HANSON COLD STORAGE COMPANY OF INDIANA d/b/a HANSON LOGISTICS v. National Labor Relations Board

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐3617 & 16‐3671
HANSON C OLD STORAGE C OMPANY OF I NDIANA d/b/a HANSON
LOGISTICS,
Petitioner/Cross‐Respondent,
v.
NATIONAL LABOR R ELATIONS BOARD,
Respondent/Cross‐Petitioner.
____________________
On Petition for Review and Cross‐Application for Enforcement of an
Order of the National Labor Relations Board.
No. 13‐CA‐178619.
____________________
A RGUED MARCH 28, 2017— D ECIDED J UNE 20, 2017
____________________
Before FLAUM, KANNE , and HAMILTON, Circuit Judges.
KANNE , Circuit Judge. Thirty‐seven employees of an Indi‐
ana employer voted in a union‐representation election. The
employer and the union disputed two of the votes, a suffi‐
cient number to affect the outcome of the election. The em‐
ployer argued that one vote should not count, claiming that
the voter’s intent could not be discerned from the ballot; the
union argued that another vote should not count, claiming

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2 Nos. 16‐3617 & 16‐3671
that the voter was not employed by the employer at the time
of the vote. The National Labor Relations Board rejected the
employer’s argument and counted the first disputed vote as
a vote in favor of representation. The Board then concluded
that the second disputed vote was no longer outcome de‐
terminative of the election. So it dismissed that dispute as
moot and certified the union.
The parties now contest the Board’s counting of the first
disputed vote, a dispute that turns on the intent of a voter
who produced a hopelessly unclear ballot. Because we find it
impossible to divine the voter’s intent from the face of the
ballot, we hold that the Board abused its discretion by count‐
ing that vote. We further hold that the Board erred by dis‐
missing as moot the union’s challenge to the second disput‐
ed vote.
I. BACKGROUND
Hanson Logistics is one of the leading providers of pub‐
lic‐refrigerated warehousing and transportation services in
the Midwest. It employs dozens of workers at its facilities in
Michigan and Indiana. On February 4, 2016, the Internation‐
al Brotherhood of Teamsters Union Local No. 142 filed a pe‐
tition to be the exclusive collective‐bargaining representative
for a subset of Hanson’s employees. (App. 5.) 1 Specifically,
Local 142 sought to represent Hanson’s “full‐time and regu‐
1 Throughout our opinion, we cite to the appendix in Hanson’s opening
brief. We include these citations in parentheses. Our reference to “App.”
in these citations refers to this appendix, and the first number following
that reference refers to the specific “Tab” in the appendix to which we
are referring. Any additional numbers included in these citations refer to
the specific page numbers within that Tab of the appendix.

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Nos. 16‐3617 & 16‐3671 3
lar part‐time warehousemen, dockworkers, pickers, runners,
team leads, inventory workers and maintenance workers
employed by [Hanson] at its facility currently located at 2201
Northwind Parkway, Hobart, Indiana 46342.” (App. 6 at 2.) 2
Pursuant to a stipulated election agreement between Hanson
and Local 142, on February 29, 2016, the Board conducted an
election at Hanson’s Hobart facility to determine whether
Local 142 would represent those employees. The notice of
election stated that “[a] majority of the valid ballots cast will
determine the results of the election.” (App. 6 at 1.) The bal‐
lot instructed each voting employee to “mark an ‘X’ in the
square of your choice.” (App. 6 at 2.)
Thirty‐seven employees each cast a ballot in the election.
Hanson and Local 142 did not dispute thirty‐five of those
ballots, eighteen cast in favor of Local 142’s representation
and seventeen cast against it. Instead, the parties disputed
the validity of the two other ballots. Hanson contested a vote
cast by an unknown voter (“Unknown Voter Ballot”), argu‐
ing that the unknown voter’s intent was unclear from the
markings on the ballot. And Local 142 contested a vote cast
by a voter named Lawrence Kelly (“Lawrence Kelly Ballot”),
arguing that Kelly was not a Hanson employee at the time of
the vote. Because the two disputed votes were outcome de‐
terminative of the election, the Board’s Field Examiner or‐
dered Hanson and Local 142 to submit offers of proof, in‐
cluding relevant legal authority, as to the votes’ validity.
2 Local 142 did not seek to represent Hanson’s “[d]rivers, WMS coordi‐
nators, office clerical employees and guards, professional employees and
supervisors.” (App. 6 at 2.)

