Fedex Home Delivery

National Labor Relations Board - Administrative Judge Opinions

Feb 16, 2007

01-RC-022034 (N.L.R.B. Feb. 16, 2007)

JD–14–07
Wilmington, MA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FEDEX HOME DELIVERY, A SEPARATE
OPERATING DIVISION OF FEDEX
GROUND PACKAGE SYSTEM, INC.,
Employer,
and Cases 1–RC–22034
1–RC–22035
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL UNION 25,
Petitioner.
For the Employer:
John W. Hoag III, Esq.
of Greenville, South Carolina
Michael J. Murphy, Esq.
of Washington, D.C.
For the Petitioner:
Gabriel O. Dumont Jr., Esq.
of Boston, Massachusetts
Michael A. Feinberg, Esq.
of Boston, Massachusetts
For the Regional Director:
Emily Goldman, Esq.
of Boston, Massachusetts
Don C. Firenze, Esq.
of Boston Massachusetts
ADMINISTRATIVE LAW JUDGE'S
REPORT ON OBJECTIONS
I. BACKGROUND
DAVID I. GOLDMAN, Administrative Law Judge. Pursuant to Section 9(c) of the National
Labor Relations Act (Act), the International Brotherhood of Teamsters Local Union No. 25
(Union or Teamsters) filed representation petitions in the above-referenced matters. On
September 20, 2006, the Regional Director of Region 1 for the National Labor Relations Board
JD–14–07
5
10
15
20
25
30
35
40
45
50
2
(Board) issued a Decision and Direction of Election in these matters.1 In it the following
employees of FedEx Home Delivery, a separate operating division of FedEx Ground Package
System, Inc. (FedEx or the Employer), were found to constitute separate units appropriate for
collective bargaining within the meaning of Section 9(b) of the Act:
In Case 1–RC–22034:
All full-time and regular part-time contractors and swing contractors employed by
the Employer at its 375 Ballardvale Street facility in Wilmington, Massachusetts,
but excluding temporary drivers, helpers employed by contractors, package
handlers, guards, and supervisors as defined in the Act.
In Case 1–RC–22035:
All full-time and regular part-time contractors and swing contractors employed by
the Employer at its 8 Jewel Drive facility in Wilmington, Massachusetts, but
excluding temporary drivers, helpers employed by contractors, package
handlers, guards, and supervisors as defined in the Act.
Elections in these units were conducted on October 20. The tally of ballots cast in Case
1–RC–22034 showed the following results:
Approximate number of eligible voters 14
Number of void ballots 0
Number of votes cast for Petitioner 10
Number of votes case against participating labor organization 2
Number of valid votes counted 12
Number of challenged ballots 2
Number of valid votes counted plus challenged ballots 14
The tally of ballots cast in Case 1–RC–22035 showed the following results:
Approximate number of eligible voters 26
Number of void ballots 0
Number of votes cast for Petitioner 14
Number of votes case against participating labor organization 6
Number of valid votes counted 20
Number of challenged ballots 5
Number of valid votes counted plus challenged ballots 25
II. THE OBJECTIONS
After the election, on November 24, FedEx filed five objections to conduct affecting the
results of the election in Case 1–RC–22034 and four such objections in Case 1–RC–22035. On
December 18, the Regional Director for Region 1 of the Board entered an order consolidating
the above-referenced cases, a report on objections, and ordered a hearing on Objections 2–5 in

1All dates hereafter refer to 2006 unless otherwise stated.
JD–14–07
5
10
15
20
25
30
35
40
45
50
3
Case 1–RC–22034 and 2–4 in Case 1–RC–22035. I conducted the hearing in Boston
Massachusetts on January 23 and 24, 2007. At the hearing, the Employer withdrew Objections
3 and 4 in Case 1–RC–22034, and Objection 3 in Case 1–RC–22035, leaving two extant
objections in each case as the basis for the Employer’s contention that the election results
should be set aside and new elections scheduled. These objections were:
Objection 2 (in Cases 1–RC–22034 and 1–RC–22035):
The Board’s Notice of Election includes a bold, large-print “warning”
specifically disclaiming Board participation or involvement in any defacement of
the document, as well as specifically asserting the Board’s neutrality in the
election process.1 On or about October 17, 2006, Petition abused the Board’s
commitment to neutrality by mailing to eligible voters a facsimile of the sample
ballot contained in the official Notice of Election that had been altered by the
insertion of an “X” in the box indicating the choice for the Petitioner and deleting
the Board’s statement of neutrality from the bottom of the Notice (see Exhibit 1).
