Manhattan Corp.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 272 (N.L.R.B. 1979)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manhattan Corporation, Manhattan Guest House,
Inc. and Service Employees International Union,
Local 275, AFL-CIO, Petitioner. Case 15-RC-
6305
January 26, 1979
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered objections to and de-
terminative challenges in an election held on June 23,
1978,' and the Acting Regional Director's report rec-
ommending disposition of the same. The Board has
reviewed the record in light of the Employer's excep-
tions2 and hereby adopts the Acting Regional
Director's findings and recommendations.
The Employer's objections allege, in substance,
that the Board agents conducting the election voided
three ballots which should have been counted. Two
of the disputed ballots had no markings on their
faces, but were marked with an "X" on the blank
reverse side. The third disputed ballot had no mark-
ings on its face, but had the word "NO" written on
the blank reverse side. The Acting Regional Director,
citing, inter alia, Columbus Nursing Home, Inc., 188
NLRB 825 (1971), and Staco, Inc., 234 NLRB 593
(1978), concluded that the Board agents acted prop-
erly in voiding the improperly marked ballots. He
therefore recommended that the objections be over-
ruled. The Employer has excepted to the Acting Re-
gional Director's recommendation and, essentially,
urges the Board to reconsider its stated policy in light
of the decisions by certain United States Circuit
Courts of Appeals.3
We agree with the Acting Regional Director that
the two disputed ballots marked "X" on the reverse
side should be declared void. In addition, contrary to
our dissenting colleague, for reasons set forth more
IThe election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 43 for, and 42 against, the Petitioner.
with 5 challenged ballots, a sufficient number to affect the results of the
election. Three ballots were declared void.
2 In the absence of exceptions thereto, we adopt, pro forma, the Acting
Regional Director's recommendation that the challenges to the ballots of
Maria Hansen and Annie St. Amand be sustained. Additionally, in accor-
dance with the stipulation of all parties, the challenges to the ballots of Irma
Wilson, Georgene Burt, and Bernice Fox are sustained.
Roberts Door and Window Company v. N.L. R.B., 540 F.2d 350 (8th Cir.
1976); N.L.R.B. v. Tobacco Processors. Incorporated, 456 F.2d 248 (4th Cir.
1972); N.L.R.B. v. Tilche-Goettinger Company, 433 F.2d 1045 (5th Cir.
1970).
240 NLRB No. 6
fully in Columbus Nursing Home, Inc., supra, and our
recent decision in Staco, Inc., supra, we agree that the
third ballot in dispute, marked on the blank side with
the work "NO," should also be declared void. As we
stated in Columbus Nursing Home, Inc.:
It is the policy of the Board to count irregu-
larly marked ballots whenever the intent of the
voter is clearly apparent. However, where, as
here, a ballot contains no markings on its face,
any conclusion drawn about the voter's intent
based on markings on the back of the ballot
must be almost entirely speculative. Rather than
engage in such speculation, the Board has, since
1951, followed a policy of invalidating ballots
marked in a manner so radically different from
the normal method of marking ballots.4
Consequently, we respectfully adhere to our posi-
tion, as most recently expressed in Staco, Inc., supra,
notwithstanding contrary decisions of courts of ap-
peals, until such time as the United States Supreme
Court has passed on the matter. Accordingly, we find
the disputed ballots void and overrule the Employ-
er's objections in their entirety.
We note that our dissenting colleague agrees with
the Acting Regional Director's finding that the "X"
ballots are void, but would count the "NO" ballot as
a valid "no" vote. In so finding, our colleague con-
cludes that the latter ballot clearly expresses the
voter's intent. As we discussed at length in Staco,
Inc., supra, we would not consider any ballots so im-
properly marked in order to determine the intent of
the voter who cast the ballot. Were we to reach the
question of voter intent, however, it appears that the
differing positions taken by our colleague on the two
types of improperly marked ballots are inconsistent
with each other. For, we do not see how the ballot
marked "NO" on the back more clearly expresses the
voter's intent than the ballots marked on the back
with an "X" in the position such that the "X" would
appear with the "NO" square on the face of the bal-
lots. Arguably, the word "NO" written on the back
of the ballot may indicate a voter's desire to vote
"NO" or not to vote at all. It is precisely this type of
speculation and argument that compels us to avoid
trying to determine intent from markings on the back
of a ballot, which in any event reveal that the voter
was acting contrary to or in ignorance of the instruc-
tions on its face.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Service Employees Inter-
4 188 NLRB at 825.
MANHATTAN CORPORATION 273
national Union, Local 275, AFL-CIO, and that, pur-
suant to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive representative of all the employees in the
following appropriate unit for the purposes of collec-
tive bargaining in respect to rates of pay, wages.
hours of employment, and other terms and condi-
tions of employment:
All full-time and regular part-time licensed prac-
tical nurses, nurses aides, housekeeping employ-
ees, dietary employees, laundry employees, and
groundsmen, excluding all professional employ-
ees, confidential secretary, watchman, guards,
and supervisors as defined in the Act.
MEMBER MURPHY, dissenting in part:
I agree with my colleagues' decision to adopt the
findings and recommendations of the Acting Region-
al Director in all respects except as to his recommen-
dation to void the ballot marked on the back with the
word "NO." Contrary to the majority, and for the
reasons set forth in my dissent in Staco, Inc., 234
NLRB 593 (1978), I find that this manner of marking
ballots, while not in compliance with the instructions
on the ballot, clearly reveals the voter's choice. Un-
like the situation where the ballots are marked on the
back with an "X" and where the Board can only
speculate as to the voter's intention, I find the ballot
with the word "NO" written on the back to be a clear
manifestation of the voter's intention not to be repre-
sented by the Union. In such a situation, there is no
need for the Board to speculate as to the voter's
choice. I would therefore find the ballot marked on
the back with the word "NO" to be a valid ballot. As
the resulting revised tally would not give Petitioner a
majority of the valid votes cast, I would issue a certi-
fication of results.