The Honorable Jane E. Magnus-Stinson of the Southern 

District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1883 & 11-2058

RUAN TRANSPORT CORPORATION,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS 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 46555

ARGUED OCTOBER 19, 2011—DECIDED MARCH 19, 2012

Before FLAUM and MANION, Circuit Judges, and MAGNUSSTINSON, District Judge.

MANION, Circuit Judge. Following a vote by the employees of a truck transportation company named Ruan

Transport, the National Labor Relations Board certified
2 Nos. 11-1883 & 11-2058

a local union to be the representative for Ruan’s employees. Ruan now petitions this court to reverse the Board’s

decision, while the Board cross-petitions us to enforce

its decision. The dispute turns on whether a ballot with

irregular markings—the deciding vote in the election—should be counted. Because we conclude that it

was not an abuse of discretion for the Board to find that

the challenged ballot indicates the clear intent of the

voter, we affirm the Board’s decision certifying the union.

I.

Ruan is a truck transportation company that employs

truck drivers and warehouse spotters. In February 2010,

the Teamsters Local 705 union filed a representation

petition seeking to be the union representative of the

drivers working at Ruan’s Castle Metal facility near

Chicago. Another union, Teamsters Local 710, was also

interested in representing Ruan’s employees. As a result

of the representation petition, the National Labor Relations Board conducted an election. On the ballot, Ruan’s

workers were able to mark a choice for representation

by Local 705, a choice for representation by the intervening union Local 710, or a choice for neither. The initial

results of the election were twelve votes for Local 705,

eleven votes for Local 710, no votes for neither, and two

challenged ballots. After a stipulation from the parties,

one of the challenged ballots was opened and counted,

giving a final revised tally of twelve votes for Local 705

and twelve votes for Local 710.

Because of the tie, a run-off election by mail became

necessary. Beginning May 14, 2010, ballots were printed
Nos. 11-1883 & 11-2058 3

on bright pink paper and mailed to all voters. On each

ballot were two boxes, one for Local 705 and one for

Local 710. Each ballot also had the printed instruction to

“mark an ‘X’ in the square of your choice.” Finally, at the

bottom of each ballot was the instruction, “If you spoil

this ballot return it to the Board Agent for a new one.”

On June 2, the votes were tallied. Local 705 and Local

710 received fourteen votes each, with two challenged

ballots. One ballot was challenged because it was cast

by an ineligible voter—a person who had resigned from

employment with Ruan before the date of the election.

The challenge was sustained by the Hearing Officer

reviewing the election, and that finding was adopted

by the Board. This ballot is not at issue on appeal.

It is the second challenged ballot that is at issue—a

ballot with markings in both the box for Local 705 and

the box for Local 710. The original ballot was submitted

to this court as an exhibit on appeal, and we have examined it. (A copy of the ballot is included in this opinion

as Appendix A.) In the left-hand box, the one for Local 705,

there is a clear, heavily marked “X” in black ink filling

the entire box, with no additional markings. In the righthand box, the one for Local 710, there is a faintly visible

“X” in black ink filling the box—the “X” is partially

smudged and partially scratched out. Also, the “X” in

the right-hand box has been shaded or colored over

by what appears to be a pink or purple highlighter with

an ink color that is similar, but slightly darker, than the

color of the pink ballot paper. As a result of these supplemental markings, the paper inside the box has been
4 Nos. 11-1883 & 11-2058

darkened to a pink-purple color that does not match

the bright pink of the rest of the paper.

Ruan challenged the ballot, arguing that it should be

deemed void because the intent of the voter was unclear.

The Hearing Officer reviewing the election overruled

Ruan’s challenge, concluding that the voter had attempted to obliterate his marking in the Local 710 box

and had “clearly and unambiguously” expressed an

intent to vote for Local 705. Ruan and Local 710

appealed this ruling, but a three-member panel of the

Board affirmed the decision. This gave a tally of fifteen

votes for Local 705 and fourteen votes for Local 710.