The altered ballot thereby gave voters the misleading impression that the Board
favored the union in the election.
1The Notice of Election specifically states in large, bold lettering:
WARNING: THIS IS THE ONLY OFFICIAL NOTICE OF THIS ELECTION AND MUST NOT
BE DEFACED BY ANYONE. ANY MARKINGS THAT YOU MAY SEE ON ANY SAMPLE
BALLOT OR ANYWHERE ON THIS NOTICE HAVE BEEN MADE BY SOMEONE OTHER
THAN THE NATIONAL LABOR RELATIONS BOARD, AND HAVE NOT BEEN PUT THERE
BY THE NATIONAL LABOR RELATIONS BOARD. THE NATIONAL LABOR RELATIONS
BOARD IS AN AGENCY OF THE UNITED STEATES GOVERNMENT, AND DOES NOT
ENDORSE ANY CHOICE IN THE ELECTION.
The reference in the foregoing objection to Exhibit 1 is to a copy of the sample ballot
document mailed by the Union. A copy was attached to the Employer’s objections.
An original was entered into evidence at the hearing in this case as the second page
of Exhibits 2 and 3 to Joint Exhibit 1.

Objection 5 (in Case 1–RC–22034) and Objection 4 (in Case 1–RC–22035):
Petitioner interfered with employee free choice by mailing an ambiguous
handbill to eligible voters on or about October 15, 2006, indicating that it would
waive initiation fees for new members (see, Exhibit 2). As the handbill does not
make it clear that eligible voters who sit silent or advocate against union
representation during the campaign would also be exempt, the election was
tainted and must be set aside.
The reference in the foregoing objection to Exhibit 2 is to a copy of the document
referencing the initiation fee. A copy was attached to the Employer’s objections. An original
was entered into evidence at the hearing in this case as Exhibit 1 to Joint Exhibit 1.
The parties filed briefs on February 7, 2007. Based on the testimony at the hearing, my
assessment of the credibility of the witnesses and their demeanor, the documentary evidence,
and the entire record before me, as well as the briefs of the parties, I make the following
findings, conclusions, and recommendations.
JD–14–07
5
10
15
20
25
30
35
40
45
50
4
a. The mailing containing the marked sample ballot
The Employer objects to the Union’s mailing of literature that reproduced portions of the
Board’s official notice of election, specifically, the portion that included a sample ballot that the
Union marked with a handwritten, red X indicating a vote in favor of representation. Before
describing the Union’s mailing, a description of the Board’s official notice of election is in order.
The Board’s official notice of election (form 707) is a one-piece document, 25-1/2 x 14”,
that is supplied by the Board’s Regional Office and posted prior to Board representation
elections in conspicuous places at the voting site. While the official notice of election is of a
piece, it is comprised of three distinct parts or panels. The left 1/3 of the notice (as one faces
the notice) sets forth recitations and explanations under the heading of “General" relating to
topics such as the "Purpose of This Election," "Secret Ballot," "Eligibility Rules," "Special
Assistance," "Challenge[s] of Voters,” "Authorized Observers," and "Information Concerning
Election." The middle 1/3 sets forth the specific unit covered by the upcoming election and the
date, time, and place of the election, along with a sample ballot identifying the petitioner. This is
the only portion of the form that is not generic. It contains information specific to the election for
which the notice is being posted. The right 1/3 sets forth various rights of employees and
responsibilities of the Board, and provides examples of objectionable conduct by unions or
employers. Among other information, this panel states that “[t]he National Labor Relations
Board as an agency of the United States Government does not endorse any choice in the
election.”
Above and below these 3 panels of information, the official notice of election has a
legend running the width of the 25 inches at the top, in large print, that states "UNITED STATES
OF AMERICA * NATIONAL LABOR RELATIONS BOARD." On the following line, again across
all three panels, in even larger print is: "NOTICE OF ELECTION." Across the bottom of all 3
panels, in print smaller than the legend across the top, but bolded and larger than the text in the
3 panels, is the following: "WARNING: THIS IS THE ONLY OFFICIAL NOTICE OF THIS
ELECTION AND MUST NOT BE DEFACED BY ANYONE. ANY MARKINGS THAT YOU SEE
ON ANY SAMPLE BALLOT OR ANYWHERE ON THIS NOTICE HAVE BEEN MADE BY
SOMEONE OTHER THAN THE NATIONAL LABOR RELATIONS BOARD AND HAVE NOT
BEEN PUT THERE BY THE NATIONAL LABOR RELATIONS BOARD. THE NATIONAL
LABOR RELATIONS BOARD IS AN AGENCY OF THE UNITED STATES GOVERNMENT AND
DOES NOT ENDORSE ANY CHOICE IN THE ELECTION."
