National Labor Relations Board v. Manhattan Corporation, Manhattan Guest House, Inc. , 620 F.2d 53 ( 1980 )

RANDALL, Circuit Judge:

This case is before us on the application of the National Labor Relations Board (the Board) for enforcement of its order that Respondent, the Manhattan Corporation, Manhattan Guest House, Inc., (the Home), cease and desist from refusing to bargain collectively with the Service Employees International Union, Local No. 275, AFL-CIO (the Union).

On June 23, 1978, a representation election was held on the Home’s premises. Ballots were cast by 93 of the approximately 106 eligible voters. Of the 93 ballots cast, 43 were votes for representation by the Union; 42 were votes against representation; 5 were challenged ballots; and 3 were declared void by the Board. The challenges to the five ballots have been sustained at an earlier stage in these proceedings, and those challenges are not before us on appeal. The only issue on appeal is the validity of the three voided ballots.

The Home contends that all three voided ballots clearly express the intent to vote against representation by the Union. Because the margin of the Union’s victory was one, if any one of the voided ballots is counted as a vote against representation, the Union failed to receive a majority of the votes cast, and enforcement of the Board’s bargaining order must be denied.

All three of the voided ballots were marked only on the back of the ballot. On the face of the ballot appears the question:

Do you wish to be represented for purposes of collective bargaining by

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 275, AFL-CIO?

Below the question there is a square under the word “YES” on the left side of the ballot, and one under the word “NO” on the right side of the ballot. The ballot directs the voter to “MARK AN ‘X’ IN THE SQUARE OF YOUR CHOICE.”

The voters casting two of the voided ballots marked their respective X’s on the back of their ballots. The X’s appear on the “NO” side of the ballots. The third voided ballot contains only the word “No” written on the back of the ballot. We hold that the ballot with the word “No” written on the back should not have been voided, but should have been counted as a vote against representation by the Union. Because that ballot is enough to affect the outcome of the election, we do not consider whether the Board properly voided the other two ballots.

In NLRB v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970), we held that ballots containing no markings on their faces, but only the word “No” on their backs, were not void, but should be counted as votes against representation. The ballots at issue in Titche-Goettinger were apparently identical to the ones at issue here. Like this election, the Titche-Goettinger election involved only one union, and thus the ballots presented a simple yes-or-no choice. In Titche-Goettinger we said:

General Counsel for the Board contends that the Acting Regional Director properly determined that “the marking on the ballot on the reverse side is too radical a departure from the accepted norm in marking ballots to permit conjecture as to the voters’ intent.” Such a conclusion is hardly consistent with the admitted Board policy of attempting to give effect to the voters’ intent whenever possible. See Western Electric Company, Incorporated, 97 N.L.R.B. 933; N. L. R. B. v. Whitinsvilie Spinning Ring Co., 1 Cir. 1952, 199 F.2d 585.

The three contested ballots unmistakably show an unambiguous, legible “NO,” albeit its appearance on the blank side of the form. Additionally, as already indicated, 2 of the voters whose ballots were voided voluntarily submitted affidavits to the Regional Director, declaring their intention to vote against the Union. The intent to reject union representation is clear, considering that the only question asked on the ballot is, “Do you wish to be represented for purposes of collective bargaining by RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO.” Accordingly, the 3 votes should have been recorded for the Employer.

433 F.2d at 1048. We are bound by Titche-Goettinger to deny enforcement.

We note that two other circuits apply the rule to which we adhere today. See NLRB v. Wrape Forest Indus., 596 F.2d 817 (8th Cir. 1979); Roberts Door & Window Co. v. NLRB, 540 F.2d 350 (8th Cir. 1976); NLRB v. Tobacco Processors, Inc., 456 F.2d 248 (4th Cir. 1972) (citing Titche-Goettinger).

ENFORCEMENT DENIED.