General Photo Products Division of Anken Industries

National Labor Relations Board - Board Decisions

Jun 22, 1979

242 N.L.R.B. 1371 (N.L.R.B. 1979)

(;ENERAI PHO(TO PROI)MUCTS )IVISION OF ANKEN INDUSTRIES
General Photo Products Division of Anken Industries
and International Union of Electrical, Radio & Ma-
chine Workers, AFL-CIO-CLC, Petitioner. Case
I RC 15953
June 22, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MMHBERSS JENKINS. MURPHY, ANI) TRUEtSI)AIE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered the objections and de-
terminative challenge in an election' held on Novem-
ber 16 and 17, 1978,2 and the Regional Director's re-
port recommending disposition of the same. The
Board has reviewed the record in light of the excep-
tions and briefs and hereby overrules the Regional
Director's recommendations insofar as they relate to
the disposition of the challenged ballot.'
The facts regarding the circumstances in which the
challenge occurred are essentially undisputed and are
as follows: The election was conducted over a period
of 2 days, the first session on November 16 from
10:30 to 11:30 p.m. and the second on November 17
from 9:30 to II a.m. On November 16, Jacks at-
tempted to enter the polling place early but was told
by the Board agent conducting the election to leave
until the polls opened. At 10:30 p.m. Jacks was the
first voter to appear. After he identified himself he
was given a ballot by the Board agent and was told to
go to the voting booth to mark his ballot. Instead of
proceeding to the booth, however. Jacks went to a
nearby table and in plain view began to mark the
"No" box on the ballot. Upon noticing this conduct,
the Board agent directed Jacks to go to the voting
booth to mark his ballot. Jacks refused whereupon
the Board agent repeated the direction. Once again
Jacks refused. He finished marking his ballot, went
over to the line of waiting voters, and, ignoring the
Board agent's directions, held his ballot open facing
the voters, and said, "This is a 'no' vote against the
Union." At this point the Board agent took Jack's
ballot away from him, informed Jacks that he could
not engage in such conduct, and declared that his
ballot was void. The Board agent then told Jacks that
his conduct would not be tolerated and asked that he
leave the voting area. Jacks refused to leave until the
The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 40 votes for, and 39 against. the
Petitioner; there was I challenged ballot
2All dates herein are in 1978, unless otherwise indicated
In view of our disposition of the determinative challenged ballot, we find
it unnecessary to pass on the Petitioner's objections.
Board agent threatened to call the authorities and
have him removed. The Board agent then placed
Jack's ballot in a sealed envelope which was not
opened then or later.
On November 17. Jacks again presented himself to
vote and voted in an orderly manner in accordance
with Board procedure. At this point the Petitioner
challenged his ballot on the ground that he had voted
twice. The Regional Director. noting that Jacks' No-
vember 16 ballot was never commingled or counted
with the other ballots, found that that ballot was
therefore not cast. Consequently. the Regional Direc-
tor concluded that, when Jacks appeared to ote on
November 17, he was an eligible voter who had not
yet cast a ballot and that the challenge to his ballot
should be overruled. We disagree.
It is well established that where a voter places an
identifying mark on his ballot the ballot is declared
void4 and the voter is not afforded an opportunity to
vote again. We find that an analogy may be drawn
between that situation and the one presented here,
and that the marked-ballot cases, therefore, are appli-
cable and controlling.
The basis for the Board's policy in the identifying-
mark cases is that a ballot which is intentionally
marked in such a manner as to reveal the identity of
the voter destroys the secrecy of the ballot and there-
fore is invalid. This policy of secrecy is regarded as a
matter of public concern rather than a personal privi-
lege subject to waiver by the individual voter,' and.
thus, the secrecy of the ballot is viewed as outweigh-
ing the voter's intent. Therefore, the voter's motiva-
tion is not considered and, hence, even in situations
where the mark may have been placed innocently, the
ballot is voided and the voter is effectively disenfran-
chised.
While the cases expounding the policy consider-
ations behind the requirement of secrecy have been
limited essentially to situations where identifying
marks have been placed on the ballot itself, the same
considerations apply with equal. if not greater. force
where the violation of secrecy was purposeful and fla-
grant.' There is no question but that Jacks under-
See, e.g.. Eh, 5Afanui/ucurng ('ompainr, 88 NLRB 983 (1950). George K
Garrettii (ompaun, Inc, 120 NLRB 484 1958): J Brenner & Sons. Inc. 154
NLRB 656 1965).
J. Brenner & Sons. Inc. upra
* In concluding otherwise, the Regional Director relied on Dco,. Inc. 116
NLRB 990 (1956), which he interpreted toi stand for the proposition that the
Board is empowered to remedy a situation In which the secrect of a oter's
ballot is impaired b confiscating and destroying the impaired ballit and
issuing another ballot on the spot. In Deeco. the employer's ohserxer chal-
lenged the hallots of tiswo oters ho were in the booth together for I or 2
seconds. The Board agent destroed the balhot of the ne who had alreads
voted and permitted him to cast a new ballot In these circumstances we find
Deeco inapposite tir n that case unlihke the instant one. the Board agent was
able to take immediate action to insure the secrecy of the ballot and there
was no indication hat secrec as not in fact adequatel safeguarded. ere,
howeser, the secrecs of the ballot as destroyed
242 NLRB No. 197
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stood the proper voting procedures. Nevertheless, he
knowingly violated these procedures in order to show
his choice on the ballot to employees waiting to vote.
In these circumstances, we find that Jacks exercised
his right to vote the first day of the election, but that
his subsequent action in showing his marked ballot to
other voters, thus violating the secrecy of his vote,
voided his ballot.7 As a result, he forfeited any right
to have his ballot counted or to be given another op-
portunity to cast a ballot.8 Accordingly, we sustain
the challenge to his second ballot.
As the revised tally shows that a majority of valid
ballots have been cast for the Petitioner, we shall cer-
7Of course, in the marked-ballot cases it is not until the ballot box is
opened that a Board agent becomes aware that the ballot contains an iden-
tifying mark. Here, Jacks' conduct made known his choice before he could
deposit the ballot in the ballot box. This factual difference is not significant.
In either situation the voter's own conduct rendered his ballot void.
8The Regional Director would find that the Board agent's "direct and
forceful actions" with respect to Jacks' conduct emphasized to other voters
the importance of the secrecy of the ballot. 'he precaution of the Board
agent does not mean, however, that Jacks' ballot was not cast. To hold
otherwise and to let Jacks take advantage of his own misconduct and give
him another opportunity to vote would elevate form over substance and
defeat the principle of the secret election required by the Act.
tify the Petitioner as the exclusive bargaining repre-
sentative of the Employer's employees in the appro-
priate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Union of
Electrical, Radio & Machine Workers, AFL-CIO-
CLC, and that, pursuant to Section 9(a) of the Na-
tional Labor Relations Act, as amended, the said la-
bor organization is the exclusive representative of all
employees in the following appropriate unit for the
purpose of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions
of employment:
All production and maintenance employees em-
ployed by the Employer at its Williamstown,
Massachusetts location, including testers, but ex-
cluding chemists, research technicians, profes-
sional employees, plant and office clerical em-
ployees, area supervisors, guards, and all other
supervisors as defined in the Act.
1372