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4 Nos. 16‐3617 & 16‐3671
Both parties complied with the Field Examiner’s order,
and the Board’s Acting Regional Director—Daniel Nelson—
considered the parties’ challenges. On March 25, 2016, Nel‐
son issued a decision overruling Hanson’s challenge to the
Unknown Voter Ballot. In so doing, Nelson counted the Un‐
known Voter Ballot as a vote in favor of Local 142’s represen‐
tation, increasing the vote count from 18–17 to 19–17 in favor
of Local 142’s representation. Because Local 142’s challenge
to the Lawrence Kelly Ballot was no longer outcome deter‐
minative, Nelson dismissed that challenge as moot. He then
certified Local 142 as the exclusive collective‐bargaining rep‐
resentative of the aforementioned subset of Hanson’s em‐
ployees. Hanson filed a request for review with the Board.
But on May 26, 2016, the Board summarily denied that re‐
quest, finding that Hanson raised “no substantial issues war‐
ranting review.” (App. 4.)
Nearly two weeks later, on June 6, 2016, Local 142 sent a
letter to Hanson requesting recognition of Local 142 as the
exclusive collective‐bargaining representative of the applica‐
ble subset of Hanson’s employees. Hanson responded in a
letter that it would “not recognize Local No. 142 as the rep‐
resentative of any of its employees” because it “believe[d]
that the Region incorrectly decided the challenged ballots
from the February 29, 2016 election.” (App. 15.) Three days
later, on June 20, 2016, Hanson filed a charge with the Board
alleging that Hanson “ha[d] failed to bargain in good faith
with the Union.” (App. 16.)
On July 12, 2016, the Regional Director issued a com‐
plaint against Hanson, alleging that Hanson had violated
section 8(a)(1) and (5) of the National Labor Relations Act—
29 U.S.C. § 158(a)(1), (5)—by refusing to recognize and bar‐

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Nos. 16‐3617 & 16‐3671 5
gain with Local 142. Hanson responded to the complaint by
again denying that Local 142 was the exclusive collective‐
bargaining representative. Counsel for the Board then filed a
motion to transfer proceedings to the Board and a motion for
summary judgment. On September 13, 2016, the Board is‐
sued an order affirming Nelson’s certification of Local 142 as
the exclusive collective‐bargaining representative and hold‐
ing that Hanson’s refusal to bargain with Local 142 consti‐
tuted an unfair labor practice. Hanson then filed a petition
for review of the Board’s decision in this court, and the
Board filed a cross‐application for enforcement of its order.
II. A NALYSIS
We begin with a note on our jurisdiction. An employer’s
path to judicial review of a Board’s decision upholding an
election and certifying a union is “circuitous.” N.L.R.B. v.
Serv. Am. Corp., 841 F.2d 191, 193 n.3 (7th Cir. 1988). Because
Board‐certification decisions are not immediately‐appealable
orders, an employer can obtain judicial review of them only
“in conjunction with an unfair labor practice order by the
Board,” which is immediately appealable. Heartland Human
Servs. v. N.L.R.B., 746 F.3d 802, 805 (7th Cir. 2014). Thus, an
employer who wants judicial review of a Board’s certifica‐
tion decision must first affirmatively refuse to bargain with
the Board‐certified union, “thereby exposing itself to an un‐
fair labor practice charge”; then wait for the union to file that
charge with the Board; and then wait for the Board to hold
that the employer committed an unfair labor practice by re‐
fusing to bargain with the union. Serv. Am. Corp., 841 F.2d at
193 n.3. Only then can we review the Board’s underlying cer‐
tification decision. Ruan Transp. Corp. v. N.L.R.B., 674 F.3d
672, 674 (7th Cir. 2012).

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6 Nos. 16‐3617 & 16‐3671
As discussed above, Hanson followed this procedure.
Hanson admits that it refused to bargain with Local 142 and
therefore conditionally admits to the charged unfair labor
practice; even so, Hanson continues to contest the validity of
the union’s certification. Because the Board found that Han‐
son had committed an unfair labor practice, we can review
Hanson’s underlying certification challenges. But our review
in these cases is limited: “[w]e presume the validity of a
Board‐supervised election and will affirm the Board’s certifi‐
cation of a union if that decision is supported by substantial
evidence.” N.L.R.B. v. AmeriCold Logistics, Inc., 214 F.3d 935,
937 (7th Cir. 2000). When the Board’s interpretation of a par‐
ticular outcome‐determinative ballot is at issue, as it is here,
“[w]e give deference to the Board’s interpretation of [that]
ballot and will reverse only for abuse of discretion.” Id. at
939.
Turning to the merits, Hanson argues that the Board
erred in two major respects. First, it argues that the Board
abused its discretion by counting the Unknown Voter Ballot
as a vote in favor of Local 142’s representation. Second, Han‐
son contends that the Board erred by dismissing as moot Lo‐
cal 142’s challenge to the Lawrence Kelly Ballot. The Board
seeks enforcement of its order. We first address Hanson’s ar‐
gument regarding the Unknown Voter Ballot before turning
to its argument regarding the Lawrence Kelly Ballot.
A. Unknown Voter Ballot
The official secret ballot used in Hanson’s representation
election contained a clear instruction: “mark an ‘X’ in the
square of your choice.” Beneath that instruction were two
boxes, one marked “Yes,” the other marked “No.” Nearly all
of the voters who participated in the election followed the

