Ballot Scribbles May Change Outcome of Union Election

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By Lawrence E. Dubé

A Teamster local’s election win at an Indiana warehouse may slip away after a federal appeals court ruling June 20 ( Hanson Cold Storage Co. v. NLRB , 2017 BL 210293, 7th Cir., No. 16-3617, 6/20/17 ).

The decision shows that irregular markings on a single ballot can change the result of a close contest over union representation.

A National Labor Relations Board official certified that employees of Hanson Cold Storage Co. voted 19-17 for union representation, but the ruling by the U.S. Court of Appeals for the Seventh Circuit puts the election outcome in doubt.

The NLRB erred in counting one ballot as a vote for Teamster Local 142 where the voter’s intent “absolutely cannot be inferred from the marks on the ballot,” the court said.

The NLRB will now have to resolve another disputed ballot to determine whether the union won the election or lost in an 18-18 tie.

Irregular Ballot Tied Up Election

“The Seventh Circuit got it right,” Hanson’s lawyer, Donald J. Vogel of Scopelitis, Garvin, Light, Hanson & Feary P.C. in Chicago told Bloomberg BNA. The lawyer said that “at a minimum, the voter’s intent was never clear” and the board should have voided the ballot on the day of the election. A request for comment by Local 142 was not immediately answered.

The NLRB’s standard ballot asked, “Do you wish to be represented for purposes of collective bargaining by International Brotherhood of Teamsters Union Local 142?” Voters were instructed to “Mark an ‘X’ in the Square of Your Choice,” either one labeled “Yes” or one labeled “No.”

Judge Michael S. Kanne wrote for the court that the company and union disagreed about whether to count a ballot that had an apparent X drawn in, but also well outside, the Yes box. The ballot also had diagonal markings that Kanne called “scribbles” over the Yes box. Nothing was marked in or near the No box. The ballot is reproduced in the court’s opinion.

Citing a 1982 board decision, an NLRB acting regional director said that because the voter’s markings were only in and around the Yes box, the voter presumably intended to cast the ballot in favor of Local 142.

Court Says Vote Couldn’t Be Counted

Kanne said the theory wasn’t persuasive. Writing that “the markings matter in these cases,” the court said the scribbling over the voter’s original X “are not merely stray marks but easily could (and maybe should under the circumstances) be interpreted as an outright attempt to void the voter’s vote.”

Remanding the case to the NLRB, the court said that the regional office now must resolve a separate dispute about Lawrence Kelly. Kelly was on a medical leave of absence at the time of the election, but Local 142 challenged his eligibility to vote. When the board counted the unknown voter’s ballot, it decided it didn’t need to resolve Kelly’s eligibility.

However, the NLRB will now need to resolve the challenge to Kelly’s ballot. If he was eligible to vote and voted for Local 142, the union will be certified. However, if his ballot is counted and he opted against union representation, the vote would be 18-18, depriving Local 142 of the majority it needs to win bargaining rights for the Hanson employees.

Judges Joel M. Flaum and David F. Hamilton joined in the opinion.

Vogel argued the case for Hanson Cold Storage Co. NLRB attorney Molly Sykes in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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