Ruan Transport Corporation v. National Labor Relations Board

The Honorable Jane E. Magnus-Stinson of the Southern å
District of Indiana, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1883 & 11-2058
RUAN TRANSPORT CORPORATION,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
No. 13 CA 46555
ARGUED OCTOBER 19, 2011—DECIDED MARCH 19, 2012
Before FLAUM and MANION, Circuit Judges, and MAGNUS-
STINSON, District Judge.å
MANION, Circuit Judge. Following a vote by the em-
ployees of a truck transportation company named Ruan
Transport, the National Labor Relations Board certified

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2 Nos. 11-1883 & 11-2058
a local union to be the representative for Ruan’s employ-
ees. Ruan now petitions this court to reverse the Board’s
decision, while the Board cross-petitions us to enforce
its decision. The dispute turns on whether a ballot with
irregular markings—the deciding vote in the elec-
tion—should be counted. Because we conclude that it
was not an abuse of discretion for the Board to find that
the challenged ballot indicates the clear intent of the
voter, we affirm the Board’s decision certifying the union.
I.
Ruan is a truck transportation company that employs
truck drivers and warehouse spotters. In February 2010,
the Teamsters Local 705 union filed a representation
petition seeking to be the union representative of the
drivers working at Ruan’s Castle Metal facility near
Chicago. Another union, Teamsters Local 710, was also
interested in representing Ruan’s employees. As a result
of the representation petition, the National Labor Rela-
tions Board conducted an election. On the ballot, Ruan’s
workers were able to mark a choice for representation
by Local 705, a choice for representation by the inter-
vening union Local 710, or a choice for neither. The initial
results of the election were twelve votes for Local 705,
eleven votes for Local 710, no votes for neither, and two
challenged ballots. After a stipulation from the parties,
one of the challenged ballots was opened and counted,
giving a final revised tally of twelve votes for Local 705
and twelve votes for Local 710.
Because of the tie, a run-off election by mail became
necessary. Beginning May 14, 2010, ballots were printed

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Nos. 11-1883 & 11-2058 3
on bright pink paper and mailed to all voters. On each
ballot were two boxes, one for Local 705 and one for
Local 710. Each ballot also had the printed instruction to
“mark an ‘X’ in the square of your choice.” Finally, at the
bottom of each ballot was the instruction, “If you spoil
this ballot return it to the Board Agent for a new one.”
On June 2, the votes were tallied. Local 705 and Local
710 received fourteen votes each, with two challenged
ballots. One ballot was challenged because it was cast
by an ineligible voter—a person who had resigned from
employment with Ruan before the date of the election.
The challenge was sustained by the Hearing Officer
reviewing the election, and that finding was adopted
by the Board. This ballot is not at issue on appeal.
It is the second challenged ballot that is at issue—a
ballot with markings in both the box for Local 705 and
the box for Local 710. The original ballot was submitted
to this court as an exhibit on appeal, and we have exam-
ined it. (A copy of the ballot is included in this opinion
as Appendix A.) In the left-hand box, the one for Local 705,
there is a clear, heavily marked “X” in black ink filling
the entire box, with no additional markings. In the right-
hand box, the one for Local 710, there is a faintly visible
“X” in black ink filling the box—the “X” is partially
smudged and partially scratched out. Also, the “X” in
the right-hand box has been shaded or colored over
by what appears to be a pink or purple highlighter with
an ink color that is similar, but slightly darker, than the
color of the pink ballot paper. As a result of these supple-
mental markings, the paper inside the box has been