With a majority of the ballots in favor of Local 705,

the Board certified Local 705 as the exclusive collective

bargaining representative for Ruan’s employees.

After this union certification, Local 705 sought to

bargain with Ruan. Ruan disputed the validity of the

Board’s certification, and it refused to recognize or

bargain with Local 705. “Refusing to bargain is the only

way for an employer to get judicial review of an NLRB

decision upholding an election and certifying a union.”

NLRB v. AmeriCold Logistics, Inc., 214 F.3d 935, 937 (7th

Cir. 2000). As a result, Local 705 filed an unfair-laborpractice charge, and the Board’s General Counsel issued

a complaint that Ruan’s refusal to bargain with Local 705

violated Section 8(a)(5) and (1) of the National

Labor Relations Act. See 29 U.S.C. § 158(a)(1), (5). Ruan

admitted that it refused to bargain, but argued that

Local 705’s certification as union representative was

improper. The Board granted summary judgment
Nos. 11-1883 & 11-2058 5

against Ruan, finding Ruan in violation of the Act and

ordering it to recognize Local 705 as the lawful bargaining representative for Ruan’s employees. Ruan then

appealed to this court for review of the Board’s decision,

while the Board filed a cross-application to this court

in order to seek enforcement of its decision.

II.

“We may review the Board’s certification decision once

the Board has determined that an unfair labor practice

has occurred.” NLRB v. E.A. Sween Co., 640 F.3d 781, 784

(7th Cir. 2011). As the Supreme Court has explained,

“Congress has entrusted the Board with a wide degree

of discretion in establishing the procedure and safeguards

necessary to insure the fair and free choice of bargaining

representatives by employees.” NLRB v. A. J. Tower Co.,

329 U.S. 324, 330 (1946). That means that “our review of

the Board’s decision to certify a collective bargaining

agent following an election is extremely limited.” NLRB

v. Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991).

We always “presume the validity of a Board-supervised

election and will affirm the Board’s certification of a

union if that decision is supported by substantial evidence.” AmeriCold Logistics, Inc., 214 F.3d at 937.

As a preliminary matter, Ruan claims that the union

certification was improper because of a due process

violation on the part of the Hearing Officer and the

Board, based on their allegedly incomplete review of the

record and their failure to inspect the original ballot. But

there is nothing in the record to support Ruan’s position.
6 Nos. 11-1883 & 11-2058

It is evident from the Hearing Officer’s description of

the ballot that the Hearing Officer reviewed the actual

ballot and not a photocopy as supposed by Ruan. And

there is nothing in the record to indicate that the threemember panel of the Board did not properly review the

entire record when it affirmed the Hearing Officer’s

decision. In its order, the Board declared that it had

reviewed the record, and this decision has a “presumption of regularity.” NLRB v. Jasper Chair Co., 138 F.2d 756,

758 (7th Cir. 1943). So we can quickly dismiss this argument and move to Ruan’s central argument: that the

decision to certify Local 705 is not supported by substantial evidence because it is impossible to determine

the clear intent of the voter from the challenged ballot’s

irregular markings.

“The Board’s policy—and the rule in this circuit—is to

count ballots when the voters’ intent is clear, despite

irregularities in the manner in which the ballots have

been marked. We give deference to the Board’s interpretation of a ballot and will reverse only for abuse

of discretion.” AmeriCold Logistics, Inc., 214 F.3d at 939

(internal citations omitted). Neither the fact that a

ballot has irregular markings, nor the fact that a ballot

instructs the voter to obtain a new ballot if the ballot

is spoiled, are reasons to invalidate the ballot. Instead,

“the Board’s longstanding policy is to give effect to voter

intent whenever possible. Thus the Board will count a

ballot where, despite an irregularity in the manner in

which it has been marked, it clearly expresses the voter’s

intent.” Brooks Brothers, Inc., 316 N.L.R.B. 176, 176 (1995)

(internal citations omitted).
Nos. 11-1883 & 11-2058 7

This principle is illustrated by the Board’s decision in

Brooks Brothers. In that case, the ballot had an “X” in the

“no” box. Id. There was also an apparent “X” marked in

the “yes” box, but it had been scratched over with additional pencil markings. Id. The Board concluded that

the voter’s intent was clearly expressed—that he or she

had “effectively and clearly obliterated” the “X” in the

“yes” box and left an “unmistakable” “X” in the “no”

box—and, therefore, the voter had intended to vote

“no.” Id.

