N.L.R.B. v. Wrape Forest Industries, Inc., 78-1252
| Decision Date | 24 April 1979 |
| Docket Number | No. 78-1252,78-1252 |
| Citation | 596 F.2d 817 |
| Parties | 101 L.R.R.M. (BNA) 2001, 86 Lab.Cas. P 11,267 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WRAPE FOREST INDUSTRIES, INC., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael S. Winer and Norman A. Moscowitz, Attys., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief, for petitioner.
Charles W. Reynolds and Gaines H. Houston, Little Rock, Ark., on brief, for respondent.
Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, En Banc.
This case was originally submitted to a panel of this court. The panel questioned the continuing validity of a prior decision of this court, Roberts Door and Window Co. v. NLRB, 540 F.2d 350 (8th Cir. 1976), and requested that the case be submitted to the court en banc. The court en banc accepted the case and proceeded to consider the issue on briefs without further oral argument. A majority of the court is of the opinion that the Roberts Door decision has continuing vitality and reaffirms the principles stated therein.
The National Labor Relations Board has applied for enforcement of its order against Wrape Forest Industries, Inc. issued on February 21, 1978. The Board found that Wrape Forest had committed an unfair labor practice by refusing to recognize and bargain with the United Furniture Workers of America, AFL-CIO. The Board had certified that union as the exclusive representative of Wrape Forest employees following a representation election at which the Board found that eighty-five votes were properly cast in favor of union representation and eighty-three votes were properly cast against the proposition. The company admits that it refused to bargain with the union. However, it contends that the Board's certification of the union is invalid due to the refusal of the Board to count three contested ballots. After carefully considering the briefs of the parties and the record, we deny enforcement of the Board's order.
Since the union won the election by a two-vote margin, the vote would be tied and the company would not be required to recognize and bargain with the union if two of the contested "No" votes were now counted. See 29 U.S.C. § 159(a). The first challenged ballot was marked with an "x" in the "No" square, but contained the first and last name of an eligible voter written on either side of the square containing the "x". The second challenged ballot had "No" written in the "Yes" square on the face of the ballot. The third was marked "No" on the blank reverse side of the ballot and was not marked on the printed side.
The Board refused to count the ballot containing the name of an eligible voter. This refusal was pursuant to the Board's apparently consistent policy of refusing to consider ballots that contain evidence of voter identification or an attempt at voter identification. In the Board's view, voter identification on the ballot would permit undue pressure to be exerted on employees. The Board urges that any attempt by a voter to identify himself on the ballot gives rise to an implication that the employee is complying with threats or inducements of one of the parties to the election. The Board's ruling appears of dubious validity in disenfranchising eligible voters, as the voter's name need not be disclosed by the Board to either of the parties. However, it is unnecessary for us to decide whether any ballot with the name of a voter written on it should be excluded because in the present case the remaining two ballots should have been counted under our decision in Roberts Door and Window Co. v. NLRB, 540 F.2d 350 (8th Cir. 1976).
In Roberts Door we held that a ballot which was unmarked on the printed side but had the word "No" written on the blank reverse side should have been counted as a "No" vote. Today, we reaffirm our holding in Roberts Door as giving effect to the only voter intention reasonably to be divined from the situation. The fact that a voter misunderstands the instructions for marking his ballot due to poor reading skills or the excitement of the situation does not justify disenfranchising that voter. The Fourth and Fifth Circuits have held that a vote against union representation must be counted where a ballot is marked with the word "No" on the reverse side of the printed ballot. NLRB v. Tobacco Processors, Inc., 456 F.2d 248 (4th Cir. 1972); NLRB v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970). The Second Circuit has held that a ballot with the word "No" written on the "Yes" side of the ballot should be counted as a "No" vote. Mycalex Division of Spaulding Fibre Co., Inc. v. NLRB, 481 F.2d 1044, (2d Cir. 1973).