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4 Nos. 11-1883 & 11-2058
darkened to a pink-purple color that does not match
the bright pink of the rest of the paper.
Ruan challenged the ballot, arguing that it should be
deemed void because the intent of the voter was unclear.
The Hearing Officer reviewing the election overruled
Ruan’s challenge, concluding that the voter had at-
tempted to obliterate his marking in the Local 710 box
and had “clearly and unambiguously” expressed an
intent to vote for Local 705. Ruan and Local 710
appealed this ruling, but a three-member panel of the
Board affirmed the decision. This gave a tally of fifteen
votes for Local 705 and fourteen votes for Local 710.
With a majority of the ballots in favor of Local 705,
the Board certified Local 705 as the exclusive collective
bargaining representative for Ruan’s employees.
After this union certification, Local 705 sought to
bargain with Ruan. Ruan disputed the validity of the
Board’s certification, and it refused to recognize or
bargain with Local 705. “Refusing to bargain is the only
way for an employer to get judicial review of an NLRB
decision upholding an election and certifying a union.”
NLRB v. AmeriCold Logistics, Inc., 214 F.3d 935, 937 (7th
Cir. 2000). As a result, Local 705 filed an unfair-labor-
practice charge, and the Board’s General Counsel issued
a complaint that Ruan’s refusal to bargain with Local 705
violated Section 8(a)(5) and (1) of the National
Labor Relations Act. See 29 U.S.C. § 158(a)(1), (5). Ruan
admitted that it refused to bargain, but argued that
Local 705’s certification as union representative was
improper. The Board granted summary judgment

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Nos. 11-1883 & 11-2058 5
against Ruan, finding Ruan in violation of the Act and
ordering it to recognize Local 705 as the lawful bar-
gaining representative for Ruan’s employees. Ruan then
appealed to this court for review of the Board’s decision,
while the Board filed a cross-application to this court
in order to seek enforcement of its decision.
II.
“We may review the Board’s certification decision once
the Board has determined that an unfair labor practice
has occurred.” NLRB v. E.A. Sween Co., 640 F.3d 781, 784
(7th Cir. 2011). As the Supreme Court has explained,
“Congress has 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 (1946). That means that “our review of
the Board’s decision to certify a collective bargaining
agent following an election is extremely limited.” NLRB
v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991).
We always “presume the validity of a Board-supervised
election and will affirm the Board’s certification of a
union if that decision is supported by substantial evi-
dence.” AmeriCold Logistics, Inc., 214 F.3d at 937.
As a preliminary matter, Ruan claims that the union
certification was improper because of a due process
violation on the part of the Hearing Officer and the
Board, based on their allegedly incomplete review of the
record and their failure to inspect the original ballot. But
there is nothing in the record to support Ruan’s position.

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6 Nos. 11-1883 & 11-2058
It is evident from the Hearing Officer’s description of
the ballot that the Hearing Officer reviewed the actual
ballot and not a photocopy as supposed by Ruan. And
there is nothing in the record to indicate that the three-
member panel of the Board did not properly review the
entire record when it affirmed the Hearing Officer’s
decision. In its order, the Board declared that it had
reviewed the record, and this decision has a “presump-
tion of regularity.” NLRB v. Jasper Chair Co., 138 F.2d 756,
758 (7th Cir. 1943). So we can quickly dismiss this argu-
ment and move to Ruan’s central argument: that the
decision to certify Local 705 is not supported by sub-
stantial evidence because it is impossible to determine
the clear intent of the voter from the challenged ballot’s
irregular markings.
“The Board’s policy—and the rule in this circuit—is to
count ballots when the voters’ intent is clear, despite
irregularities in the manner in which the ballots have
been marked. We give deference to the Board’s inter-
pretation of a ballot and will reverse only for abuse
of discretion.” AmeriCold Logistics, Inc., 214 F.3d at 939
(internal citations omitted). Neither the fact that a
ballot has irregular markings, nor the fact that a ballot
instructs the voter to obtain a new ballot if the ballot
is spoiled, are reasons to invalidate the ballot. Instead,
“the Board’s longstanding policy is to give effect to voter
intent whenever possible. Thus the Board will count a
ballot where, despite an irregularity in the manner in
which it has been marked, it clearly expresses the voter’s
intent.” Brooks Brothers, Inc., 316 N.L.R.B. 176, 176 (1995)
(internal citations omitted).

