Duvall Transfer and Delivery Service

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 843 (N.L.R.B. 1977)

DUVALL TRANSFER AND DELIVERY SERVICE
Duvall Transfer and Delivery Service and Teamsters
Local Union 1196, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.'
Case 26-RC-5455
September 30, 1977
DECISION ON REVIEW AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN FANNING AND MEMBER JENKINS
AND MURPHY
On May 23, 1977, the Regional Director for Region
26 issued his Supplemental Decision, Order and
Direction of Runoff Election in which he overruled
the Employer's objections to conduct affecting the
results of the election and the challenge to a
determinative ballot cast in an election held on April
15, 1977.2 Thereafter, pursuant to the National
Labor Relations Board's Rules and Regulations, the
Employer filed a timely request for review of the
Regional Director's supplemental decision on the
ground that the Regional Director erred in counting
the challenged ballot as a "yes" vote for the
Teamsters.
By telegraphic order dated June 15, 1977, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review. 3
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.
The Board has considered the entire record in this
case with respect to issues under review and makes
the following findings:
The Employer's Objection 1 related to the action of
the Board agent in counting as a vote for the
Teamsters a ballot marked with an "X" in the square
for the Teamsters and also an "X" in the "Neither"
square which had been scratched over with circular
markings. The Employer challenged the Board
agent's ruling and the ballot was treated as a
challenged ballot.
I Brotherhood of Railway, Airline and Steamship Clerks, Freight
Handlers, Express and Station Employees, AFL-CIO. intervened at the
hearing.
2 The corrected revised tally of ballots showed that, of approximately 34
eligible voters. 12 eligible voters cast ballots for Petitioner, none cast ballots
for Intervenor, and 13 cast ballots against the participating labor
organizations; there was I undetermined challenged ballot sufficient to
affect the results of the election.
3 The Employer did not request review of the Regional Director's
findings with respect to its Objections 2 and 3; therefore, we adopt proforma
the Regional Director's recommendation that they be overruled.
232 NLRB No. 133
The Regional Director, in finding that the ballot
was a valid "yes" vote for the Teamsters, concluded
that "the voter, after marking an X in the 'Neither'
box in ink, decided to change his vote and, in lieu of
attempting to erase the ink markings, scratched over
the mark in the 'Neither' box and clearly marked the
ballot in the Teamsters 11% box." Therefore, he
overruled the challenge to the ballot and the
Employer's objections relating thereto and directed a
runoff election.
In disputing the Regional Director's findings, the
Employer asserts, inter alia, that the ballot should be
determined to be void because the voter placed
markings in two different squares, either of which
would have been considered to be valid indications
of the voter's intent but for the marking placed in the
other square.
We agree with the Employer that the ballot in
dispute should be declared void as it does not
disclose the intent of the voter with the requisite
degree of certainty.4 As we stated in Mercy College,
212 NLRB 925 (1974):
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 manner, the
true intent of the voter cannot, in our judgment,
be ascertained with the required degree of
certainty.5
After careful consideration of the challenged ballot,
we conclude that it is not clear that the voter was
attempting to obliterate or erase the mark in the
"Neither" square as the marking is also susceptible to
being interpreted as emphasizing a "Neither" vote.
In our view, therefore, it would be unduly speculative
in these circumstances to infer, as did the Regional
Director, that the voter was attempting to scratch
over the marking in the "Neither" 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. 6 Accordingly,
4 We agree with the Regional Director that the Employer's contentions
based on the affidavit of an employee who claims to have cast this ballot are
without merit as there is no way to verify the name of the employee who cast
a ballot in an election.
5 See also Caribe Industrial and Electrical Suppl¥, Inc.. 216 NLRB 168
(1975).
6 We find that our decision in J.LP. Vending Co., Inc., 218 NLRB 794
(1975), is distinguishable on the facts. In that case, as in the court cases cited
therein, it was readily apparent that there was an attempted erasure of one
of the markings and it was unnecessary to resort to speculation to determine
the voter's intent. whereas in the instant case there is no erasure and either
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find the disputed ballot to be void as it does not
clearly reveal the intent of the voter and, as a runoff
election is uncalled for, we shall issue an appropriate
certification.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for any labor organization
appearing on the ballot, and that no such organiza-
tion is the exclusive representative of all the
employees, in the unit herein involved, within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
CHAIRMAN FANNING, dissenting:
I would affirm the Regional Director's finding that
the challenged ballot in question was a valid ballot
cast in favor of the Petitioner.7 The Regional
Director's conclusion is not based on speculation but
is the only reasonable conclusion to be drawn. Where
of the markings could be considered a sufficient expression of' intent. We
would agree with our dissenting colleague if the facts were as he describes
them. But, to the contrary, the markings on the ballot fail to show the voter's
intent.
a voter has scratched over the "Neither" box and
placed a clear "X" in favor of the Petitioner, his
intention to vote in. favor of the Petitioner is
manifested with sufficient certainty. Thus, this case,
in my judgment, is the same as J.L.P. Vending Co.,
Inc., 218 NLRB 794 (1975), where an "attempt at
erasure" in the "No" box and an "X" in the "Yes"
box were held to make clear the choice intended by
the voter. Here, the circular scratches in the
"Neither" box are the equivalent of an "attempt at
erasure." Obviously, a voter who uses ink cannot
successfully erase a mistake but must scratch it out.
To emphasize here, as do my colleagues, the lack of
any erasure is hardly relevant to determining the
validity of a ballot cast in ink and needlessly
penalizes a voter who expresses his intention in a
reasonable and certain manner.
Having examined the ballot in question which is
part of the record herein, I would find that the ballot
clearly indicates the voter's intention to vote for the
Petitioner and is therefore a valid ballot.
7 See Exh. A attached as an appendix.
APPENDIX
YXtIiIT A
UNITED STATES OF AMERICA
National Labor Relations Board
FOR CERTAIN EMPLOYEES OF
This tballot is to determine the collective bargaining representative, if any,
for the unit In which you are employed.
MARK AN "X" IN TlE : OUARE OF YOUR CHOI'CE
T4.AI/TLTS LOCAL LNION 1196,
AI AFFILIATL. O T.
INTERNATIONAL DOTi1t1iSOOD1)
OF TLAMSTES, CHiAUFFIURIS,
WARit;llOUSLHt AND ttH.LPES OF
AL .&ICA
N1BITtIER BIOTtiERHIOOD OF RAILWAY,
AIRLINE AND ST.ASHtIP
CLt./YS, FREIGIT HANDLERS,
EXPRESS AND STATION
iMPLOYEES, AFL-CIO
-7s
DO N1OT SIGN THIS BALLOT. Fold and drop in b3llot box.
if vo, slpcil this DallaII e:turn it to the Board Agent for a new one.
844