Bangor Water District and Council 74, AFSCME, No. 80-A-02, affirming the 
certification of the results of the Jan. 14, 1980 representation election.
Affirmed by CV-80-191 and by 427 A.2d 973 (Me. 1981).

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                              Case No. 80-A-02
                                                   [Issued:  March 13, 1980]
  and                           )                  DECISION AND ORDER
                                )                 ON VOID BALLOT APPEAL
EMPLOYEES, AFL-CIO              )
     This case comes to the Maine Labor Relations Board ("Board") by way of a
notice of appeal filed January 18, 1980 by counsel for the Bangor Water District
("Water District").  The Water District appeals a decision by the Board's Execu-
tive Director to void a ballot cast at a January 14, 1980 bargaining agent election
held for employees at the Water District.
     By way of a stipulation of facts and procedures submitted January 25, 1980,
the parties agreed to the relevant facts of the case, waived hearing and oral argu-
ment, and provided that their arguments would be submitted to the Board in briefs.
Briefs were filed by both parties.  The Water District is represented by Gerald E.
Rudman, Esq. and James A. Robinson, Esq., and Council 74, American Federation of
State. County and Municipal Employees ("Union") by H. Ross Ferrell, Jr.  After
receipt of the briefs, the Board proceeded to deliberate over the case, Alternate
Chairman Gary F. Thorne presiding, with Employer Representative Don R. Ziegenbein
and Alternate Employee Representative Harold S. Noddin.
     Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this case, and we conclude that this Board has jurisdiction to hear and
render a decision in this case pursuant to 26 M.R.S.A.  968(4).
                                 FINDINGS OF FACT
     Upon review of the entire record, the Board finds:
     1.  The Bangor Water District is a public employer as defined in
         26 M.R.S.A.  962(7), and is an aggrieved party within the mean-
         ing of 26 M.R.S.A.  968(4).  The Union is a labor organiza-
         tion within the meaning of 26 M.R.S.A.  968(4).
     2.  On January 14, 1980 the Board's Executive Director conducted
         a bargaining agent election for the members of the Maintenance,
         Operations and Service Bargaining Unit at the Water District.
         Printed on the ballots used at the election were two choices,
         reading:  "I desire to be represented by "COUNCIL 74, AFSCME,"
         and "I desire NO REPRESENTATION."  Printed below each choice
         was a rectangular box.  The following instructions for marking
         the ballot were printed on each ballot:  "Select your choice
         by placing an 'X' or '[checkmark]' in ONLY ONE of the boxes below," and
         "This is a SECRET BALLOT and must contain no marks other than
         an "X" or '[checkmark]' in one box."


     3.  Twenty-two of the 23 employees eligible to vote cast ballots at
         the election.  Eleven of the employees indicated by a "X" or
         "[checkmark]" that they desired to be represented by the Union, while 10
         employees indicated that they desired no representation.  The
         twenty-second voter wrote the word "No" in the box below the
         choice "I desire NO REPRESENTATION."  No "X" or "[checkmark]" or any
         other marking other than the word "No" appears on the ballot.
     4.  Upon examination of the ballots, the Executive Director decided
         pursuant to Rule 3.06(B) of the Board's Rules and Procedures that
         the ballot containing the word "No" was void.  The Executive
         Director consequently set the ballot aside, not counting it for
         either of the choices appearing on the ballot.  Having set the ballot
         aside, the Executive Director determined that 11 eligible voters had
         voted for the proposition that the Union would represent the bargain-
         ing unit, while 10 voters had voted for no representation.  The
         Executive Director accordingly certified that the Union had been
         elected the bargaining agent for the unit.
     The issue in this appeal is whether the Executive Director erred in deciding
that the ballot in question is void and of no effect.  This is a live issue be-
cause if the ballot in question was counted as a vote in favor of no representa-
tion, as the Water District urges it should be, then the vote would result in a
tie and the Union would not have received the majority of votes necessary for
certification.  After carefully considering the matter, we find that the Executive
Director was entirely correct in voiding the ballot.
     It is our policy that ballots be liberally construed in favor of validity.
Council 74, AFSCME v. Gardiner Water District, PELRB No. 75-11 (1974) 12-180
CMR Chapt. 3,  3.06(6).  This policy is tempered, however, by two rather obvious
          ". . . the Board will count all ballots where the voter's intent
           has been clearly manifested, even if the voter has not followed
           the proper designation procedure, provided that the mode of
           designation does not reveal the voter's identify."
NLRB v. Sauk Valley Manufacturing Co., 486 F.2d 1127, 1133 (9th Cir. l973).  Thus,
a ballot should be voided when the intent of the voter is not clearly manifest, or
when the marking on the ballot might reveal the voter's identity.  The fact that
one of the boxes on the ballot has been marked is not necessarily conclusive in
determining whether the ballot should be counted; the election officer must also
be certain that the marking clearly reveals the voter's intent while not revealing
the voter's identity.
     The ballot at issue here was properly voided on both of these grounds.  First,
the intent of the voter, in writing the word "No" in the box beneath the choice
"I desire NO REPRESENTATION," is not clear.  There are at least two reasonable
interpretations of the voter's use of the word "No."  The voter may have intended
to indicate, as argued by the Water District, that he did not desire representa-
tion.  Or he may have intended to indicate, as argued by the Union, a vote against
the no representation choice and in favor of the Union.  Contrary to the Water
District's argument, then, the voter's intent is far from being clear and unambigu-
ous, but is instead quite ambiguous.  Given this ambiguity, it is not our function


