Columbus Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1971

188 N.L.R.B. 825 (N.L.R.B. 1971)

COLUMBUS NURSING HOME, INC. 825
Columbus Nursing Home, Inc., and Local 505, Hotel,
Motel, Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO, Petitioner, and Building
Service and Maintenance Union Local 47, Service
Employees International Union , AFL-CIO, Peti-
tioner. Cases 9-RC-8625 and 9-RC-8628
March 4, 1971
DECISION AND DIRECTION OF RUNOFF
ELECTION
BY MEMBERS BROWN , JENKINS, AND KENNEDY
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on September 16, 1970, under the direction
and supervision of the Regional Director for Region
9, among the employees in the appropriate unit. At
the conclusion of the election, the parties were fur-
nished a tally of ballots which showed that, of approx-
imately 54 eligible voters, 42 cast ballots, of which 15
were for Building Service and Maintenance Union
Local 47, Service Employees International Union,
AFL-CIO; 6 were for Local Union 505, Hotel, Motel,
Restaurant Employees and Bartenders International
Union, AFL-CIO; and 21 were for neither. There
were no challenged ballots. One ballot was declared
void. The voided ballot is sufficient to affect the elec-
tion results . Thereafter, the Employer 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 October 23, 1970, issued and duly served
upon the parties his Report on Election, Objections to
Election, and Recommendations to the Board in
which he recommended that the Board overrule the
objection and that a runoff election be directed.
Thereafter, the Employer timely filed exceptions to
the Regional Director's report and a supporting brief,
and Petitioner Building Service and Maintenance Un-
ion Local 47 filed an answering brief.
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 powers
in connection with this case 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.
2. The Unions are labor organizations claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All employees employed by the Employer at its
1169 Bryden Road and 163 Woodland Avenue
locations, excluding all office clerical employees,
temporary and casual employees, registered
nurses, and all professional employees, watch-
men, guards, and supervisors as defined in the
Act.
5. The Board has considered the Regional
Director's report, the Employer's exceptions and sup-
porting brief, the answering brief of Petitioner Local
47, and the entire record in this case and finds no
merit in the Employer's exceptions.
The Employer objects to the voiding of one ballot.
The facts are not in dispute. The official ballots con-
tained on their face instructions that an "X" should
be marked in the square of the voter's choice. There
were three squares: one for Local 47, one for Local
505, and one for neither. The back of the ballot was
blank. The ballot in issue contained no markings on
its face. On the back of the ballot appeared the hand-
written word "Neither," together with a handwritten
"X". The Regional Director concluded that a ballot
marked in such a manner is void. We agree.
It is the policy of the Board to count irregularly
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 specula-
tive. Rather then 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?
As indicated, the face of the disputed ballot con-
tained the usual clear instructions to "mark an X in
the square of your choice." While the Board has coun-
ted ballots which were marked on their face in a man-
ner at some variance with these instructions, the
manner of voting in those instances substantially
complied with the instructions contained on the bal-
lot, and clearly revealed the intent of the voter .3 By
contrast, this voter disregarded the instructions com-
pletely. Why he did so, or whether he was even aware
of the instructions, or, indeed, of the choices set forth
on the face of the ballot, are matters known only to
him. If he did see the front of the ballot, he displayed
i N L.R.B v Whitinsville Spinning Ring Company, 199 F.2d 585 (C.A. 1).
2 Western Electric Company, Incorporate4 97 NLRB 933.
'See Gregg Moore Co, 178 NLRB No. 78; Knapp-Shernll Company, 171
NLRB No 171; Bridgeton Transit, 124 NLRB 1047; Garod Radio Corpora-
tion, 32 NLRB 1010
188 NLRB No. 131
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a remarkable indifference to the instructions and to
time-honored election procedures in general.
Moreover, to count such a ballot would impede the
efficient conduct and administration of Board-super-
vised elections and could lead to unfair results. Thus,
it is possible that some ballots containing no markings
on their face would be invalidated as blank ballots
without turning them over, while others are turned
over in a search for voter intent. If that happened, the
result of the election might depend solely on the for-
tuitous conduct of the Board agent in looking or not
looking at the back of the ballots. One remedy for
such a situation would be to require the Board agent
to turn over each and every ballot to inspect the back
for indications of voter intent. Such a requirement
would double the time required to count ballots and,
especially in elections involving a considerable num-
ber of employees, unnecessarily delay the outcome.
Likewise, inspection of the back of all ballots would
no doubt increase the number of challenges to ballots
where unusual marks appear on them. The investiga-
tion and determination of an increased number of
challenges would create another delay in the selection
of a collective-bargaining representative, -a delay
which is, in some part, eliminated by the Board's rule
that the backs of ballots are to be disregarded.
Finally, ballots cast in a manner at such variance
with the norm always create the possibility that the
voter intended to insure that one of the parties to the
election finds out how he voted. While a ballot such
as the one in this case does not patently disclose the
identity of the voter, it is possible that such a device
could be used by a party to the election to insure that
an employee votes in a particular prearranged man-
ner. A device which can so easily be used to destroy
the secrecy of representation elections and lend en-
couragement to fraud, bribery, or corruption cannot
be sanctioned by the Board.
While the Board always attempts 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 free representa-
tion elections, we fitid that the ballot in this case fails
to meet those requirements.4
Accordingly, as we have held that the ballot in issue
is void, we hereby overrule the Employer's objections.
Since the tally of ballots indicates that no choice has
received a majority of the valid votes cast, we hereby
remand this case to the Regional Director for a runoff
election between the two choices receiving the largest
and second largest number of votes.
DIRECTION OF RUNOFF ELECTION
It is hereby directed that the Regional Director for
Region 9 shall conduct a runoff election, at a time and
place to be determined by him, among the employees
of Columbus Nursing Home, Inc., employed during
the payroll period used in the prior election, in the
unit set forth in Section 12 of the Stipulation for Certi-
fication Upon Consent Election , to determine wheth-
er or not they desire to be represented for purposes of
collective bargaining by Building Service and Mainte-
nance Union Local 47, Service Employees Interna-
tional Union, AFL-CIO.
4 To the extent that this finding is in conflict with the decision of the U.S.
Court of Appeals for the Fifth Circuit in N.L.R B. v. Titche-Goettinger Com-
pany, 433 F.2d 1045 , we respectfully disagree and adhere to our view until
such time as the U.S. Supreme Court has passed on the matter.