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
             Plaintiff        :
vs.                           :          DECISION AND JUDGMENT
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
          After hearing on agreed statement of facts the
Defendant found their Executive Director correct in voiding

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
          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."

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,

Operations, and Services unit of the Bangor Water District,
Bangor, Maine, is AFFIRMED.
Dated:  August 12, 1980.
                                  H. T. Slisby II      
                                  Justice, Superior Court