to speculate about the voter's "true meaning."  The voter's intent was unclear
and the ballot was properly voided.
     We find unpersuasive those federal court cases holding in essence that the
word "no" printed anywhere on the ballot, front or back, should be counted as a
vote against the union.  Mycalex Division of Spaulding Fibre Co. v, NLRB, 481 F.2d
1044 (2nd Cir. 1973); NLRB v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970).
It is significant that the question appearing on the ballots in these cases was
"Do you wish to be represented for purposes of collective bargaining by [the union]."
The word "no" written on the ballot in response to this question offers a much
clearer indication of intent than does the "no" which appears on the ballot at
issue here, where the choices offered were "I desire to be represented by "COUNCIL
74, AFSCME" and "I desire NO REPRESENTATION."  In any event, we prefer the National
Labor Relations Board's well-reasoned view of the matter, under which the NLRB
will not engage in speculation as to voter intent, but will instead invalidate im-
properly marked ballots.  See, e.g., Columbus Nursing Horme, Inc., 88 NLRB 825 (1971).
     The Executive Director also was correct in voiding the ballot because the un-
usual marking on the ballot could reveal the voter's identity.  The ballot at issue
was the only ballot of the 22 cast which had a word written on it.  This word
appeared despite the plain instruction on each ballot that the ballot "must con-
tain no marks other than an "X" or "[checkmark]" in one box."  In light of these circumstan-
ces, the ballot properly was voided:
          ". . . ballots cast in a manner at such variance with the norm
           always create the possibility that the voter intended to insure
           that one of the parties to the election finds out how he voted.
           While a ballot such as the one in this case does not patently
           disclose the identity of the voter, it is possible that such a
           device could be used by a party to the election to insure that
           an employee votes in a particular prearranged manner.  A device
           which can so easily be used to destroy the secrecy of represen-
           tation elections and lend encouragement to fraud, bribery or
           corruption cannot be sanctioned by the Board."  Columbus Nursing
           Home, supra at 826.
     In sum, we conclude that the Executive Director's decision to void the ballot
plainly was not "unlawful, unreasonable, or lacking in any rational factual basis,'
Teamsters Local 48 and City of Portland, MLRB Report of Appellate Review of Unit
Determination Hearing at 6 (Feb. 20, 1979) [78-A-10].  Indeed, the Executive Director's
action was entirely proper and consistent with the law.  We accordingly will
order that the Water District's appeal is dismissed, and that the Executive Director's
certification of the results of the January 14, 1980 election is affirmed.
     Based on the foregoing findings of fact and decision, and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
 968(4). it is ORDERED:
          1.  That the Bangor Water District's January l8, 1980 appeal
              is DISMISSED.

          2.  That the certification of the results of the January 14,
              1980 representation election is AFFIRMED.  Council 74,
              AFSCME is the certified bargaining agent for the Main-
              tenance, Operations and Service Unit of the Bangor Water

Dated at Augusta, Maine, this 13th day of March, 1980.

                                         MAINE LABOR RELATIONS BOARD

                                         Gary F. Thorne
                                         Alternate Chairman

                                         Don R. Ziegenbein
                                         Employer Representative

                                         Harold S. Noddin
                                         Employee Representative