Daimler-Chrysler Corp.

National Labor Relations Board - Board Decisions

Apr 18, 2003

338 N.L.R.B. 982 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982
Daimler-Chrysler Corporation and International Un-
ion, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO, Petitioner. Case 7–RC–22246
April 18, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND ACOSTA
An election was conducted pursuant to a Stipulated
Election Agreement on June 19, 2002. The tally of bal-
lots shows 18 for and 17 against the Petitioner, with no
challenged ballots. One of these ballots contains an “X”
in the “YES” square, but also includes a handwritten
question mark (?) immediately adjacent to the “YES”
square. (A copy of the ballot is attached as an appendix.)
The Regional Director counted this ballot as a valid
“YES” vote in favor of the Petitioner. In reaching this
conclusion, the Regional Director noted that there are no
markings in or near the “NO” square. The Regional Di-
rector found the question mark insufficient to negate the
fact that the voter expressed a clear intent to vote “YES”
by marking an “X” in the “YES” square. The Employer
disputes this conclusion, contending that Board law
states that if speculation is required to ascertain voter
intent, the ballot is to be voided.
The National Labor Relations Board has considered
the Employer’s objection and the Regional Director’s
report and recommended disposition. Based on the facts
presented, we agree with the Regional Director’s conclu-
sion.1
I.
The Board’s primary goal, in a representation election,
is to protect the right of individual employees to choose
whether or not to be represented by a union. General
Shoe Corp., 77 NLRB 124, 127 (1948), enfd. 192 F.2d
504 (6th Cir. 1951), cert. denied 343 U.S. 904 (1952).
Congress has entrusted the Board with a wide degree of
discretion to establish the procedures and safeguards
necessary to ensure this fair and free choice by employ-
ees. NLRB v. A.J. Tower Co., 329 U.S. 324, 330–331
(1946).
To effectuate this goal, the Board has developed prin-
ciples that guide our decisions in cases concerning ir-
regularly marked ballots. We adhere to these principles
in reaching our decision today.

