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Irregular Markings On Election Ballot Result in Change to Outcome of Union Election


Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics v. NLRB - Seventh Circuit Court of Appeals


Facts:  Hanson Logistics ("Hanson") provides public-refrigerated warehousing and transportation services in the Midwest.  On February 4, 2016, the International Brotherhood of Teamsters Union Local No. 142 ("Local 142") filed a petition to be exclusive collective bargaining representative for a subset of Hanson's employees.  On February 29, 2016, the National Labor Relations Board ("Board") conducted an election to determine whether Local 142 would represent the group of employees.  The ballots instructed each voting employee to "mark an 'X' in the square of your choice."

Thirty seven employees cast a ballot in the election that day.  Hanson and Local 142 did not dispute thirty five of the ballots (with eighteen cast in favor of Local 142's representation and seventeen cast against it).  At issue were two ballots:  Hanson contested a vote by an unknown voter on the grounds that the voter's intent was unclear from the markings on the ballot and Local 142 contested a voter (Lawrence Kelly) on the ground that Kelly was not a Hanson employee at the time of the vote.

On March 25, 2016, the NLRB's Acting Regional Director issued a decision overruling Hanson's challenge to the unknown voter.  In doing so, that made the vote in favor of Local 142's representation by a margin of 19 - 17 and Local 142 was subsequently certified as the exclusive collective bargaining representative of these Hanson employees.  After Hanson refused to recognize Local 142 as the exclusive bargaining unit on the grounds that it believed the challenged ballots had been incorrectly decided, the Regional Director issued a complaint against Hanson and claimed the company was violating Section 8(a)(1) and (5) of the National Labor Relations Act.  Hanson once again asserted its belief that Local 142 was not the exclusive collective bargaining representative and the NLRB subsequently issued an order affirming certification of Local 142.  Hanson proceeded to file an appeal with the Seventh Circuit.

Holding:  The Court of Appeals began its analysis of the case with an examination of the unknown voter's ballot.  All ballots had instructions which stated "mark an 'X' in the square of your choice."  Beneath that instruction were two boxes, one marked "Yes" and the other "No".  While nearly all other voters followed the instructions, the unknown voter marked a large "X" which touched the "Yes" box, but also extended far outside of it (along with indecipherable scribbling both inside and outside the box).  Both parties acknowledge it is unclear if the "X" or the scribbles came first.  Further, it is unclear if the voter intended the scribbles to void or emphasize the vote.

Although there existed a great deal of uncertainty in regard to this particular vote, the Regional Director counted the ballot as a "Yes" vote on the grounds that the NLRB has a longstanding policy of attempting "to give effect to voter intent whenever possible."  In doing so, the Regional Director pointed to an NLRB decision which stated the Board "regard[ed] a mark in only one box, despite some irregularity, as presumptively a clear indication of the intent of the voter."  In this instance, the Regional Director applied this rationale and noted that since the ballot contained markings only in the "Yes" box, it could presumed that the unknown voter intended to vote in favor of Local 142.

However, the Court held that this was an abuse of discretion.  The NLRB's overarching policy (as well as prior holdings in the Seventh Circuit) is to count ballots when the voters' intent is clear, despite irregularities in the manner in which the ballots have been marked.  However, the NLRB has previously issued a decision in which it stated it will not speculate "to divine the intent of a ballot that is not clear," or "to negate the intent of a ballot that is otherwise clear."  When a voter fails to "ma[ke] his or her preference clear" on the face of the ballot itself, then the ballot "must be void."  (emphasis added).  The Court noted that based upon the facts of this case, the unknown voter's intent was presumed, although there were contradictory markings on the ballot itself. 

Judgment:  The Seventh Circuit Court of Appeals vacated the National Labor Relations Board's certification of a union election on the grounds that the NLRB abused its discretion when a ballot was counted in favor of union representation, although the ballot had irregular and contradictory markings that could not ascertain the intent of the voter.

The Takeaway:  Quite the interesting case, right?  I refer you to the below opinion which includes a picture of the unknown voter's disputed ballot.  From what you can see, there appears to be a "clear" mark in the "Yes" section of the ballot.  However, as the Court noted, the other illegible scribbles around the "Yes" box do cloud an interpretation of what the voter's intent actually was.  It is anyone's guess what those other scribbles say (or were intended to convey).  

With that being said, I find myself somewhat agreeing with the NLRB (notwithstanding the other markings on the ballot) such that the voter intended to vote "Yes" in the election.  For instance, no markings appeared in the "No" box or elsewhere on the ballot which could be interpreted as the unknown voter also intending to vote "No" (in addition to the "X" in the "Yes" box).  However, as the Court of Appeals noted, when a voter fails to make his/her preference clear on the fact of the ballot, the ballot must be void.  I think that mandatory "must" language should give readers pause.  Although it is certainly possible (if not likely) that the unknown voter intended to vote "Yes", that intent could not clearly be discerned from the face of the ballot.  With a bit of ambiguity on the ballot here (and based upon prior caselaw interpreting the effect of ambiguous ballots), I think the Court got it right in this case.

Majority Opinion Judge:  Judge Kanne

Date:  June 20, 2017

Opinion:  http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D06-20/C:16-3671:J:Kanne:aut:T:fnOp:N:1982564:S:0

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