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Nos. 16‐3617 & 16‐3671 7
ballot’s simple instruction, marking an X in the box of their
choosing and including no other markings on the ballot. But
the anonymous voter who submitted the Unknown Voter
Ballot did not heed the instruction. Instead, that voter
marked a large “X”—which touched the “Yes” box but also
extended far outside of it—along with indecipherable scrib‐
bling both inside and outside of the box. It is unclear which
came first, the “X” or the scribbles, and the parties admit
that the voter’s intent in including the scribbles is unclear:
the voter may have included them either to void or to em‐
phasize the vote. Here is a picture of the Unknown Voter
Ballot for reference.
Despite this lack of clarity, Acting Regional Director Nel‐
son counted the Unknown Voter Ballot as a “Yes” vote in
favor of Local 142’s representation. In so doing, Nelson first
cited the “Board’s longstanding policy” of attempting “to
give effect to voter intent whenever possible.” (App. 12 at 2
(citing Hydro Conduit Corp., 260 N.L.R.B. 1352, 1352 (1982)).)
He then applied a presumption from a 1982 Board decision,

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8 Nos. 16‐3617 & 16‐3671
Kaufman’s Bakery, Inc., in which the Board “regard[ed] a
mark in only one box, despite some irregularity, as pre‐
sumptively a clear indication of the intent of the voter.” 264
N.L.R.B. 225, 225 (1982). In that decision, the Board reasoned
that,
When a ballot reveals a clear “X” almost entirely
contained within either the “Yes” box or the “No”
box and no irregular markings appear outside the
marked box, there can be little doubt but that the
voter intends his vote to be counted in favor of or
against, respectively, the designated labor organi‐
zation.
Id. Because the Unknown Voter Ballot contained markings in
only one box—the “Yes” box—Nelson applied Kaufman’s
Bakery and presumed that the unknown voter intended to
vote in favor of Local 142. The Board affirmed Nelson’s deci‐
sion.
Hanson argues that this was an abuse of discretion. We
agree. Both the Board’s overarching policy and the rule in
this circuit in ballot interpretation cases “is to count ballots
when the voters’ intent is clear, despite irregularities in the
manner in which the ballots have been marked.” Ruan
Transp., 674 F.3d at 675 (emphasis added) (quoting Amer‐
iCold Logistics, 214 F.3d at 939). As we and the Board have
noted, voter intent is the touchstone in these cases.
In addressing its policy “to give effect to voter intent
whenever possible,” the Board has stated that it “will count
a ballot where, despite an irregularity in the manner in
which it has been marked, it clearly expresses the voter’s in‐
tent.” Brooks Bros., Inc., 316 N.L.R.B. 176, 176 (1995) (empha‐
sis added); see also J.L.P. Vending Co., Inc., 218 N.L.R.B. 794,

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Nos. 16‐3617 & 16‐3671 9
795 (1975) (noting that the Board’s “object” in these types of
cases “has always been one of ascertaining the voter’s inten‐
tions”); Mercy College, 212 N.L.R.B. 925, 925 (1974) (“In find‐
ing a ballot to be valid the Board requires that the intent of
the voter in marking his ballot must be clearly expressed.”).
But “it is not the Board’s role to glean voter intent from am‐
biguous or contradictory markings on a ballot.” In re Daim‐
ler‐Chrysler Corp., 338 N.L.R.B. 982, 983 (2003). Thus, the
Board will not speculate “to divine the intent of a ballot that
is not clear,” or “to negate the intent of a ballot that is other‐
wise clear.” Id. Instead, when the voter fails to “ma[ke] his or
her preference clear” on the face of the ballot, then the ballot
“must be voided.” Id. (emphasis added); see also Weill’s Inc.,
108 N.L.R.B. 731, 734 (1954).
Here, rather than treat a seemingly unclear ballot as void,
the Board applied Kaufman’s Bakery to presume that the vot‐
er intended to vote. But we aren’t even convinced that Kauf‐
man’s Bakery should have been applied in this case. By its
terms, the presumption applies only when the ballot “re‐
veals a clear ‘X’ almost entirely contained within” one of the
boxes and “no irregular markings appear outside the
marked box.” Kaufman’s Bakery, 264 N.L.R.B. at 225. The “X”
that appears in the “Yes” box of the Unknown Voter Ballot
can hardly be described as “clear,” given that the scribbling
covers much of the “X.” Moreover, the “X” is not “almost
entirely contained within” the “Yes” box and much of the
scribbling—the “irregular markings” in this case—appears
outside of that box.
But even if we thought the presumption ought to apply
here, we think it is overcome by the circumstances. The
Board urges us to strictly apply Kaufman’s Bakery: it contends

