National Labor Relations Board v. A. G. Parrott Company

JAMES DICKSON PHILLIPS, Circuit Judge,

dissenting:

During the vote count following a small, 32-voter representation election, two ballots *216 show up with possible invalidating irregularities. Each possible irregularity is separately revealed while the supervising Board agent is taking the ballots from the ballot boxes and sorting them into “yes” and “no” piles for tallying. Each is acted upon by the agent before proceeding further in his sorting, and of course before the final tally is made.

One, marked for the company, is seen by the agent to bear the signature of a voter. The cast of this ballot, but not the signature, is seen by company and union representatives. After some discussion, the agent sets this ballot aside as void under a general Board rule invalidating all signed ballots. Sorting proceeds.

The other, marked for the union, is not marked as are all others by the traditional “x” or cheek mark, but by a mark like a slightly canted letter “c.” The company representative objects to this ballot on the basis that it is not appropriately marked. After some discussion, the agent rules that it is a valid “yes” vote and proceeds.

When, following sorting, the resulting thirty-one ballots are counted, there are sixteen votes for the union, fifteen for the company. As things have developed, had the “c” vote for the union not been counted, or the signed ballot for the company been counted, the election would have been won by the company rather than the union.

Inevitably, legal challenge ensues. The Board considers the company’s objections to the agent’s handling of these two ballots, and upholds his action in respect of each. Declining, as had the agent, to reveal the identity of the voter who signed the invalidate ballot, the Board verifies the fact of its signature by in camera inspection.

The case is presented to us for review of the Board’s administrative determination overruling the company’s objections and certifying the union as the exclusive bargaining representative by virtue of the election results. The question in effect is whether by reason of the handling of these two administrative problems in the processing of ballots, an otherwise regular representation election shall be set aside by judicial review.

Our scope of review is exceedingly narrow: “The conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse.” NLRB v. Olson Bodies, Inc., 420 F.2d 1187 , 1189 (2d Cir. 1970). This reflects the fact that Congress had deliberately “entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A. J. Tower Co., 329 U.S. 324, 330 , 67 S.Ct. 324, 328 , 91 L.Ed. 322 (1946).

Of course this cannot be thought to confine us to rubber stamping any and all Board actions in conducting representation elections. We have, and have freely exercised, the power to determine that “glaring discrimination or abuse” has taken place, or that there is such a likelihood that abuse of the election process has occurred that the Board must conduct searching factual inquiry into a possibility sufficiently suggested to us. E.g., Newport News Shipbuilding & Dry Dock Co. v. NLRB, 594 F.2d 8 (4th Cir. 1979). But neither can it be thought to empower us simply to second-guess exercises of administrative judgment which we cannot fairly characterize as involving abuse or discrimination. We do not review for mere exercises of poor or questionable judgment against a standard of what we would have done had it been our assigned task — which it is not — to administer representation elections under the National Labor Relations Act. In my view our power should never be thought to extend to the solomonic expedient of ordering a new election simply because of vague uneasiness about the wisdom of particular policies or administrative determinations 1 which in *217 retrospect can be seen to have tipped the scales in a close election. 2 In such cases, it seems to me particularly important that we concentrate our inquiry upon the context in which the policy was laid down or the action taken, though of course with the understanding as of that time that it might be decisive in a close election. If it would pass muster then as a rationally supportable choice between hard alternatives, not arbitrary, capricious, abusive or discriminatory as a matter of our considered judgment, then we should let stand even that administrative choice which all of us involved in the judicial review would consider simply wrong.

On this basis, I cannot see either of the administrative determinations under challenge here as abusive or discriminatory exercises of the discretion given the Board and its agents. The majority agrees that counting the “c” marked ballot could not be so considered. We disagree then as to the action on the signed ballot. Under my view our inquiry as to this should be whether, at the time the agent made his determination to void it, this was a rational choice between the possible alternatives or an arbitrary, capricious, patently discriminatory choice. To me it seems quite clear that it must be counted the former rather than the latter.

The rationality, hence the nonarbitrariness, of the choice can best be measured against the company’s specific contention on the point. The company does not contest the general rule, born of the statutory requirement that representation elections be by secret ballot, 29 U.S.C. § 159 (c)(1), that signed ballots are void. It argues, however, that because of the peculiar circumstances, either its representatives should have been allowed to inspect the ballot to verify that the writing on it was a signature, or the signed ballot should have been counted.