The Union’s sample ballot document that the Employer alleges to be objectionable was
mailed on or about September 16 to each bargaining unit employee listed on the Excelsior list
used in the elections.2 The document was mailed in an envelope with a Teamsters return
address and markings, and was accompanied in the envelope by two other 1-page documents.
Each of the 3 pages was 8-1/2 x 11.” One, on Local 25 letterhead, bears the Teamsters logo,
the name and position of Local 25’s two top officers, and the slogan “We WILL only Accept
Deliveries from UNION Carriers! All Other Deliveries Will Be Refused!” This page states in
large letters “SPECIAL NOTICE” and “Attention!” It states that the October 20 election will be a
“Secret Ballot Election!!!” and that FedEx managers (listing three of them by name) “will NOT
know how you voted.” This page of the mailing also states that supervisors and managers “will
not be allowed within 150 feet of the polling place during the election hours.” The bottom
portion of this page stated that “IT IS TIME TO GET THE RESPECT YOU DESERVE!” AND
“VOTE ‘YES’ FOR A BRIGHTER FUTURE FOR YOU AND YOUR FAMILY!” At the very

2Excelsior Underwear, 156 NLRB 1236 (1966).
JD–14–07
5
10
15
20
25
30
35
40
45
50
5
bottom of the page, the preprinted material continues setting forth the Local Union’s address,
telephone and fax number. A Teamsters’ logo watermark is visible in the paper.
A second page contained the marked sample ballot to which the Employer objects. This
page is a photocopy of the middle portion of the notice of election that contains a description of
the bargaining unit, the date, time, and place of the election, notification that the ballots will be
counted by the Board’s agent at the close of voting, the sample ballot, and language beneath
the sample ballot stating “DO NOT SIGN THIS BALLOT Fold and drop in ballot box. If you
spoil this ballot return it to the Board Agent for a new one.” Unlike the official notice of election,
in the one distributed by the Teamsters the sample ballot is marked with a handwritten X in red
marker, in the spot on the sample ballot indicating a vote in favor of representation. In addition,
unlike the official notice of election, where the word “SAMPLE” is printed across the face of the
sample ballot in blue outline, in the Union’s photocopy that text is in black outline but each letter
of the word “sample” is highlighted by hand with yellow marker.
The third page sent by the Union was a reproduction of the right 1/3 portion of the notice
of election. As discussed, supra, it lists various rights of employees under the Act, informs
employees of the Board’s responsibility to protect employee rights, and provides examples of
objectionable conduct by unions or employers. It also includes the statement that “[t]he National
Labor Relations Board as an agency of the United States Government does not endorse any
choice in the election.”
The reproduced portions of the notice of election mailed by the Union, described above,
fit within the borders of the 8-1/2 x 11” paper used in the mailing. However, the portions of the
legends on the official notice of election that run above and below the reproduced panels were
not reproduced.
b. The mailing containing the statement regarding initiation fees
The objected-to document referencing the absence of an initiation fee for new members
is a 1-page leaflet, mailed to employees on October 12, titled “Teamster Local 25 Union Dues.”
Beneath a photo of coins and currency, is a subtitle reading “WHAT DO WE DO WITH YOUR
UNION DUES?” Eight bullet points follow listing items such as paying business agents to
negotiate contracts, hiring lawyers as needed for representation, sending funds to the
Teamsters International Union, training classes, scholarships, financial support for community
service, and maintaining a union hall for union members’ use. The final bullet point on the list
(and slightly incongruous as it is not, like the other examples, a reference to something the
union expends dues on) states:
“There is not an initiation fee for new members.” (Original emphasis.)
