7th Circuit OKs NLRB Election
In which Ballot Smudged
X in both boxes not enough to make
Ballots used in union elections supervised by the National Labor Relations Board are tightly controlled by the field agents who manage the balloting on site. Ruan Transport Corporation faced organizing campaigns by not one, but two Teamster locals, so the employer wound up with a three way election: yes to Local Local 705, yes to Local 710, or no to any union. The first time around there were twelve votes for each union (and no nays). Ties require run-offs, so a second election was conducted in May 2010, using mail ballots because of the on-the-road schedules of drivers who could vote.
The second election ballots, that were on bright pink paper, had two choices: a box indicating yes to Local 705 or a box indicating yes to Local 710, and were accompanied by the standard instruction to mark an “X” in the square “of your choice”. One of the voters had marked the 710 box lightly with an “X”, then marked the 705 box with what the court described as a clear, heavily marked X”. This voter also partially scratched out the 710 box “X” and shaded over the marking with a highlighter that had a pink color slightly darker than the paper the ballot was printed on.
In the second election each union received fourteen votes, with two challenged ballots. The first of these involved an ineligible voter and the hearing officer reviewing the election sustained it. Ruan challenged the smudged ballot, claiming the voter’s intent was ambiguous.
Under Board law, ballots with scratched out “X”s may count if there is a “effective and clear obliteration” and the voter indicates a vote in the other box (or boxes).
The Seventh Circuit upheld the Board’s certification of Local 705: “….[T]he voter obviously attempted to rub out the ‘X’ and then colored it over with a highlighter similar in color to that of the ballot paper in order to minimize the appearance of the marking in the Local 710 box. Alongside this attempt to obliterate…the voter left a distinct, heavily marked ‘X’ in the Local 705 box, made with multiple pen strokes….” Ruan Transportation Corporation v National Labor Relations Board, __F3rd__, Nos. 11-1183 and 11-2058 (7th Cir. March 19, 2012).
Local 710 had argued that the highlighting in fact evidenced a preference for that union, not a “no.” This was not a baseless argument, and challenges the court’s use of the adverb “obviously” when describing the voter’s intentions.