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10 Nos. 16‐3617 & 16‐3671
that in every situation where there are markings in only one
box, we should presume that the voter intended to cast a
vote for that box. Thus, under this strict interpretation—and
as argued by the Board at oral argument—a ballot that con‐
tains only a question mark in one of the boxes and nothing
in the other box would have to be counted as a vote for the
box that contained the question mark. That can’t be right if
the Board’s overarching goal in these cases is to discern and
effectuate the voter’s intent: a ballot that contains only a
question mark provides absolutely no indication of how the
voter intended to vote. The same is true of a ballot that con‐
tains an “X” that may or may not have been scribbled out.
As the Board conceded at oral argument, the markings
matter in these cases. When, as here, the irregular markings
on the disputed ballot could reasonably be interpreted as an
attempt to void the ballot, those markings should not be ig‐
nored. Although the Board argues that it addressed this ex‐
act concern in Kaufman’s Bakery—in which the Board de‐
scribed as “unlikely” a voter’s strategy of attempting to can‐
cel his selection and cast a “no‐choice” vote by “drawing ir‐
regular marks over his original ‘X’”—it did so in reference to
“stray marks” that constituted “the slightest variance from
the normal manner of ballot marking” despite a clear indica‐
tion of the voter’s intent on that ballot. 264 N.L.R.B. at 225.
Here, as discussed above, the markings on the Unknown
Voter Ballot give no clear indication of the voter’s intent to
vote, and the scribbles are not merely stray marks but easily
could (and maybe should under the circumstances) be inter‐
preted as an outright attempt to void the voter’s vote. Simp‐
ly put, the Kaufman’s Bakery presumption is ill‐suited to deal
with situations like these, where voter intent absolutely can‐
not be inferred from the marks on the ballot.

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Nos. 16‐3617 & 16‐3671 11
In sum, we think it is impossible—with or without a pre‐
sumption—to determine the intent of the unknown voter in
this case. Nelson and the Board should have treated the Un‐
known Voter Ballot as void. We hold that their failure to do
so was an abuse of discretion.
B. Lawrence Kelly Ballot
Local 142 challenged the Lawrence Kelly Ballot on the
ground that Kelly—an employee of Hanson who had been
absent from work for at least seven months on approved
medical leave—was no longer a Hanson employee and was
therefore ineligible to vote in the election. Because Nelson
counted the Unknown Voter Ballot as a vote in favor of Local
142’s representation, he determined that Local 142’s chal‐
lenge to the Lawrence Kelly Ballot was no longer outcome
determinative of the election. As such, Nelson deemed that
challenge to be moot, and the Board affirmed this decision.
That too was an error.
As discussed above, the Unknown Voter Ballot should
not have been counted as a vote in favor of Local 142’s repre‐
sentation. Thus, the vote tally should have stood at 18–17,
with Local 142’s dispute to the Lawrence Kelly Ballot out‐
standing. Because employers win all ties in representation
elections, the Lawrence Kelly Ballot is outcome determina‐
tive. AmeriCold Logistics, 214 F.3d at 937 (“[L]ike a base run‐
ner who reaches the bag at the same time as the ball, a tie
goes to the company.”). Nelson and the Board should have
considered Local 142’s dispute to the Lawrence Kelly Ballot. 3
3 Although Nelson ultimately determined that Local 142’s challenge to
the Lawrence Kelly Ballot was moot, he did discuss the governing legal
(continued…)

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12 Nos. 16‐3617 & 16‐3671
III. CONCLUSION
For the foregoing reasons, we VACATE the Board’s certi‐
fication decision; DENY the Board’s cross‐application for en‐
forcement of its unfair‐labor practice order; and REMAND
for proceedings consistent with this opinion.
(…continued)
standard (and did hint at the likely result in this case) in a footnote of his
decision:
[T]he fundamental rule governing the eligibility of an
employee on sick or maternity leave, known as the “Red
Arrow test,” is that he or she is presumed to continue in
such status unless and until the presumption is rebutted
by an affirmative showing that the employee has been
discharged or has resigned.
(App. 12 at 2 n.1 (citing Red Arrow Freight Lines, 278 N.L.R.B. 965, 965
(1986)).).

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