J.L.P. Vending Co., Inc.

National Labor Relations Board - Board DecisionsJun 23, 1975

218 N.L.R.B. 794 (N.L.R.B. 1975)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J.L.P. Vending Co., Inc. and Teamsters Local 158, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 4-RC-11279 June 23, 1975 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS 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 and deter- minative challenges in an election held on November 26, 1974,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief of the Petitioner and hereby makes the following findings of fact: The Board agent conducting the election ruled one ballot void, and the Petitioner' filed a timely objection to that ruling. Contrary to the Regional Director's recommendation to overrule this objec- tion, we find merit therein for the reasons discussed below. The ballot in issue is marked with a single diagonal line in - the "No" box, and several diagonal lines, superimposed one on top the other, in the "Yes" box. It is clear, however, from looking at the ballot (which has been submitted with the record in this case) that an attempt was made to erase the single diagonal line in the "No" box. Nevertheless, the Regional Director reasoned that "the markings in either of the designat- ed squares, absent the marking in the other square, would be considered a clear indication of the intent of the voter"; consequently, relying primarily upon Mercy College, 212 NLRB 925 (1974), he concluded that he was unable to ascertain the intent of the voter with the required degree of certainty. We disagree. Although there is certain language in Mercy College which would appear to support the Regional Director's conclusion here, the facts of that case are clearly distinguishable. There, the ballot in issue had one box completely shaded in and the other box marked with an "X." The Board majority (Member Fanning dissenting) found that, with both boxes marked in, it could not ascertain the clear intent of the voter without conjecturing as to what happened in the voting booth, which the Board declined to do. The attempted erasure by the voter in this case clearly distinguishes this situation from that present- 1 The election was conducted pursuant to a Stipulation for Certification Upon Consent Election . The tally was 9 for, and 8 against, the Petitioner; 218 NLRB No. 119 ed in Mercy College. Unlike the ambiguous situation in Mercy College where both boxes were clearly marked and speculation would be required to determine the voter's preference, in this case the voter's attempt at erasure of the single diagonal line in the "No" box and his placement of several heavy lines in the "Yes" box for emphasis makes clear to us the choice he intended by his vote, that is, for representation by Petitioner. The Board has in the past found ballots to be valid, even though there were markings in more than one box, under circumstances where, as here, an attempt was made to erase one of the markings. See, e.g., Gifford-Hill & Co., Inc., 181 NLRB 729 (1970), and Belmont Smelting & Refining Works, Inc., 115 NLRB 1481 (1956). And in those erasure cases in which the Board has gone the other way, it has been reversed by the courts. See, e.g., N.L.R.B. y. Schapiro & Whitehouse, Inc., 356 F.2d 675 (C.A. 4, 1966), and N.L.R.B. v. Whitinsville Spinning Ring Company, 199 F.2d 585 (C.A. 1, 1952). Indeed, the following comments of the court in Whitinsville Spinning Ring Company, supra at 588, appear to us to be particularly applicable to the facts in this case: Undoubtedly the Board in the exercise of the wide discretionary powers conferred upon it by Congress could within the democratic framework have adopted a rigid policy or practice of regarding all ballots marked in an unorthodox manner as mutilated and therefore void in order to avoid disputes over ballots and thus expedite counting, and the determination of bargaining representatives. It has not done so, however, but instead it has adopted a more liberal policy in conformity with the view which apparently prevails' in this country with respect to political elections... . ... We must confess that we can fmd no logical reason why the Board should single out an erasure, or an attempt at erasure, on a ballot for special treatment by considering all such ballots necessarily mutilated and therefore void. More- over, it seems to us only fair that a voter should be apprised of such an extraordinary rule. While the statement printed on the ballot directed the voter to obtain a new ballot if he "spoiled" the original one, the word "spoiled" was in no way defined, and it is difficult for us to say that the average voter would consider a ballot "spoiled" merely because it contained a slight erasure. If departure from orthodoxy in marking ballots is to be countenanced by the Board at all, as it clearly there was 1 challenged ballot and 1 ballot was ruled void. J.L.P. VENDING CO., INC. 795 is from the decisions cited above, then, in the absence of any question of voter identification, the problem is, as the Board has repeatedly held, to discover if possible the voter's intent. As the court properly noted, the Board's object has always been one of ascertaining the voter' s inten- tions . Nor has the Board's practice been one of requiring any uniform marking to register that intent, so long as the choice, as in this instance , is clearly manifested. Therefore, in accord with this practice, we find the voter's choice here clearly to be that of voting in favor of representation. Accordingly, we shall count the ballot as a valid vote in favor of Petitioner and, inasmuch as the revised tally shows that the challenged ballot is no longer determinative, we shall issue a certification of representative. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Teamsters Local 158, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: INCLUDED: All driver-salesmen, commissary workers, warehousemen, truck and machine mechanics. EXCLUDED: All office clerical employees, supervi- sors, watchmen and guards as defined in the Act.