1 In view of our disposition of the Employer’s objection, there is no
need to pass on the Petitioner’s conditional exception.
First, we assume that by casting a ballot, a voter
evinces an intent to participate in the election process and
to register a preference. Horton Automatics, 286 NLRB
1413 fn. 3 (1987) (“[W]e note that the voter who cast the
challenged ballot in issue did more than merely appear at
or enter the [polls]; the voter also cast a marked bal-
lot.”);2 Harry Lunstead Designs, 265 NLRB 799, 800
(1983), quoting Gregg Moore, Inc., 178 NLRB 483, 484
(1969) (“By appearing at the polls, and by casting a
marked ballot, it appears that the voter did wish to regis-
ter his preference.”).
Second, we believe that this preference must be given
effect whenever possible. Hydro Conduit Corp., 260
NLRB 1352, 1352 (1982) (referring to the Board’s
“longstanding policy of attempting to give effect to voter
intent whenever possible”); Thiele Industries, 325 NLRB
1122, 1124 (1998); Brooks Bros., Inc., 316 NLRB 176,
176 (1995). When we have strayed from this belief,
courts of appeals have been quick to disagree with our
decisions. For many years, for example, the Board did
not give effect to voter markings made on the back of a
ballot, on the ground that the meaning of such markings
must be speculative. Typical of these now-overruled
cases is Columbus Nursing Home, 188 NLRB 825
(1971). There, the ballot had three squares on the
front—one for Local 47, one for Local 505, and one for
neither. The voter did not place any markings on the
front of the ballot, but on the back the voter handwrote
an “X” along with the word “neither.” The Board did not
count that ballot on the ground that “any conclusions
drawn about the voter’s intent based on markings on the
back of the ballot must be almost entirely speculative.”
Id. Facing disagreement from several courts of appeals,3
the Board in Hydro Conduit Corp., supra, overruled the
Columbus Nursing Home doctrine, observing that a re-
fusal to consider voter intent when marked on the back of
the ballot ran contrary to our longstanding policy of ef-
fectuating voter intent whenever possible. Hydro Con-
duit, 260 NLRB 1352.
2 Although the resolution of the ballot in Horton Automatics, supra,
resulted in a 3–2 decision of the Board (Chairman Dotson and Mem-
bers Stephens and Cracraft, voting to count the ballot, Members
Johansen and Babson, dissenting) (see fn. 4 below), Member Babson
agreed in his dissent with the principle stated above in the text.
3 NLRB v. Manhattan Corp., 620 F.2d 53 (5th Cir. 1980); Roberts
Door & Window Co. v. NLRB, 540 F.2d 350 (8th Cir. 1976); Mycalex
v. NLRB, 481 F.2d 1044 (2d Cir. 1973); NLRB v. Tobacco Processors,
Inc., 456 F.2d 248 (4th Cir. 1972); and NLRB v. Titche-Goettinger Co.,
433 F.2d 1045 (5th Cir. 1970).
338 NLRB No. 148
DAIMLER-CHRYSLER CORP. 983
Third, we avoid speculation or inference regarding the
meaning of atypical “X”s, stray marks, or physical altera-
tions. See, e.g., Kaufman’s Bakery, 264 NLRB 225
(1982). Despite the importance of giving effect to voter
intent, it is not the Board’s role to glean voter intent from
ambiguous or contradictory markings on a ballot. We
thus speculate neither to divine the intent of a ballot that
is not clear, nor to negate the intent of a ballot that is
otherwise clear.
Applying these principles, we have held a ballot must
be voided where a voter has not registered a mark in ei-
ther a “YES” or a “NO” square, or has not otherwise
made his or her preference clear. In these cases, the
Board cannot determine the clear intent of the voter
without engaging in speculation. It is thus not possible
to give effect to the voter’s preference.4
The same rule applies when a voter has marked both
squares, and neither an erasure or attempted obliteration
of the second marking nor other markings on the ballot
makes clear the voter’s preference. Again, in these
cases, we do not speculate as to which mark best repre-
sents the voter’s intent and are thus unable to count the
ballot.5
II.
The ballot in this case presents a different situation.
Here, by casting a ballot the voter evinced an intent to
register a preference, and in fact, did register that prefer-
ence by placing an “X” in the “YES” square. The ques-