III. CONCLUSIONS
In this case, “[i]t is the Employer's burden, as the objecting party, to prove that there has
been misconduct that warrants setting aside the election. If the evidence is insufficient then the
Employer has failed to meet its burden.” Consumers Energy Co., 337 NLRB 752 (2002). In
considering the force of objections, the Board applies an objective standard, under which
conduct is found to be objectionable if it has "the tendency to interfere with the employees'
freedom of choice." Cedars-Sinai Medical Center, 342 NLRB 596, 597 (2004); Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995). “The Board has long held that the ‘subjective reactions of
employees are irrelevant to the question of whether there was, in fact, objectionable conduct.’”
Hopkins Nursing Care Center, 309 NLRB 958 (1992) (quoting Beaird-Poulan Div., Emerson
JD–14–07
5
10
15
20
25
30
35
40
45
50
6
Electric Co., 247 NLRB 1365, 1370 (1980)), enfd. 649 F.2d 589 (8th Cir. 1991); Van Leer
Containers, Inc., 298 NLRB 600 fn. 2 (1990).
In evaluating the objectionable nature of conduct, the Board considers: (1) the number of
incidents of misconduct; (2) the severity of the incidents and whether they were likely to cause
fear among employees in the bargaining unit; (3) the number of employees in the bargaining
unit subjected to the misconduct; (4) the proximity of the misconduct to the election date; (5) the
degree of persistence of the misconduct in the minds of the bargaining unit employees; (6) the
extent of dissemination of the misconduct among bargaining unit employees; (7) the effect, if
any, of misconduct by the opposing party to cancel out the effects of the original misconduct; (8)
the closeness of the final vote; (9) the degree to which the misconduct can be attributed to the
party. See, e.g., Cedars-Sinai, supra; Taylor Wharton Div., 336 NLRB 157, 158 (2001).
Before considering each of the Employer’s objections, I note that at the hearing it was
stipulated that both pieces of literature on which the Employer bases its objections were mailed
by the Union prior to the election to each bargaining unit employee on the Excelsior list. The
leaflet referencing the initiation fee was mailed on or about October 12. The literature
containing the marked sample ballot reproduction was mailed on or about October 16. The
Union declined to admit that every bargaining unit employee received the literature but agreed
that it was not contesting the fact of receipt. In different circumstances the Board presumes that
notification sent through the U.S. mail by an employee to a union was received. Pattern Makers
(Michigan Model Mfgrs.), 310 NLRB 929 (1993). Indeed, as a general matter, some courts have
found that "[a] properly addressed piece of mail placed in the care of the Postal Service is
presumed to have been delivered." Hoffenberg v. Commissioner of Internal Revenue, 905 F.2d
665, 666 (2d Cir. 1990). In the absence of any evidence to rebut the presumption of receipt I
find that the two pieces of literature were received by every employee. As these documents
were mailed from and to the greater Boston area on October 12 and 16, respectively, I find they
were received prior to the October 20 election.
a. The altered sample ballot
In SDC Investment, Inc., 274 NLRB 556 (1985), as expanded in subsequent cases,
particularly 3-Day Blinds, Inc., 299 NLRB 110 (1990), the Board set forth the framework for
analysis in altered or marked sample ballot cases. This framework was summarized by the
Board in Oak Hill Funeral Home, 345 NLRB No. 35, slip op. at 3 (2005):
First, if the source of an altered sample ballot is clearly identifiable on the face of
the ballot, then the Board will find the distribution of the document not
objectionable because "employees would know that the document emanated
from a party, not the Board, and thus would not be led to believe that the party
has been endorsed by the Board." [SDC Investment, supra] at 557. If, however,
as here, the source of the marked sample ballot at issue is not clearly identifiable
on its face, under the second prong of SDC Investment, "it becomes necessary
to examine the nature and contents of the material in order to determine whether
the document has the tendency to mislead employees into believing that the
Board favors one party's cause." Id. In making this determination, the physical
appearance of a document may support the conclusion that it is not misleading
where the document would appear to a reasonable employee to be an obvious
photocopy of an official document marked up by a party as part of its campaign
propaganda. See, e.g., Worths Stores, Corp., 281 NLRB 1191, 1193 (1986)
(document found not misleading where "it was clear that the sample ballot had
been cut from another form," that the printed material was not centered on the
JD–14–07
5
10
15
20
25
30
35
40
45
50
7
page, and that markings from a photocopy machine would have led employees to
conclude that the documents were not "official" Board material).
