United States Court of Appeals For the Seventh Circuit
Labor — ballots
Where a ballot was marked twice, but the mark in one box was covered with highlighter the same color as the paper, the ballot was properly counted.
“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 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 attempt 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.”
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board, Manion, J.