Ebco Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 9, 1950

88 N.L.R.B. 983 (N.L.R.B. 1950)

In the Matter of EBCO MANUFACTURING COMPANY, EMPLOYER and
SHOPMEN'S LOCAL UNION No. 626, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL
Case No. 9-RC-593.-Decided March 9, 1950
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Pursuant to a Stipulation for Certification upon Consent Election
duly executed on October 20, 1949, by Ebco Manufacturing Company,
herein called the Company, and Shopmen's Local Union No. 626, In-
ternational Association of Bridge, Structural and Ornamental Iron
Workers, AFL, herein called the Union, an election by secret ballot was
held on November 9, 1949, in a unit of all the production and main-
tenance employees of the Company, at its Columbus, Ohio, plant, under
the direction and supervision of the Regional Director for the Ninth
Region.
Upon the conclusion of the election, a Tally of Ballots was furnished
the parties in accordance with the Rules and Regulations of the Board.
The tally showed that the votes were distributed as follows:
Approximate number of eligible voters------------------------ 99
Void ballots ------------------------------------------------ I
Votes cast for Shopmen 's Local Union, No. 626, International
Association of Bridge , Structural and Ornamental Iron Work-
ers, AFL ------------------------------------------------- 49
Votes cast against participating labor organization ------------ 48
- Valid votes counted ----------------------------------------- 97
Challenged ballots------------------------------------------- p
Valid votes counted plus challenged ballots------------------- 97
- On November 14, 1949, the Company filed objections to the conduct
of the election.
On December 14, 1949, the Regional Director, in his Report on Ob-
jections , issued the, following Revised Tally of Ballots :
Approximate number of eligible voters-------------------- 99
Void ballots---------------------------------------- ---- 0
88 NLRB No. 226.
983
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Votes cast for Shopmen's Local Union No. 626, International
Association of Bridge , Structural and Ornamental Iron
Workers, AFL----------------------------------------- 49
Votes cast against participating labor organization ---------- 48
Valid votes counted -------------------------------------- 97
Challenged ballots------------------ --------------------- 1
Valid votes counted plus challenged ballots---------------- 98
From the foregoing Revised Tally of Ballots, it appears that the
challenged ballot is sufficient to affect the result of the election.
The challenged ballot
During the counting of ballots, the Board agent in charge declared
to be void a ballot in which an "X" appeared in the "No" box. In-
scribed on this ballot was a capital letter "R" with a circle drawn
around it; this additional marking appeared outside the voting boxes
on the ballot. The Company asserted, and the Regional Director
found, that the ballot unambiguously expressed a "No" vote. The
Regional Director also found that the other mark did not identify the
voter and he therefore recommended that the ballot be counted.
The Union has excepted to the Regional Director's recommendation.
It does not contend that the ballot does not demonstrate how the voter
intended to cast his ballot. However, the Union asserts that it is
generally known that Ralph Kinkaid, one of the eligible voters, has
similarly marked ballots in other elections and that the marking
identifies the voter as Ralph Kinkaid. The Union asserts that the
ballot should not be counted.
The Board has held, in accordance with the general rule in political
elections, that distinguishing or identifying markings on ballots will
render such ballots void because inconsistent with the principle of a
secret election., To count such ballots "clearly would open the door
to the exertion of influences such as to prevent the exercise of the
voter's free choice." 2 In applying the rule of voiding ballots which
contain distinguishing markings, it is not necessary to establish the
identity of the voter who cast the disputed ballot.3 It is sufficient
that, upon an examination of the ballot, the marking in question ap-
pears to have been made deliberately, rather than accidentally or
i Burlington Mills Corporation, 56 NLRB 365 , 367, 368; Village of Richmond v. Algower,
95 Ohio St . 268, 116 N. E . 462, 463 ; Winn Y. Blackman, 229 Ill . 198, 82 N. E. 214, 221,
222; 18 Am. Jur., Election §§ 196-199.
2 Burlington Mills Corporation , supra.
3 Estee Bedding Company, 73 NLRB 825, 830 , is overruled to the extent that it is incon-
sistent with this decision.
EBCO MANUFACTURING COMPANY 985
inadvertently, and that it may serve to reveal the identity of the voter.'
We find that the encircled "R" on the disputed ballot in the present
case is a distinguishing mark within the meaning set forth above,
and that the ballot is therefore void and shall not be counted."
As the Tally of Ballots shows that the Union has secured a ma-
jority of the valid votes cast in the election, we shall certify the Union
as the representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
It is hereby certified that the Shopmen's Local Union No. 626,
International Association of Bridge, Structural and Ornamental Iron
Workers, AFL, has been designated and selected by a majority of
the Company's production and maintenance employees at its Colum-
bus, Ohio, plant, excluding office and clerical employees, guards, pro-
fessional employees, and all supervisors as defined in the Act, as their
representative for the purposes of collective bargaining and that
pursuant to Section 9 (a) of the Act, the aforesaid labor organization
is the exclusive representative of all such employees for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
4 Smiley v. Armstrong, 66 S. D. 31, 278 N. W. 21, 23; Nicely v. Wildey, 210 Ind. 640,
5 N. E. 2d 111 ; Barlick v.. Kunz, 375 111. 318, 31 N. E. 2d 283, 285-286; 18 Am. JUri8.,
Elections § 197. In Winn v. Blackman, supra, the Supreme Court of Illinois stated:
Ballot 164 was rejected by the court because it had a distinguishing mark upon
it. The mark upon this ballot is a small letter "t" near the bottom of the ballot
and to the right of center. The letter bears evidence of having been made carefully
and is placed near an ink blot. A careful examination of this mark leads us to
conclude that it might easily be a distinguishing mark. While it is not at all clear
to our minds that it was so intended , still we are inclined to agree with the court
below that the ballot was properly rejected.
The issue in this case differs from that in Van Raalte Company, 49 NLRB 985, and
Carol Radio Corporation , 32 NLRB 1010, where the Board dealt with the question of
determining for whom the voter intended to vote. Here, we are not confronted with that
question , but rather, as in the Burlington Mills case , with the question of safeguarding
the secrecy of the ballot.