Bangor Water District v. Maine Labor Relations Board, 427 A.2d 973 
(Me. 1981), affirming CV-80-191 and 80-A-02.

MAINE SUREME JUDICIAL COURT                 Reporter of Decisions
                                            Decision No. 2551
                                            Law Docket No. Pen-80-5l
                      BANGOR WATER DISTRICT
                     Argued January 13, 1981
                     Decided April 7, 1981
     On January 18, 1980, the members of the Maintenance,
Operations and Service Bargaining Unit of the Bangor Water
District voted on whether Council 74, American Federation of
State, County and Municipal Employees, should serve as their
bargaining agent.  The executive director of the Maine Labor
Relations Board, who supervised the election, set aside a chal-
lenged ballot.  The union won the election by one vote.  On the
Water District's appeal to the Board, the Maine Labor Relations
Board affirmed the executive director's certification, and the
Superior Court, Penobscot County, affirmed the Board's order.
The Water District now requests this court to reverse the lower
court and order the ballot counted.  We decline to do so and
affirm the judement.[fn]1
1.   In State v. Maine Labor Relations Board, Me., 413 A.2d 510
(1980), we held that Board is a proper party in proceedinqs
for review of its decisions.  There, the complaint also named the
employees' association as a defendant.  In Baker Bus Service, Inc.
v. Keith, Me., 416 A.2d 727 (1980), the complaint named as sole
defendants the individual board members in their official capacity,

     The ballots contained two choices:  "I desire to be repre-
sented by Council 74, AFSCME" and "I desire NO REPRESENTATION."
Directly under each choice was a large box.  The instructions
told the voter to select his choice by placing an "X" or "[checkmark]" in
one of the boxes and warned that the ballot must contain no other
marks.  Of twenty-three eligible voters, twenty-two cast ballots.
The executive director counted eleven votes for and ten against
representation.  Rather than containing the authorized cross or
check, the disqualified ballot had the word "No" written in the
box under the "no representation" choice.
     In affirming the executive director's certification of the
election results, the Board gave two grounds for disqualifying
the challenged ballot.  First, in light of the negative phrasing
of the choice "I desire no representation," the voter's intent
in answering "no" was ambiguous, and, the Board reasoned, it
should not speculate on what the vote could mean.  Second, the
unauthorized and unusual marking on the ballot could reveal the
voter's identity, especially since only that ballot of the twenty-
two cast contained an unauthorized mark.  The possibility of
identifying the voter, the Board concluded, could defeat the
although naming them individually was unnecessary.  M.R.C.P.
25(d)(2).  In Baker Bus the union appeared as intervenor.  In the
present case, only the Board is named as a defendant, although the
union was served with a summons and complaint pursuant to M.R.C.P.
80B(a).  In view of our disposition of this case, we need not be
concerned that the union has neither been named as a defendant nor
moved to intervene.

purpose of holdinq secret elections.  The Superior Court focused
on the second consideration, applying to it the principle from
general election cases that a ballot may not contain any dis-
tinguishing marks.  The court then concluded that whether the
mark was distinguishing was a question of fact on which it must
defer to the Board.
     The Water District premises its contentions on appeal on the
Board's policy, as stated in its regulations, that "ballots shall
be liberally construed in favor of validity."  M.L.R.B. Reg. ch. 3.
 6(b) (1978).  Accordingly, the Water District argues, because
there was no evidence that the ballot revealed the voter's identity,
the unauthorized word should not disqualify the vote.  Furthermore,
the Water District contends, the voter's intent to vote against
the union was clear and should be given effect despite "minor
irregularities in the voting method.  Therefore, it requests
that we find as a matter of law that the vote should be counted
against representation.
     Two considerations compel, us to decline to take this step.
First, although the parties cite cases concerning the validity
of ballots in general elections, we see the issue here to be one
of administrative law.  Consequently, our role in reviewing the
Board's decision is limited.  See Baker Bus Service, Inc. v.
Keith, Me., 416 A.2d 727 (198O).
     The Board is authorized to make procedural rules, 26 M.R.S.A.
 968(3) (Supp. 1980), and we should defer to the Board's inter-
pretation of those rules, provided its interpretation is reasonable.

The Board's rules for representational elections allow it to
disqualify ballots that "do not clearly reveal the intent of
the voter."  M.L.R.B. Reg. ch. 3  6(B) (1978).[fn]2  In this
election the ballot clearly instructed the voter how to register
his vote.  The voter failed to comply with those instructions.
The Board is entitled to require compliance with its rules,
especially where, as here, their purpose is to avoid the possi-
bility of ambiguity in voting.  Therefore, the Board may properly
disregard a noncomplying ballot unless the voter's intent is
unmistakably clear.
     Second, we must disagree with the Water District's conten-
tion that the voter's intention is unmistakably clear as a
matter of law.  The Water District urges us to treat the double
negative resulting from the "no" vote as a clear expression of
intent to vote against the union, pointing to the common usage
of double negatives to express negative desires as well as
2.   M.L.R.B. Req. ch. 3  6(B) states in full:
          Void Ballots - Ballots which have been mutilated,
     spoiled, marked with more than one choice, or which do
     not clearly reveal the intent of the voter may be con-
     sidered "void ballots" and, when determined as such,
     shall not be counted for or against any proposition
     appearing on the ballot, provided that ballots shall
     be liberally construed in favor of validity.  The
     original determination of "void ballots" status will
     be determined by the Executive Director or person duly
     designated by the Board to conduct the election and to
     supervise the counting of ballots.  Any party aggrieved
     by a "void ballot" ruling may appeal pursuant to  968,
     4,  979-G, 2, or  1028, 2, as appropriate.

the availability of the other choice on the ballot to vote for
representation.  We acknowledge that, although incorrect, double
negatives are frequently used in common speech to denote negative
statements.  We cannot hold as a matter of law, however, that 
an unmistakably clear intent to do so appears when the voter
ignores the ballot's instructions and writes "no" in response
to the statement "I desire no representation."  Instead, we
agree with the Board that two interpretations are possible.
The voter may have intended to vote against representation, as
the Water District contends.  Alternatively, he may have intended
to vote against the "no representation" choice and thus for the
union.  We cannot say that the second interpretation is irrational.
     Our review of the Board's findings is governed by 26 M.R.S.A.
 972, which makes its determination on question of fact final in
the absence of fraud.  See 26 M.R.S.A.  968(4) (Supp. 1980);
Baker Bus Service, Inc. v. Keith, Me., 416 A.2d 727, 730 (1980).
No fraud is alleged.  Therefore, we must affirm the judgment.
     The entry will be:
                                            Judgment affirmed.
All concurring.
Attorneys for Plaintiff:           Attorneys for Defendant:
Rudman & Winchell
Gerald E. Rudman, Esq. (orally)    Wayne W. Whitney, Esq. (orally)
Richard E. Byer, Esq.              Maine Labor Relations Board
Phillip D. Buckley, Esq.           State Office Building
84 Harlow Street                   Augusta, Maine 04333
P. 0. Box 1401
Bangor, Maine 04401