4 In some cases, the voter expresses a clear preference even without
registering a mark in either the “YES” or “NO” square. See, e.g., Hor-
ton Automatics, 286 NLRB 1413 (1987) (the letters “NON” extending
across the “YES” and “NO” squares indicate an intent to vote against
the union); Harry Lunstead Designs, 265 NLRB 799 (1983) (the word
“NO” written in both the “YES” and “NO” squares indicates an intent
to vote against the union); Hydro Conduit Corp., 260 NLRB 1352
(1982) (the word “si” written on the back of the ballot indicates an
intent to be represented by the union). In other cases, the employee’s
intent cannot be ascertained without undue speculation.
5 So-called dual-marked ballots often present difficult decisions.
Compare, Osram Sylvania, Inc., 325 NLRB 758 (1998) (a ballot
marked with seven “X”s in the “NO” area and a diagonal line, possibly
smudged, in the “NO” area, should be counted as a “NO” vote) with
Bishop Mugavero Center for Geriatric Care, 322 NLRB 209 (1996) (a
ballot marked with an “X” in the “NO” square and a diagonal line in
the “YES” square is void). Compare Brooks Bros., Inc., 316 NLRB
176 (1995) (where a voter clearly obliterated the “X” in the “YES”
square by scratching over it with additional pencil markings, leaving an
unmistakable “X” in the “NO” square, the ballot clearly expresses the
voter’s intent to cast a vote against the union), with Mercy College, 212
NLRB 925 (1974) (where a ballot is marked with an “X” in the “NO”
square, which has been heavily shaded over, and an “X” in the “YES”
square, voter’s attempted obliteration is not sufficient to express clearly
the intent of the voter).
tion presented is whether the question mark outside the
square should negate this clear expression of preference.6
Our colleagues in dissent contend that the question
mark on the ballot raises a reasonable doubt as to the
voter’s preference, and thus that the ballot should be
voided. This conclusion is based on the inference that
the voter, by placing a question mark next to the “YES”
square, meant to indicate uncertainty regarding his or her
vote.
The difficulty with our colleagues’ conclusion is that it
is necessarily based on speculation as to the voter’s in-
tent in adding the question mark. We cannot be certain
what meaning—if any at all—the voter may have in-
tended to convey by placing the question mark. The
question mark could mean many things. And even if we
infer that the question mark was meant to indicate uncer-
tainty about the voter’s choice, we cannot be certain just
how uncertain the voter was.
What we know, without speculation, is this: The
printed instructions on the ballot state: “Mark an ‘X’ in
the square of your choice.” The voter marked the “YES”
square with an “X” precisely in line with these instruc-
tions. The voter did not erase or obliterate the “X” in the
“YES” square. Nor did the voter spoil the ballot and
then ask the Board agent for a new ballot, an opportunity
that the instructions gave him. Instead, the voter chose to
cast this ballot as an expression of this preference, and
did not leave the polling place without casting a ballot at
all. While it is certainly possible that the question mark
signifies that the voter had doubts regarding the wisdom
of his or her choice, as some voters presumably do, that
possibility is not sufficient for the Board to trump what is
otherwise a clear expression of voter intent.7 Put some-
what differently, even if the voter had ambiguous feel-
ings about his or her choice, the choice itself is not am-
biguous.
6 The Board could, of course, apply a different rule of decision to
these cases, concluding that to further efficient conduct and administra-
tion of Board-supervised elections, any deviation from prescribed in-
structions negates the ballot. See, e.g., Hydro Conduit Corp., 260
NLRB at 1353 (“I am persuaded that any ballot that is not properly
marked according to the instructions provided . . . should be invali-
dated) (Member Fanning, concurring and dissenting); Columbus Nurs-
ing Home, 188 NLRB at 826 (“Moreover, to count such a ballot would
impede the efficient conduct and administration of Board-supervised
elections.”). This approach, however, is not current Board law.
7 The cases on which our colleagues rely do not require a contrary
result. Unlike the case at hand, Bishop Mugavero and Mercy College,
supra at fn. 5, are cases where the voter marked both squares. Voter
intent in those cases could not be discerned without the Board engaging
in speculation to resolve the doubt. That is not the case here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984
Whatever reason the voter may have had for placing
the question mark, the voter deliberately decided to ex-
press a preference by placing an “X” in the “YES”
square and, absent a clear negation of this preference, the
Board should honor that expression.8
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO and that it is the exclusive
collective-bargaining representative of the voters in the
following appropriate unit:

All full-time and regular part-time service engineers
employed by the Employer in department 3237 at its
Featherstone Road Engineering Center, 2301 Feather-
stone Road, Auburn Hills, Michigan; but excluding of-
fice clerical employees, guards and supervisors as de-
fined in the Act, and all other employees.

CHAIRMAN BATTISTA and MEMBER SCHAUMBER, dissent-
ing.
During an election, a voter cast a ballot which con-
tained an “X” in the “YES” box, but also included a
handwritten question mark (?) immediately next to the
“YES” box. The issue presented is whether the ballot
evidences a clear expression of voter intent to vote for
the Petitioner. Contrary to our colleagues, we find that it
does not.
The test of whether a ballot is to be counted or not is
whether the ballot, considered as a whole, clearly ex-
presses the voter’s intent. If the ballot “clearly expresses
the voter’s intent,” it is to be counted.1 If there is doubt
as to the voter’s intent, the ballot is not to be counted.2
Indeed, our colleagues appear to agree with this test.
As they state: “We thus speculate neither to divine the
intent of a ballot that is not clear nor to negate the intent
of a ballot that is otherwise clear.”
There are strong policy considerations to support this
rule. The decision of employees to select or reject a bar-
gaining representative is an immensely important deci-
sion for the employees, employer, and the union. The

