Gifford-Hill & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1970

181 N.L.R.B. 729 (N.L.R.B. 1970)

GIFFORD-HILL & CO.
Gifford- Hill & Co., Inc . and General Teamsters
Local No. 528 and Laborers ' International Union
of North America , Local No. 438,
Joint- Petitioners . Case 10-RC-7948
March 18, 1970
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
- On December '19, 1969, the Regional Director for
Region 10 issued his Supplemental Decision and
Order to Open and Count Challenged Ballot' in
which he ordered the opening and counting of the
one challenged ballot cast in the election
hereinbefore held on November 13, 19692 and he
overruled the Employer's objections to conduct
affecting the results. ,' Thereafter, pursuant to
National Labor Relations Board Rules and
Regulations, the Employer filed a timely request for
review of the Regional Director's Supplemental
Decision on the grounds, inter alia , that he erred in
overruling objection 1, pertaining to a ballot which
he found to be void, and in ordering the opening
and counting of the challenged ballot.
By telegraphic Order dated January 22, 1970, the
National Labor Relations Board granted the request
for review insofar as it related to objection 1 and the
challenged ballot, denied it in all other respects,3 and
stayed the Order to Open and Count pending
decision on review. Thereafter the Employer filed a
timely brief on review, including a request for oral
argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
The Board has considered the entire record in this
case with respect - to the issues under review,
including the Employer's brief on review, and makes
the following findings:
The Employer's objection I relates to the action
of the Board Agent in ruling void, during the
tabulation of the ballots at the, conclusion of the
balloting, a ballot marked as follows:
'On December 31, 1969 , the Acting Regional Director issued an Order
Denying the Employer 's Motion for Reconsideration
'The tally of ballots for the election showed that of approximately 38
eligible voters , 16 cast valid ballots for, and 15 against the
Joint-Petitioners One cast a challenged ballot and one a void ballot
'The Board also denied the Employer 's separate motion for hearing
'Insofar as the Employer in this document requests reconsideration of
the Board's denial of portions of its request for review and its motion for
hearing, such request is denied as raising nothing not previously
considered The request for oral argument is likewise denied, as the record,
the request for review and the brief on review adequately present the issues
and the positions of the parties
729
MARK AN "X" IN THE SQUARE OF
YOUR CHOICE
YES
V
NO
DO NOT SIGN THIS BALLOT. Fold and
drop in ballot box.
If you spoil this ballot return it to the Board
Agent for a new one.
The Regional Director overruled the objection on
the ground that no objection was made to the Board
Agent ' s ruling during the tabulation of the ballots
and that the attempt to raise the issue of the validity
of the ballot by means of an objection constitutes a
post-election challenge which the Board does not
consider . The Employer contends that it properly
raised the issue of the validity of the ballot and that
as the voter ' s intent is clearly reflected in the
distinct "X " in the "no" square , the ballot should
be ruled a valid "no" vote. We agree.
It is well settled that the question of the validity
of a ballot may properly be raised by a timely
objection after the count and is not considered a
post-election challenge. ' It is reasonable to infer
from the marking in the "yes" box that the voter,
lacking an eraser, attempted to blur with his pencil
the slant mark he had made Furthermore, the
marking so made is not inherently a means of
identifying the voter.6 Accordingly , in view of the
distinct "X" in the "no" box, we find that the voter
clearly expressed his intent to vote no. We shall
therefore sustain the Employer's objection 1.' As the
ballot in question must be counted as a valid "no"
vote, the tally of ballots must be revised to show
that 16 ballots were cast for, and 16 against, the
Joint- Petitioners
The challenged ballot was cast by employee
Richard Clark, as to whom a complaint is pending,
alleging that he was discharged by the Employer in
violation of Section 8(a)(3) of the Act. Because of
the strong likelihood that Clark, an active adherent
of the Joint-Petitioners , voted in favor of
representation and the fact that , according to the
tally prior to its revision herein , the Joint- Petitioners
would have a majority even if he were later found to
be an ineligible voter , the Regional Director
followed the procedure adopted in International
Ladies' Garment Workers ' Union , 137 NLRB 1681,
of ordering his challenged ballot opened and ' counted
without waiting for the disposition of the unfair
labor practice proceeding. However, in view of our
'George K Garret Company , Inc, 120 NLRB 484, F J Stokes
Corporation , 117 NLRB 951, National Truck Rental Company , Inc, 110
NLRB 838
'See Bridgeton Transit , 124 NLRB 1047
'Belmont Smelting & Refining Works, Inc, 115 NLRB 1481
181 NLRB No. 103
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revision of the tally, it is evident that the
Joint-Petitioners could not be certified without a
determination that Clark was an eligible voter. The
ILGWU procedure may not, therefore, be utilized
herein. Accordingly, we shall remand the case to the
Regional Director for further proceedings after the
unfair labor practice case is resolved.
ORDER
It is hereby ordered that the instant case be, and
it hereby is, remanded to the Regional Director for
further proceedings after the issue of Richard
Clark's eligibility to vote is resolved in the pending
unfair labor practice proceeding.