The Board's policy has been to allow a ballot if there is a clear expression of preference, regardless of the irregularity of the mark on the ballot. Knapp-Sherrill Co., 171 N.L.R.B. 1547 (1968). This policy has been consistently upheld by the courts as noted in the above citations. Also, as a matter of fairness in carrying out the Board's function to allow the workers a free and unfettered choice in employee representation, the Board should make every effort to give effect to the voters' intent. For the democratic processes to work to maximum efficiency each eligible employee should be allowed to vote and should have his vote counted if its meaning can reasonably be ascertained. This the Board has not done in this case. The voters' intentions here are clearly expressed and there appears to be no cogent reason why the unambiguous intent of the voters should not be honored.
In keeping with this authority and our prior decision in Roberts Door, we hold that the National Labor Relations Board erred in refusing to count as " No" votes the ballots with the word "No" written on the reverse side or in the "Yes" square of the ballot. With the addition of these "No" votes, the vote in the union representation election was tied, and Wrape Forest did not commit an unfair labor practice by refusing to recognize and bargain with the United Furniture Workers of America, AFL-CIO.
Enforcement of the order of the National Labor Relations Board is denied.
Although the issue is narrow, a plenary statement of facts is warranted.
Wrape Forest Industries, Inc. of Little Rock, Arkansas (Company) refused to recognize and bargain with the United Furniture Workers of America, AFL-CIO (Union), which the National Labor Relations Board had certified as the exclusive bargaining representative of the Company's employees following a Board election. The Board found by such refusal that the Company had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 158(a)(1) and (5).
On August 3, 1977, a representation election was conducted at the Company. One hundred seventy-four employees voted in the election. The tally of ballots showed that 84 votes were cast for representation by the Union and 79 votes were cast against, with several ballots either challenged or declared void. The Company filed objections to the election. After an investigation the Board's Regional Director overruled the objections. A revised count of ballots showed 85 votes for representation by the Union and 83 votes against. The Company's objections to the revised count were overruled and the Union was certified as the employees' bargaining representative. The Company then filed a timely request for review with the Board specifically relating to three irregularly marked ballots which were declared void. The Board denied the request for review.
Thereafter the Company refused to bargain with the Union, whereupon the Regional Director issued a complaint alleging that the Company refused to bargain in violation of the National Labor Relations Act. In its answer the Company admitted its refusal to bargain with the Union but contested the validity of the Board's certification of the Union as its employees' bargaining representative. Upon a motion for summary judgment filed directly with the Board by the general counsel, the Board issued its decision granting the motion, finding that the Company had committed unfair labor practices in refusing to bargain with the Union. This application by the Board for enforcement of its order followed.
At issue is the validity of the three irregularly marked ballots declared void:
(1) The first void ballot was marked with an "X" in the "No" square, but contained the first and last name of an eligible voter written on either side of the square containing the "X".
(2) The second void ballot had "No" written in the "Yes" block on the face of the ballot.
(3) The third was marked "No" on the blank reverse side of the ballot; it was not marked on the printed side.
The Board concedes that the ballot marked "No" on the blank reverse side of the ballot is identical to the irregular ballot involved in Roberts Door & Window Co. v. NLRB, 540 F.2d 350 (8th Cir. 1976). By a 2-1 vote this court ruled that the Board had abused its discretion in voiding an identically marked ballot. The Board urges, however, that we need not count this ballot since the other two ballots are clearly irregular and invalid.
We find no abuse of discretion in the Board's invalidating the ballot containing the name of an eligible voter. The cases are uniform rejecting any ballot which contains markings that might identify the voter. NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712, 718 (10th Cir. 1964); NLRB v. National Truck Rental Co., 99 U.S.App.D.C. 259, 263, 239 F.2d 422, 426 (1956), Cert. denied, 352 U.S. 1016, 77 S.Ct. 561, 1 L.Ed.2d 547 (1957); Semi-Steel Casting Co. v. NLRB, 160 F.2d 388, 392 (8th Cir.), Cert....
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