal principles relied on by the Employer and
urged upon us. Accordingly , we find that the Employer has not been
prejudiced by having been erroneously referred to Sec . 102.67 of the Board's
Rules and Regulations.
2 In light of our determination herein that the disputed ballot is void, as
contended by the Employer, we find it unnecessary to reach a determrna-
tion with respect to the Employer's contention in the alternative to the effect
that at the very least the election herein should be set aside.
3 212 NLRB 925 (1974).
216 NLRB No. 33
CARIBE INDUSTRIAL &
In finding a ballot to be valid the Board
requires that the intent of the voters 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 manner, the
true intent of the votes cannot in our judgment,
be ascertained with the required degree of
certainty.4
4 Id We find Gifford-Hill & Co., Inc., 181 NLRB 729 (1970), cited by the
Regional Director, distinguishable on its facts as there was no attempted
erasure or other attempt to obliterate one of the conflicting marks. To the
ELECTRICAL SUPPLY 169
Accordingly, we find the ballot in dispute here to be
void.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Union Insular de
Trabajadores Industriales y Construcciones Electri-
cal, Inc. (UITICE), and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
extent Belmont Smelting A Refining Works, Inc., 115 NLRB 1481 (1956),
also cited by the Regional Director is inconsistent herewith , we decline to
follow it.