Horton Automatics

National Labor Relations Board - Board Decisions

Dec 7, 1987

286 N.L.R.B. 1413 (N.L.R.B. 1987)

HORTON AUTOMATICS 1413
Horton Automatics and International Union of Elec-
tronics , Electrical, Technical , Salaried and Ma-
chine Workers, AFL-CIO, District 11, Petition-
ers Case 23-RC-5318
7 December 1987
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS, CRACRAFT, TOHANSEN, AND
BABSON
The National Labor Relations Board has consid-
ered challenges to an election held on 12 Decem-
ber 1986 and the Regional Director's report recom-
mending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 43 for and 42
against the Petitioner, 1 void ballot, and 10 chal-
lenged ballots, a number sufficient to affect the re-
sults of the election.
The Board has reviewed the record in light of
the exceptions and briefs and adopts the Regional
Director's findings and recommendations only to
the extent consistent with this decision.
1. During the ballot count, the Board agent
voided two ballots. The Board agent's ruling con-
cerning one of these ballots was challenged by
both parties, and the ballot in question was tallied
as a challenged ballot. The Regional Director, in
agreement with the Board agent, recommended
that the parties' challenges be overruled and that
the ballot be declared void. We find merit in the
Employer's exception to this recommendation.
The ballot, a reproduction of which is attached
hereto as an appendix, is marked with three letters
extending across the "yes" and "no" boxes. Before
the Regional Director, the Employer contended
that the letters spelled "NON," indicating a "no"
vote, and the Union contended that the letters
spelled "NOW," indicating a "yes" vote. In his
report, the Regional Director found that the forma-
tion of the last letter of the writing was not suffi-
ciently clear to allow a proper objective evaluation
of voter intent. The Regional Director also found
that even if the intended letters were "NON," it is
unclear whether the voter's intent was to vote
against union representation or to reject voting en-
tirely.
The Board's longstanding policy has been to
give effect to voter intent whenever possible.' In
' Hydro Conduit Corp, 260 NLRB 1352 (1982). This policy has been
strongly endorsed by the courts of appeals See, e .g, Wackenhut Corp. v
NLRB, 666 F 2d 464, 467 (11th Cir 1982), and cases there cited.
accordance with that policy, we have closely ex-
amined the irregularly marked ballot in issue here.
We disagree with the Regional Director's conclu-
sion that the formation of the last letter is unclear,
and we find that the writing spells "NON," indicat-
ing a "no" vote.2 We also disagree with the Re-
gional Director's alternative conclusion that the
voter may have been demonstrating an unwilling-
ness to participate in the voting process by writing
the letters across both boxes. We believe that by
casting a marked ballot, the voter evidenced an
intent to register a preference,3 and, for the reasons
already stated, we think that preference was clearly
to vote against union representation. Accordingly,
contrary to the Regional Director' s recommenda-
tion, we count the ballot in question as a valid
"no" vote.4
2. Our decision to count the above ballot alters
the tally of ballots so that the votes cast against the
Petitioner now tally 43, and the number of votes
cast for the Petitioner remains at 43. The number
of challenged ballots has been reduced to nine.
These nine voters submitted affidavits to the Re-
gional Director voluntarily waiving their right to
have their ballots kept secret and requesting that
their ballots be opened. Based on the assumption
that the Board would adopt his recommendation
on the ballot discussed above, the Regional Direc-
tor further recommended that these nine ballots be
opened and counted without first resolving the
voters' eligibility. s However, as we have decided
not to adopt the Regional Director 's initial recom-
mendation and as the vote count now stands tied at
43 to 43, we find that the circumstances are inap-
propriate for waiving the secrecy of the ballots and
counting them without first determining the eligi-
bility of the voters. Accordingly, we shall order
that a hearing be held on these challenged ballots.
ORDER
It is ordered that a hearing shall be held before a
duly designated hearing officer for the purpose of
receiving evidence to resolve the issue of the eligi-
bility of the nine challenged voters. For purposes
8 The Board's ballot was in both Spanish and English A plural form
of the word "non" in Spanish is defined as meaning "repeated negation
or denial; refusal." Appleton's New Cuya Dictionary 387 (5th ed 1972)
The word "non" in English is defined as meaning "not " Webster 's Third
New International Dictionary 1535 (1966)
8 Harry Lunstead Designs, 265 NLRB 799, 800 (1983). Contrary to our
dissenting colleagues, we note that the voter who cast the challenged
ballot in issue did more than merely appear at or enter the place; the
voter also cast a marked ballot.
4 Kaufman's Bakery, 264 NLRB 225 (1982), cited by the Regional Di-
rector, does not support the result he reached. In Kaufman 's, the Board
counted two irregularly marked ballots as valid "yes" votes
s In support of this procedure, the Regional Director cited Ladies Gar-
ment Workers, 137 NLRB 1681 (1962).
286 NLRB No. 134
1414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of hearing and decision, the instant case may be
consolidated with a related unfair labor practice
proceeding.
IT IS FURTHER ORDERED that the administrative
law judge or hearing officer designated for the pur-
pose of conducting the hearing shall prepare and
cause to be served on the parties a decision or
report containing resolutions to the Board as to the
disposition of the issues. Any party may, within the
time prescribed by Section 102.46 and 102.69 of the
Board's Rules and Regulations, whichever is appli-
cable, file exceptions to the judge's decision or the
hearing officer's report. If no exceptions are filed,
the Board will adopt the recommendations of the
judge or hearing officer.
IT IS FURTHER ORDERED that this proceeding be
referred to the Regional Director for Region 23,
who shall arrange and issue notice of the hearing.
MEMBERS JOHANSEN AND BABSON, dissenting.
Unlike the majority, we find the ballot marked
"NON" or "NOW" across both the "yes, si" and
"no, no" boxes to be void. It is the Board's policy
to count irregularly marked ballots only where
"the intent of the voter is clearly apparent." The
Board reiterated its adherence to this policy in
Hydro Conduit Corp., 260 NLRB 1352 (1982). We
agree with the Regional Director that the manner
in which the ballot was marked does not permit
certain judgment about whether the voter wrote
"NON" or "NOW." Where the ambiguity of the
markings on a ballot make it impossible to deter-
mine the clear intent of the voter, the ballot is con-
sidered void.
Additionally, we are unwilling to speculate con-
cerning whether the voter was a Spanish-speaking
employee writing "non" with its Spanish meanings,
or an English-speaking employee writing "non"
with its English meanings, or a poor-spelling em-
ployee attempting to write "none" phonetically.'
Further, the majority argues that the plural of the
Spanish word "non" means "refusal" or "denial."
But the plural of "non" is "nones," a five-letter
word. Because "NONES" was not written on the
ballot, the meaning of "NONES" is no help in in-
terpreting the voter's intent . Similarly, because
"non" is an English prefix meaning "not," that,
too, is no help here. A prefix is only part of a
word. Was the voter "not participating," "not
voting," "not conforming"? We do not know and
neither does the majority.
The ballot must be voided.
' Nor does Member Johansen assume that the mere fact that an em-
ployee appears at the poll indicates a desire to vote for or against repre-
sentation . Contra, Harry Lunstead Designs, 265 NLRB 799 (1983). There
are a myriad of reasons why an employee might enter a polling place and
still not wish to indicate a choice in the election.
Member Babson accepts the general proposition relied on by the ma-
jority that by casting a marked ballot a voter usually intends to register a
preference. He finds here , however, that the application of that general
proposition begs the critical question , that is, whether the marking itself
clearly registers a preference . For the reasons stated herein, Member
Babson finds that the marking on the ballot in issue is ambiguous