results were improper or that certification is unsupported by substantial evidence in the record operates a refrigerated warehouse in hobart indiana and teamsters local one forty two filed an r c petition seeking to represent a group of those employees at that facility there was a lection held on february twenty ninth leap day last year and the election there were thirty seven votes eighteen were cast for the union seventeen votes were cast for the employer and we had two challenges it issued today is really one challenge on the therefore it should be void if there was a number of proceedings before the board the regional director took an offer proof from the parties as whether that ballot should be counted that regional director relied upon a case  bakery to determine that in fact as long as there is if there are irregular markings that therefore that's not sufficient if all the markings are contained within one of the boxes the we requested review of that certification then by the regional director and the labor more chose not to review it they determined that there was no issues and what they said is it raises no substantial issues review so as a result of that we believe this court should review this case not on the abuse of discretion standard that the board would assert but rather as to whether there was substantial evidence to support the decision of the regional director that that decision by the board where they refused to review it that in the self was not reviewable so what happened then was that the the local union sent a letter to hansen demanding that they what we would argue is that this court to review the ballots on a substantial evidence basis which is whether such relevant evidence as there is a reasonable mind might accept is adequate to support the conclusion of the board again would you agree mr vogel that the the the the rule that was applied by the border by the regional director namely markings and only one of the boxes unlike for example your issues that we've seen elsewhere but that  rule is neutral as between unions and employers i would it would have been reasonable in this case it certainly is ironic because that the problem with the kaufman decision is that they didn't attach the ballot issue in that case so what we're left with is the exact words of the case which says that they will regarding mark in only one box despite some irregularity or we don't know what the irregularity is the board had the opportunity in this case where you want us so i'm not sure i'm sure i think judge hamilton that it's you know a rubbing out i at first i looked at it to see if maybe it was somebodies initials which then if he was marking it and personalizing it that would have avoided it but it certainly looks like a you know you look at the ruan transport case which this court decided in two thousand and twelve there's a similar where there's a obliteration there somebody tried to highlight one of the votes with the same color as the pink ballot and then put an x in the other that he had originally placed in this case and barely mark the other and clearly mark the other one you have a before the courts find about clearly marking the other one they're all agreeing that the original vote is obliterated that's the that's  the the first part of the analysis that the courts make and that the board should have made in all those cases is that the original vote is obliterated when they get to the one that is clearer and in this case  argument is that by a blitter rating it by looking at it the regional director should have looked at it and determined that it was in fact of void ballet no choice about the voter changed his mind and again that's consistent with the other cases where there are markings in both boxes i think the board had an opportunity to clarify that they chose not to instead they decided not to review it at all and by the time that  comes before them on the employers refusal to bargain at that point they are rubber stamping what the what the when is the regional directors already done remind me when the election was february twenty ninth of one thousand two thousand sixty so delayed bargaining well if you could look certainly from that side we have not bargained for over here correct because of the employer doesn't feel that has an obligation to because if you void this ballot you please the court i'm elise thanks for the national labor relations board and we see can force one of the board to order the board here did not abused its discretion in overruling the company's challenge to the regularly marked ballot and counting it as a vote for the union accordingly the board properly certified the union and the company has violated the act by refusing to recognize and bargain contrary to the company's claims factual findings of the board argued under substantial evidence by i appreciate that but but what if one of we have a situation which made her here where there's a decision to vote and then to not vote but just give the example where the x was mark week and then it was scratched up why isn't it also reasonable that all of the individual chose not to vote why isn't that a possibility especially the dewberry small election we haven't got hundreds of people you know just a few people so that some fans are just pressure you know both sides lawyer employee why wouldn't it be reasonable to say this voter said i wanted to vote yes and i changed my mind the board of commons addressed that direct issue prior to that in san joaquin the board reviewed markings like this to trying to and if they spoil their ballot the thing can get a new ballot from the border agent exactly and so in a case where an employee wishes to cancel out their vote or simply decides not to vote the employee has the opportunity to and so this is called into question was the voter actually certain about their vote or are they trying to say i don't know about this time cancelling it and in that case the board to find that it was  out which marking records that's impossible to tell in this case and one option is that it's gushing out another option is that he was made x first and i was emphasizing it and yet another option is that he had his ballot he was in a rush he puts it down he marks and yes then he reads the directions he needs an x puts a big x there turned it in there are there are numerous presumption carry with it's speculation so yes i would argue that it does it does not here there's a clear indication of the voter intent and this presumption is for the sake of not only standardizing valid interpretation and not only is it reason viable by cottons as being a reasonable interpretation but it's also a way to avoid unnecessarily disenfranchising voters like this for challenges similar to the one in the case at hand there's only one or no isn't the best way to ish and sure that it doesn't impact noble sure respectfully i disagree here on the board could adopt a read more rigid policy regarding its ballots such as saying that you need an x where x we're going to avoid anything else but the word has not done so because important policy considerations the board emphasizes the need to try to discern voter intent when ever possible and to avoid unnecessarily disenfranchising voters and so we balance that those interests with interest such as avoiding speculation and coffins here and using coffins doesn't point speculation as to whether is this a a mark out or is it an emphasis and it boyd that's just an franchising and as mentioned actually would be speculation for the board to accept the company's argument and claim that this is crossing out the vote that would be making a decision as to the intent of the voter so is that the board's position using the kaufman presumption if one box is completely clear then in the other box there's anything let's say just a question mark that's an indication i think that would be arguable and that would be argue right argument against the presumption and so if the board applied the presumption the union or the employer whoever was affected could try to rebut that for example i mean as i let me ask you this i guess is the presumption thank you i think the points being raised are indeed ones that require the board to do a review is to determine what the voter's intent is well but if what you were compelled to apply the  presumption doesn't matter seemingly from the board's decision long something's in one box well nothing is on the other box that carries the day for the board and i think that's why the board's wrong in the end it's that blanket decision to hold the presumption was only markings in one box this court and sue products reviewed about where that the guy put a smiley face and one of the boxes and they look to see what the intent of that was ok and not just a stray mark and it didn't really impact the intent of the voter but the court looked at what was the intent or the count of my book it counted as a vote because they were able to tell what the intent of those marks for it and in this case if