Staco, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1978

234 N.L.R.B. 593 (N.L.R.B. 1978)

STACO, INC.
Staco, Inc. and United Furniture Workers of America,
AFL-CIO, Petitioner. Case i-RC- 15176
January 31, 1978
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to and
determinative challenges in an election held on June
29, 1977,1 and the Regional Director's report recom-
mending disposition of the same. The Board has
reviewed the record in light of the Employer's
exceptions2 and brief and hereby adopts the Region-
al Director's findings and recommendations.
The Employer's Objection 3 alleges that one ballot
was improperly counted as a void ballot when it was
clear that the voter intended to cast a "No" vote, as
evidenced by the word "No" written on the back of
the ballot. The Regional Director's investigation
disclosed that the disputed ballot had no markings
on its face, but had the word "No" written on the
blank reverse side. The Regional Director, relying on
the rationale in Columbus Nursing Home, Inc., 188
NLRB 825 (1971), concluded that the Board agent
acted properly in voiding the improperly marked
ballot. He therefore recommended that the objection
be overruled. The Employer has excepted to the
Regional Director's recommendation and, essential-
ly, urges the Board to reconsider its stated policy in
light of the contrary court decisions. 3
We agree with the Regional Director that the ballot
in dispute should be declared void for the voter
"displayed a remarkable indifference to the instruc-
tions and to time-honored election procedures in
general." Columbus Nursing Home, Inc., supra at 825-
826. As we stated in that case (at 825):
It is the policy of the Board to count irregularly
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 [sic]
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 68 for the Petitioner, 67 against, with
8 challenged ballots, a sufficient number to affect the results of the election.
One ballot was declared void.
2 In the absence of exceptions thereto, we adopt, proforma, the Regional
Director's recommendation that the issues raised by the eight challenged
ballots be remanded for a heanng, and that the Employer's Objections 1, 2,
234 NLRB No. 101
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.
Moreover, we agree with Circuit Judge Heaney's
well-reasoned dissent in Roberts Door and Window,
supra at 353, where he points out that two additional
reasons exist for not counting such ballots:
The first is certainty. Employees, under current
Board policy can be told plainly that no ballots
marked on the reverse side will be counted.
Under our decision today, such an instruction
cannot be given. The second is that a rule giving
the Board discretion to count such ballots inevit-
ably operates to the disadvantage of the employ-
ees favoring Union representation. If the Board
rules that a ballot marked on the reverse side
should be counted against the Union, there is no
effective way under existing precedents that the
Union can obtain meaningful court review. The
employer, however, can have court review of a
decision to count a ballot for the Union by
refusing to bargain.
Accordingly, we respectfully adhere to our posi-
tion, as most recently expressed in Columbus Nursing
Home, supra, notwithstanding the contrary decisions
of the U.S. Courts of Appeals for the Fourth, Fifth,
and Eighth Circuits, until such time as the U.S.
Supreme Court has passed on the matter. According-
ly, we find the disputed ballot void and overrule the
Employer's Objection 3.
ORDER
It is hereby ordered that a hearing be held before a
duly designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised by the
challenges to the ballots of James Hamblin, Sr.,
Michael Hampl, Alfred Pemberton, Frederick John
Rhode VI, David Rudolph, Margaret Williams,
Phyllis Jones, and Charles Ward.
IT IS FURTHER ORDERED that following the hearing,
the Hearing Officer designated for the purpose of
conducting the hearing shall prepare and cause to be
served on the parties a report containing resolutions
of the credibility of witnesses, findings of fact, and
recommendations to the Board, as to the disposition
of the challenges. Within the time prescribed by the
and 5 be overruled. The Employer's exceptions to the Regional Director's
recommendation that its Objection 4 be overruled raised no material issues
of fact or law warranting reversing the Regional Director or a hearing
herein.
3 Roberts Door and Window Company v. N.LR.B., 540 F.2d 350 (C.A. 8,
1976), N.LR.B. v. Tobacco Processors, Inc., 456 F.2d 248 (C.A. 4, 1972),
N. L.R.B. v. Titche-Goettinger Co., 433 F.2d 1045 (C.A. 5, 1970).
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Rules and Regulations, Series 8, as amended,
either party may file with the Board in Washington,
D.C., eight copies of exceptions thereto. Immediately
upon the filing of such exceptions, the party filing the
same shall serve a copy thereof on the other party
and shall file a copy with the Regional Director. If no
exceptions are filed thereto, the Board will adopt the
recommendation of the Hearing Officer.