As we were advised by Board Counsel on oral argument, the normal procedure for dealing with a signed ballot would be for the agent to cover the vote and show the union and company representatives the signature. Here, however, the agent did not notice that the ballot had been signed until the cast of the vote had been revealed. The problem created by this inadvertent revelation had no happy solution. Had the agent allowed the company’s counsel to see the signature he would have revealed not only the identity of the voter but his vote. By refusing to allow the ballot’s inspection, however, the agent put the company in the position of having to accept his assertion and the Board’s later in camera determination that the ballot was signed. The choice between revelation and nonrevelation was admittedly a hard one, but I cannot see the nonrevelation choice as an irrational, arbitrary one.

The company argues alternatively that since this ballot was kept secret, the vote should be counted. Again, the agent’s decision, upheld by the Board, both to void and not to disclose voter identity seems to me not an arbitrary one, abusive of administrative discretion, under the circumstances.

First, the Board might reasonably conclude that deviations from the rule on the basis of such chance occurrences would inject intolerable uncertainty into election procedures. Results would turn on fortuitous events such as the fact that here the *218 cast of the vote was revealed to observers before the agent noticed the existence of a voiding signature. A basically absolutist approach to a voting procedure rule so fundamental and sp well understood by all interested parties does not of itself bespeak administrative arbitrariness. Rather, it seems wholly justified as a rational means for insuring order and certainty of consequences in the procedures.

Second, and more importantly, the purpose of the rule is not merely to prevent the parties from learning the identity of the voter, but to prevent the voter from attempting to reveal it. The latter focus of the rule is demonstrated in several cases in which the identity of the voter became known, but not as the result of efforts by the voter. In Abbott Laboratories, Ross Laboratories Division v. N.L.R.B., 540 F.2d 662 (4th Cir. 1976), an employee revealed the marking on his ballot as he placed it in the ballot box. Because the revelation had apparently been inadvertent, this court found no error in counting the vote. Id. at 665 n.1.

In International Union of Electrical, Radio and Machine Workers v. N.L.R.B., 418 F.2d 1191 (D.C. Cir. 1969), the name of one employee was written on the outside of the envelope containing his ballot. Under the peculiar circumstances of the case both the union and the employer knew that that employee had voted for representation by the union. Nonetheless, the court held that the Board could not count that employee’s vote until it had made a factual determination that it was not the employee who had written his name on the envelope, or that he had not done so improperly to identify his ballot. It did not matter that the employee’s vote was in fact known:

The point of the rule is to eliminate all ballots which the voter appears to have tried to identify as his own, giving rise to the implication that he may be complying with the threats or satisfying the inducements of one of the parties to the election. As the Board says in its brief, ballots are disqualified where “the voter apparently wanted to be identified with his vote.” (Emphasis by the Board.)

Id. at 1202 .

As these cases reveal, the rule’s legitimacy does not rest alone upon the maintenance of secrecy of ballots so that it can be disregarded once secrecy is assured by other means. It rests as well upon the need to prevent or at least discourage efforts by employees to signal their votes for whatever reason. The Board and its agents might reasonably act on the assumption that this latter purpose can only be served by consistent application of the sanction of voiding all ballots intentionally identified by voter name.

Here, no suggestion has been made that the signed ballot was not intentionally signed by the voter. Accordingly, the Board did not abuse its administrative power in treating the ballot as void notwithstanding the fact that the identity of the voter was not revealed to either party in interest.

I would grant enforcement, and so respectfully dissent.

. The majority is to some extent concerned about the refusal of both the agent and the Board to reveal the voter’s signature to allow verification by the company that it had actually *217 occurred, and the company now suggests that the Board failed adequately to safeguard this ballot. But the company did nothing — so far as I can tell — to invoke the available administrative procedures for challenging the ballot which would have provided safeguards. Neither has it invoked available appellate procedures that would have permitted our in camera confirmation of the fact of signature as determined in camera by the Board. I am bound to conclude that there is no genuine dispute on the matter.

. As opposed to situations such as that revealed in Kal-Equip Co. v. NLRB, No. 77-1526 (6th Cir., Nov. 21, 1979) (order denying enforcement), cited by the majority, where the integrity of the whole election process might have been jeopardized by a delayed notice of the election. In such a situation a new election might well be the appropriate and only remedy for the Board’s arbitrariness in allowing the election to proceed. We have no such suggestion of wholesale irregularity of the election here.