A similar example can be found in the Board’s decision

in Abtex Beverage Corp., 237 N.L.R.B. 1271 (1978). In that

case, there was an “X” in both the “no” and “yes” boxes,

but the “X” in the “no” box had been scratched over

with circular markings. Id. at 1271. The Board found

that because the voter could not erase his ink mark in

the “no” box, he had attempted to obliterate the mark

by making the circular markings, leaving clear his intent

to vote “yes.” Id.

In contrast to Brooks Brothers and Abtex Beverage is the

Board’s earlier decision in Mercy College, 212 N.L.R.B. 925

(1974), which offers the strongest support for Ruan’s

argument that the Board’s decision to accept the ballot

in the case before us is not based on substantial evidence. In Mercy College, the challenged ballot had an “X”

in the “yes” box, but apparently in the “no” box there

was a discernible “X” that was heavily shaded over. Id.

at 925. In that case, a two-person majority of the Board

ruled that the intent of the voter was “not free from

doubt” because “the markings in either of the designated
8 Nos. 11-1883 & 11-2058

The third Board member on the panel dissented, finding that 1

it was reasonable to conclude that the voter had intended

to obliterate the “X” in the “no” box. Mercy College, 212 N.L.R.B.

at 926.

squares, absent the marking in the other square, would

be considered a clear indication of the intent of the voter.”

Id. A similar case in support of Ruan’s position is 1

Sadler Bros. Trucking & Leasing Co., 225 N.L.R.B. 194 (1976).

In Sadler, one box on the ballot had an “X” while the

other box was completely blacked in. Id. at 196. Citing to

the Mercy College decision for support, the Board simply

stated that the voter’s intention “was not free from

doubt,” and accordingly, deemed the ballot void. Id.

It is important to note that in the Brooks Brothers case,

the Board considered the Mercy College case and characterized it as an instance where “the Board found that

the shading added to one side of the ballot was

inadequate to show that an attempt to obliterate that

choice had occurred.” Brooks Brothers, Inc., 316 N.L.R.B. at

176. The question for us, then, is whether it is possible

to discern a clear expression of the voter’s intent based

on the ballot’s irregular markings. We have reviewed

the original ballot, and we find that it is possible.

As we described above, the “X” in the Local 710 box

is partially smudged and partially scratched out, and it

has been colored over with a highlighter that closely

matches the color of the ballot paper. This distinguishes

the case from the facts in Mercy College and Sadler, as this

is not a situation where the shading “was inadequate
Nos. 11-1883 & 11-2058 9

to show that an attempt to obliterate that choice had

occurred.” Brooks Brothers, 316 N.L.R.B. at 176. Here, the

voter obviously attempted to rub out the “X” and then

colored over it with a highlighter similar in color to that

of the ballot paper in order to minimize the appearance

of the marking in the Local 710 box. Alongside this attempt to obliterate the marking in the Local 710 box, the

voter left a distinct, heavily-marked “X” in the Local 705

box, made with multiple pen strokes. Despite the

ballot’s irregularities, the intent of the voter in favor

of Local 705 is clear; thus, the Board did not abuse its

discretion when it counted the ballot. See AmeriCold

Logistics, Inc., 214 F.3d at 939.

III.

For these reasons, we affirm the Board’s decision certifying Local 705 as the union representative of Ruan’s

employees. Under Section 8(a)(5) and (1) of the National

Labor Relations Act, Ruan is required to bargain with

Local 705.
10 Nos. 11-1883 & 11-2058

APPENDIX A

3-19-12