Bangor Water District vs. Maine Labor Relations Board, No. CV-80-191, affirming 80-A-02. Aff'd by 427 A.2d 973 (Me. 1981). STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss Civil Action Docket No. CV-80-l91 BANGOR WATER DISTRICT, : : Plaintiff : : vs. : DECISION AND JUDGMENT : MAINE LABOR RELATIONS : BOARD, : Defendant : This is a Rule 80B appeal by the Plaintiff concerning a decision of the Defendant dismissing an appeal of the Plaintiff to the Defendant of a decision of Defendant's Executive Director certifying an election under 26 M.R.S.A. 967 of a bargaining agent. The election was properly held January 14, 1980. There were 23 members of the bargaining unit eligible to vote, 22 ballots were cast in all, 11 for the bargaining agent, and 10 against. One ballot was invalidated by the Executive Director because instead of marking the ballot with a cross or check mark as directed on the ballot the voter wrote in the square under the legend "I desire no representation" the word "No". After hearing on agreed statement of facts the Defendant found their Executive Director correct in voiding [-1-] ____________________________________________________________________ the ballot and in not counting it for either side. This left the vote 11 for and 10 against representation and therefore, the bargaining agent was certified having a majority. 26 M.R.S.A. 967(2). The Plaintiff maintains the ballot should have been counted as against representation thereby giving a tie vote. The Plaintiff can only prevail if the ballot as a matter of law should be so counted because all questions of fact decided by the Defendant are final in the absence of fraud. No fraud is suggested or alleged in this case. Baker Bus Service, Inc. v. Edward W. Keith et al Me., _____ A2d________ (July 14, 1980). There is a certain principle which has evolved from Maine election law which ought to apply to any dispute concerning a secret ballot. This principle is that a ballot must not contain any distinguishing mark. This principle has been adopted by the Legislature in mandating secret bargaining agent elections and implemented by the Defendant in prohibiting the counting of any ballot which might reveal the voter's identity. Any other rule only invites duress, intimidation, or fraud in secret balloting. Some distinguishing marks which have been the basis for rejecting ballots are a capital "R", "O.K.", "Geo. H." -2- ___________________________________________________________________ and "Pittengill". Frothingham v. Woodside, 122 Me. 525, 534. Whether a given mark is distinguishing is ordinarily a question of fact unless the question is so clear that reasonable persons cannot honestly disagree. Id. at 533. Opinion of the Justices, Me. 369, A2d 233, 245 (1977). Bartlett v. McIntire, 108 Me. 161, 172 (1911). On the facts in this appeal, that is, that contrary to directions the voter wrote in "No" rather than a check mark or cross, is at least a question of fact and not a question of law in favor of the Plaintiff. And under the Defendant's clearly manifested intent rule, a finding of fact usually has to be made by the fact finding tribunal which, of course, is the Defendant in Bargaining Agent elections. Opinion of the Justices, Me. 369 A2d 233 (1977). 26 M.R.S.A. 968(3). Defendant's Decision and Order, dated March 13, 1980 (Exhibit A to the Complaint). It therefore follows that the Plaintiff has not demonstrated that the contested ballot should be counted as a matter of law. Wherefore the Plaintiff's Rule 80B appeal is DENIED, and the Order of the Defendant dated March 13, 1980 is AFFIRMED, and the certification dated January 14, 1980 by the Executive Director of the Maine Labor Relations Board that Council 74, American Federation of State, County, and Municipal Employees, AFL - CIO shall represent as Bargaining Agent, the Maintenance, -3- ___________________________________________________________________ Operations, and Services unit of the Bangor Water District, Bangor, Maine, is AFFIRMED. Dated: August 12, 1980. /s/__________________________ H. T. Slisby II Justice, Superior Court -4- ___________________________________________________________________