IT IS ALSO FURTHER ORDERED that the above-
entitled case be, and it hereby is, remanded to the
Regional Director for Region 1 for the purpose of
arranging such hearing, and that the said Regional
Director be, and hereby is, authorized to issue notice
thereof.
MEMBER MURPtHY, dissenting in part:
I agree with my colleagues' decision to adopt the
findings and recommendations of the Regional Di-
rector in all respects except his recommendation to
overrule Objection 3. The question raised in Objec-
tion 3 is whether in this election, involving a single
petitioning Union, the Board agent improperly void-
ed a ballot containing no markings on its face but
bearing the word "NO" on its back. I believe that the
ballot should have been counted since it clearly
shows that the voter intended to vote against repre-
sentation by the Union. I believe the time has come
for the Board to reevaluate its position stated in
Columbus Nursing Home, Inc., supra. I fully agree
with the rationale of the three circuit courts of
appeals, cited by the majority in footnote 3, supra,
which have disagreed with the Board's practice since
1951 of voiding ballots which, as here, are unmarked
on the front but clearly express the voter's intent on
the back.4
In this case, as in the three circuit court decisions, a
standard National Labor Relations Board ballot
asked the employee-voter the question: "Do you
wish to be represented for purposes of collective
bargaining by-the named Union?" The ballot in-
structed the voter to mark an "X" in the square of his
or her choice beneath the word "yes" or beneath the
word "no." The voter in each of the four cases failed
to place an "X" in the box of his or her choice, but
instead, wrote the word "No" on the blank reverse
side of the ballot. In my judgment, and in that of the
three courts, this manner of marking a ballot, while
deviating from specific instructions on the ballot,
clearly revealed the voter's choice.
The Board reasons for invalidating ballots marked
in this manner are threefold. First, the intent of the
voter is not c ;tten on the back
of the ballot. Second, marking on the back of a ballot
4 Before 1951 it was the Board's practice to count ballots marked in this
manner since such ballots were unambiguously marked and the voter's
makes it easy to identify the voter and could be used
by a party to the election to insure that an employee
votes in a particular manner. Third, it would be
unnecessarily time-consuming for the Board agent
counting the ballots to be required to turn over each
ballot to examine its reverse side.
I reject these arguments substantially for the
reasons stated by the courts. Thus, a ballot with the
word "No" or "Yes" on its back clearly manifests the
voter's intent. The Board's policy has been to count
any ballot even if irregularly marked, if it contains a
clear expression of the voter's preference. Greg
Moore Co., 178 NLRB 483 (1969); Knopp Sherrell
Company, 181 NLRB 1547 (1968); Bridgeton Transit,
124 NLRB 1047 (1959); Pioneer Electronics Corpora-
tion, 112 NLRB 1010 (1955). A ballot marked on its
back no more discloses the identity of the voter than
a ballot bearing irregular markings on its face.
Finally, it would not be unduly burdensome or time
consuming for the Board agent conducting the count
to flip each ballot over.
As stated, the courts have not been persuaded by
the Board's reasoning on this issue. It is noteworthy
that the Fifth Circuit in Titche-Gottinger, supra,
rejected the Board's argument that marking a ballot
on the reverse side is too radical a departure from the
accepted norm in marking ballots to permit conjec-
ture as to the voters' intent. The court noted that the
Board's policy has consistently been to give effect to
the voters' intent whenever possible. Similarily, the
Fourth Circuit in Tobacco Processors, supra, in a brief
per curiam opinion, declined to enforce the Board's
bargaining order because "the Board excluded four
ballots which were blank on their face but which had
the word 'no' written on their back. The ballots
should have been counted since they clearly mani-
fested the voters' intention not to be represented by
the Union." Likewise, the Eighth Circuit, in Roberts
Door and Window Company, supra, denied enforce-
ment of the Board's bargaining order, stating they
could find no justification or logic in a distinction
between counting ballots which were unconvention-
ally marked on their face while voiding ballots not
marked on their face, but evidencing the voters'
intent on their back. Additionally, the court was not
persuaded by the Board's arguments that the mis-
marked ballot provided a means of identifying the
voter.
For all of the foregoing reasons, I would find the
ballot in question to be a valid ballot and sustain the
Employer's Objection 3.
intent was clear. Marshall, Meadows d Steward, Inc., 59 NLRB 1286, 1287
(1944).
594