8 We observe that neither party in this case has alleged that the ques-
tion mark is an identifying mark or violates ballot secrecy. Identifying
marks provide an exception to the general rule of giving effect to voter
intent. A ballot that clearly expresses voter preference will still be
rejected if the mark identifies the voter. See A.G. Parrott Co., 237
NLRB 191 (1978), enfd. denied on other grounds 630 F.2d 212 (4th
Cir. 1980); Standard-Coosa-Thatcher Co., 115 NLRB 1790 (1956).
1 Citing Brooks Bros., Inc., 316 NLRB 176 (1995). See also Osram
Sylvania, Inc., 325 NLRB 758 (1998); Columbus Nursing Home, 188
NLRB 825 (1971); Kaufman’s Bakery, 264 NLRB 225 (1982).
2 Bishop Mugavero Center for Geriatric Care, 322 NLRB 209
(1996); Mercy College, 212 NLRB 925 (1975).
ultimate decision should not be left to Board Member
speculation as to a voter’s intention. That is, the Board
should not be placed in the position of deciding whether
the union is selected or not. Rather, as the cases hold,
the ultimate decision should rest on the clear expression
of the voter.
Applying the rule to the instant case, we conclude that
there is a reasonable doubt as to the voter’s intent. The
voter placed a question mark next to the marked box. A
question mark is the very symbol that our language uses
to express uncertainty. In the instant case, we may
speculate about the basis for the voter’s uncertainty. But
there can be little doubt as to the uncertainty of the ballot
itself.
In addition to the uncertainty that is inherent in the
question mark itself, there is an additional uncertainty as
well. It could be that the voter made a clear choice, but
was uncertain about the wisdom of that choice. Or, it
could be that the voter never made a clear choice. If it
were the former, we would count the ballot. That is, if it
were clear that the voter intended a “YES” vote, and the
question mark simply indicated his misgivings about that
vote (i.e., a “soft yes”), the ballot should be counted.
However, if it were the latter, i.e., if the voter did not
intend a clear choice, the ballot should not be counted.
In the instant case, it is far from clear what the question
mark means. As our colleagues say: “The question
mark could mean many things.” And that is precisely the
point. We are left with uncertainty as to what the voter
intended.
Our colleagues say that we have improperly drawn the
inference of uncertainty. However, it is our colleagues,
not us, who have drawn an inference. They infer that the
voter simply intended a “YES” vote. In doing so, they
have ignored the question mark on the ballot. By con-
trast, we do not draw any inference. That is, we are sim-
ply puzzled by the ballot. Phrased differently, we have a
doubt as to the voter’s intent.
Our colleagues also state that an employee who casts a
marked ballot is presumed to register a preference. They
further state that a preference is to be given effect when
ever possible. We have no quarrel with either proposi-
tion. However, these propositions simply beg the ques-
tion. The question in this case is ascertaining what the
voter’s preference was. Since, as discussed above, if that
preference is unclear, it cannot be given effect.
In sum, there is reasonable doubt here as to the voter’s
intent. The law is that if there is a reasonable doubt as to
the voter’s intent, the ballot is not to be counted. For in
DAIMLER-CHRYSLER CORP. 985
that situation, we simply do not know the voter’s clear
intent. Since that is the situation here, the ballot is void.3

3 As a practical matter, this result is not a harsh one. A new election
can be held in about 3 months, i.e., in June 19 of this year. By contrast,
under our colleagues’ view, the counting of the ambiguous ballot gives

rise to the seating of the Union for a least 1 year, followed by strict
rules for withdrawing recognition (under current law—see Levitz Fur-
niture Co. of the Pacific, 333 NLRB 717 (2001), and (quite possibly) a
contract bar of 3 years.

APPENDIX