State Ex Rel. American Federation, Etc. v. Hanson

Magnet, Justice. This case comes to the writer by reassignment. Petitioner below appeals from an order of the district court of Ramsey county quashing a writ of certiorari and dismissing proceedings for review of the action of the state labor conciliator. The AFL Local petitioned for certiorari, asserting that the labor conciliator, upon request of that Local, had made a preliminary investigation of a controversy for representation arising between the AFL and CIO unions as to an appropriate bargaining unit for employes of the Minneapolis General Hospital. Under the provisions of M. S. A. 179.16, the conciliator ordered an election to determine whether the employes wished to be represented by the AFL or the CIO. The election was thereupon held. At that election 4:00 ballots were cast. All parties concede that one ballot was void. Of the other 399 ballots cast, 199 were for CIO and 199 for AFL. The remaining one ballot creates the controversy here. This printed ballot reads in part as follows, with the letters in the squares having been inserted by the voter: *343 The labor conciliator, after receiving a report from the agent of the division of conciliation conducting the election and after a hearing, concluded that the contested ballot could be identified and therefore that it offended the requirement of a secret ballot. The conciliator thereupon rejected the ballot and dismissed the proceedings brought for investigation and certification of a representative, because neither union had secured a majority of the ballots which he considered valid. After issuance of the writ of certiorari, the district court conducted a hearing, at which the decision of the conciliator was challenged by the AFL and supported by the CIO. The court affirmed the action of the labor conciliator, dismissed the proceedings, and set aside the stay of proceedings below. Appellant assigns as error the district court’s affirmance of the conciliator’s order. It takes the position that the challenged ballot should be counted as a vote for AFL, contending that as a matter of law the ballot did not violate the rule of secrecy or fall within the rule relating to identifiable ballots; that the intention of the voter was clear; and that consequently the ballot should be counted for AFL. It contends that if correct rules of law had been applied to the facts the labor conciliator could not have found a tie vote. M. S. A. 179.16, subd. 2, reads as follows: “When a question concerning the representative of employees is raised by an employee, group of employees, labor organization, or employer the labor conciliator or any person designated by him shall, at the request of any of the parties, investigate such controversy and certify to the parties in writing, the name or names of the representatives that have been designated or selected. * .* * In any such investigation, the labor conciliator may provide for an appropriate hearing, and may take a secret ballot of employees or utilize any other suitable method to ascertain such representatives, but the labor conciliator shall not certify any labor organization which is dominated, controlled, or maintained by an employer. If the labor conciliator has certified the representatives as herein provided, he shall not be required to again consider the matter for a *344 period of one year unless it appears to him that sufficient reason exists.” (Italics supplied.) .The sole question in the case concerns the proper disposition of the one ballot not marked according to directions. There can be no question that the contested ballot which was marked “AFL” and “No” respectively in the squares opposite the choices between AFL and CIO unions expresses the intention of the employe voter. He should have expressed his intention by simply placing the proper mark in the square opposite his choice. But intent is not the sole issue here. In In re Colonial Sand & Stone Co. Inc. 10 LRRM 297, a case decided by the New York Labor Relations Board, a ballot on which an employe placed a “V” in the square instead of an “X” as required by the board’s rule was held void and not entitled to be counted. The board in its opinion stated: “* * * This may have expressed his intent, but that is not the sole issue. “Elections to be fair must be secret. Any mark on a ballot which distinguishes it is fatal. Whether a ballot is specially marked in order that it may afterwards be identified as having been cast by a particular person is not important. It is enough that it may [be] susceptible of being identified as such. * * * The ‘V’ used on this ballot distinguished it from the other ballots cast, which were all marked with an X’. Experience in conducting elections of this kind convinces the Board that to compel strict adherence to the requirement that an X’ be marked on ballots eliminates ex post facto exercise of the Board’s discretion, and is more likely to result in fair elections, free from suspicion or question.” So here, the ballot expressly gave the following direction prominently displayed: “Mark only one place,” which direction was disregarded. In International Nickel Co. Inc. 17 N. L. R. B. 458, 460, 5 LRRM 325, a decision by the National Labor Relations Board, the board stated: *345 “* * * the disputed ballots were not cast in the manner required by the rules of the election, although the election rules were prominently printed upon each ballot. These ballots were capable of identification and should not be counted.” See, also, Burlington Mills Corp. 56 N. L. R. B. 365, 14 LRRM 148. The opinion in Semi-Steel Casting Co. v. N. L. R. B. (8 Cir.) 160 F. (2d) 388, 392, quotes the following from Burlington Mills Corp. 56 N. L. R. B. 368: • “* * * To permit the counting of ballots which, regardless of specific instructions appearing thereon, nevertheless are signed or contain markings clearly identifying the voter, clearly would open the door to the exertion of influence such as to prevent the exercise of the voter’s free choice.” The markings on this ballot were such that the voter might be identified, and as stated in Elwell v. Comstock, 99 Minn. 261, 270, 109 N. W. 113, 698, 702, 7 L.R.A.(N.S.) 621, 9 Ann. Cas. 270: “* * * It is unnecessary that the mark be of such a character as to enable every person inspecting it to identify the voter. The purpose of the statute in prohibiting marks of identification is not wholly that of secrecy, but in part, perhaps mainly, to prevent the corruption of the voter, and to secure a free and untrammeled expression of the popular will. Any mark placed upon a ballot, therefore, by which the voter may be identified by any person, vitiates the ballot.” See, Pye v. Hanzel, 200 Minn. 135, 273 N. W. 611. Also, aside from the above, the conciliator had discretionary power to refuse to count the ballot because of the markings already described. The statute gives the conciliator wide discretion and latitude in the selection of a bargaining agent. This feature of the statute was commented upon in Warehouse Employees Union v. Forman Ford & Co. 220 Minn. 34, 18 N. W. (2d) 767. Under the statute, he may arrange for an election to aid him in the determination of a collective bargaining agent. He did so in this case. This procedure does not involve an election to public offlce, and decisions of this *346 court passing upon ballots with distinguishing marks may be very helpful, but not binding here. The conciliator was conducting this election to aid him. In his opinion, the ballot in question contained identifying markings, and therefore should not be counted. His finding is not arbitrary, oppressive, and unreasonable in view of the appearance of the ballot itself and the explicit instructions thereon. The wide discretion with which he is clothed was not abused. Order affirmed.