In 3-Day Blinds, Inc., 299 NLRB 110, 111 (1990), and the cases cited
therein, the Board expanded on the SDC analysis. In that case, the Board made
clear that in examining the nature and contents of the document at issue, an
inherently fact-based exercise, it will also look to the extrinsic evidence of the
document's preparation, as well as the circumstances surrounding the
document's distribution. Id. at fn. 7 (citing cases). While evidence showing that a
party distributed the document, without more, will not establish that the party
prepared the document, it is relevant extrinsic evidence to be viewed in the
totality of the circumstances of the document's distribution. Id. at 112. Likewise,
evidence of the proper posting of the Board's official notice of election with its
language that disavows the Board's role in any defacement and specifies the
Board's neutrality in the election process will not, without more, be dispositive in
cases involving a separate distribution of marked sample ballots. [Footnote
omitted.] Sofitel [San Francisco Bay, 343 NLRB 769, 770 (2004)]. However, as
the court stated in VIP Health Care Services v. NLRB, 82 F.3d 1122, 1130 (D.C.
Cir. 1996), it is reasonable to rely on this evidence to bolster the determination
that the sample ballot satisfies the SDC Investment analysis.
In this case, the Employer contends and the Union concedes (Union Br. at p. 3) that the
source of the marked sample ballot distributed by the Union is not “clearly identifiable on the
face of the ballot.” Therefore, under the SDC test "it becomes necessary to examine the nature
and contents of the material in order to determine whether the document has the tendency to
mislead employees into believing that the Board favors one party's cause." SDC, supra. In
doing so, we conduct a “fact based exercise” and in addition to examining the nature and
content of the document at issue, “look to the extrinsic evidence of the document’s preparation,
as well as the circumstances surrounding the document’s distribution.”
Turning first to the physical appearance of the document itself, based on Board
precedent there are points both in favor and opposed to finding that the document would have a
tendency to mislead employees. The photocopying in this case was not as sloppily performed
as that described in Oak Hill Funeral Home, supra, where the Board found the copying of
truncated incomplete portions of words at the top and bottom of the flyer, and the off-center
position of the text in the document, indicated that the flyer was a photocopy of another
document and not “official Board material.” Here, the document at issue is fairly well centered.
There are no truncated incomplete words. There are, in fact, photocopy marks running across
the top and bottom of the sample ballot sent to the Ballardvale Street employees (p. 2 of Exh. 3
attached to Jt. Exh. 1), although none on the sample ballot sent to Jewel Drive. (P. 2 of Exh. 2
attached to Jt. Exh. 1). Such marks are unlikely to be part of an official Government document.
On the sample ballots sent to both Jewel Drive and Ballardvale Street employees, the letters in
the preprinted word “Sample” that are etched across the sample ballot have been highlighted,
obviously by hand, with a yellow marker. In addition, the focus of the inquiry into the
appearance of Board partisanship—the X placed in the “yes” box in the sample ballot sent to
Jewel and Ballardvale employees—is the obvious product of someone’s hand using a red
marker. All other printed material on the distributed document is black. Although numerous
cases finding marked sample ballots objectionable involve hand-altered ballots,3 obviously

3See, e.g., Sofitel, 343 NLRB at 769 (“large ‘X’ handwritten through the ‘yes’ box on the
sample ballot”).
JD–14–07
5
10
15
20
25
30
35
40
45
50
8
handwritten red markings on an otherwise black page (except for yellow highlighting over the
word “sample”) are, at least, a factor militating against the view that an employee would view
this literature as an expression of the Board’s endorsement of the Union. At least in this day
and age, it seems unlikely that an employee would tend to believe that the Board’s official,
otherwise entirely printed documents, come with hand scrawled markings suggesting the
Board’s choice in the election (directly under printed language stating, “Mark an ‘X’ in the square
of your choice” (emphasis added)). Taylor Cadillac Inc., 310 NLRB 639 (1993) (“large, bold”
markings in “yes” box “would be sufficiently distinct from the Board's standard preprinted sample
ballots so as to preclude a reasonable impression that the markings emanated from the
Board”).4
Unlike the marked ballot in Oak Hill, the portion of the wording that runs across the entire
official notice of election at the top and bottom was not reproduced in the document distributed
in this instance. In Oak Hill Funeral Home, the partial phrases and words appearing above and
below the unit description and sample ballot added to the impression that the employees were
not in possession of an official Board document. That is not the case here where the fragments
of the partial phrases and words that would have fit onto the 8-1/2 x 11” document were
excised. What is left is a document with no heading at all, but only a line approximately 1/2”
from the top and bottom of the page where the heading was deleted. This absence of any
heading would tend to undermine the likelihood that an employee would view the marked ballot
as an official document. On the other hand, the reproduced sample ballot includes the Board’s
seal and the words “United States of America” and “National Labor Relations Board.” See SDC
Investment, supra (Board seal taken from an official Board document and placed atop one side
of the leaflet was a factor in finding that the document appeared “official”).