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Nos. 11-1883 & 11-2058 7
This principle is illustrated by the Board’s decision in
Brooks Brothers. In that case, the ballot had an “X” in the
“no” box. Id. There was also an apparent “X” marked in
the “yes” box, but it had been scratched over with addi-
tional pencil markings. Id. The Board concluded that
the voter’s intent was clearly expressed—that he or she
had “effectively and clearly obliterated” the “X” in the
“yes” box and left an “unmistakable” “X” in the “no”
box—and, therefore, the voter had intended to vote
“no.” Id.
A similar example can be found in the Board’s decision
in Abtex Beverage Corp., 237 N.L.R.B. 1271 (1978). In that
case, there was an “X” in both the “no” and “yes” boxes,
but the “X” in the “no” box had been scratched over
with circular markings. Id. at 1271. The Board found
that because the voter could not erase his ink mark in
the “no” box, he had attempted to obliterate the mark
by making the circular markings, leaving clear his intent
to vote “yes.” Id.
In contrast to Brooks Brothers and Abtex Beverage is the
Board’s earlier decision in Mercy College, 212 N.L.R.B. 925
(1974), which offers the strongest support for Ruan’s
argument that the Board’s decision to accept the ballot
in the case before us is not based on substantial evi-
dence. In Mercy College, the challenged ballot had an “X”
in the “yes” box, but apparently in the “no” box there
was a discernible “X” that was heavily shaded over. Id.
at 925. In that case, a two-person majority of the Board
ruled that the intent of the voter was “not free from
doubt” because “the markings in either of the designated

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8 Nos. 11-1883 & 11-2058
The third Board member on the panel dissented, finding that 1
it was reasonable to conclude that the voter had intended
to obliterate the “X” in the “no” box. Mercy College, 212 N.L.R.B.
at 926.
squares, absent the marking in the other square, would
be considered a clear indication of the intent of the voter.”
Id. A similar case in support of Ruan’s position is1
Sadler Bros. Trucking & Leasing Co., 225 N.L.R.B. 194 (1976).
In Sadler, one box on the ballot had an “X” while the
other box was completely blacked in. Id. at 196. Citing to
the Mercy College decision for support, the Board simply
stated that the voter’s intention “was not free from
doubt,” and accordingly, deemed the ballot void. Id.
It is important to note that in the Brooks Brothers case,
the Board considered the Mercy College case and char-
acterized it as an instance where “the Board found that
the shading added to one side of the ballot was
inadequate to show that an attempt to obliterate that
choice had occurred.” Brooks Brothers, Inc., 316 N.L.R.B. at
176. The question for us, then, is whether it is possible
to discern a clear expression of the voter’s intent based
on the ballot’s irregular markings. We have reviewed
the original ballot, and we find that it is possible.
As we described above, the “X” in the Local 710 box
is partially smudged and partially scratched out, and it
has been colored over with a highlighter that closely
matches the color of the ballot paper. This distinguishes
the case from the facts in Mercy College and Sadler, as this
is not a situation where the shading “was inadequate

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Nos. 11-1883 & 11-2058 9
to show that an attempt to obliterate that choice had
occurred.” Brooks Brothers, 316 N.L.R.B. at 176. Here, the
voter obviously attempted to rub out the “X” and then
colored over it with a highlighter similar in color to that
of the ballot paper in order to minimize the appearance
of the marking in the Local 710 box. Alongside this at-
tempt to obliterate the marking in the Local 710 box, the
voter left a distinct, heavily-marked “X” in the Local 705
box, made with multiple pen strokes. Despite the
ballot’s irregularities, the intent of the voter in favor
of Local 705 is clear; thus, the Board did not abuse its
discretion when it counted the ballot. See AmeriCold
Logistics, Inc., 214 F.3d at 939.
III.
For these reasons, we affirm the Board’s decision certi-
fying Local 705 as the union representative of Ruan’s
employees. Under Section 8(a)(5) and (1) of the National
Labor Relations Act, Ruan is required to bargain with
Local 705.

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10 Nos. 11-1883 & 11-2058
APPENDIX A
3-19-12

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