As noted supra, the inquiry is not limited to the physical appearance of the sample ballot
document. In considering whether distribution of this marked sample ballot constitutes
objectionable conduct, we must consider the totality of the extrinsic circumstances, including the
circumstances surrounding its preparation and distribution. In this case, these extrinsic
considerations provide strong evidence supporting the rejection of the Employer’s objection,
because they undercut any tendency of the document to mislead employees into believing that
the Board is not neutral.
First, it is stipulated by the parties that the Board’s official notice of election, with its
language disavowing any Board role in any markings on any sample ballot, and specifying the
Board’s neutrality in the election, was properly posted by the Employer in two locations at each
facility. At Ballardvale, the notice was posted on October 14, six days before the election,
beside the check-in cage and on a wall by the office near the voting area. At Jewel Drive, the
notices were also posted October 14, at the check-in area and in the hallway entrance to the
terminal office. Unlike in Oak Hill Funeral Home, supra, the Employer here did not conduct
meetings with employees to discuss the posted notices. However, the notices were posted

4In his dissent in Oak Hill Funeral Home, supra, Chairman Battista pointed out that while an
employee viewing the stray photocopying markings on the sample ballot distributed in that case
“would reasonably conclude that the marks were not on the original . . . the same cannot be
said about the ‘X’ in the box favoring the [union]. It would be reasonable for an employee to
conclude that this photocopied ‘X’ was in the original.” Slip. op. at 6. The sample ballot in that
case, reproduced as an appendix to the decision, offers support for the point. By contrast, in
the instant case, it would not be reasonable for an employee to conclude that the thick, red
handwritten X (on a document otherwise in black type) was part of the original document.
JD–14–07
5
10
15
20
25
30
35
40
45
50
9
prominently. The manager of the Jewel drive facility, Donald Clark, testified that the notice at
his facility was posted in an area where all the contractors would have had the opportunity to
see and to read the notice. Notably, the language in the notice of election directly anticipates
and attempts to obviate any prospect of confusion based on the distribution of a marked sample
ballot. It reads, in part:
“Any markings that you see on any sample ballot or anywhere on this notice have
been made by someone other than the National Labor Relations Board and have
not been put there by the National Labor Relations Board. The National Labor
Relations Board is an agency of the United States government and does not
endorse any choice in the election." (Emphasis added.)
Thus, the official posted Board document directly undercuts the likelihood that an employee
would be misled by the Union’s sample ballot. It directly informs employees that markings they
may see on “any sample ballot” are not the work of the Board. In particular, the markings at
issue in this case—primarily the red X in the “yes” box but also the yellow highlighting on the
words “Sample”—were clearly handwritten markings added to the preprinted document. As
discussed in VIP Health Care Services v. NLRB, 82 F.3d 1122, 1129 (D.C. Cir. 1996), in
reasoning endorsed in Oak Hill Funeral Home, supra, slip op. at 3, this evidence bolsters the
conclusion that the employees would not reasonably tend to be misled by the marked sample
ballots. See also Dakota Premium Foods, 335 NLRB 228 fn. 2 (2001) (“the language on the
Board's revised Notices would have effectively disclaimed any participation by the Board in the
preparation of the sample ballot, and would have sufficiently reassured employees of the
Board's neutrality in the election”); Comcast Cablevision of New Haven, Inc., 325 NLRB 833 fn.
2 (1998) (warning on official notice “provides further support for our conclusion that employees
would not reasonably believe that the mock ballot emanated from the Board”). Notably, unlike
the case in Oak Hill, the official notices with the instruction that ”[a]ny markings you see on any
sample ballot . . . have been made by someone other than the National Labor Relations Board
and have not been put there by the National Labor Relations Board” were posted prior to the
employees’ receipt of the marked sample ballots, which were mailed to employees on October
16. Thus, the Board’s admonition that any markings—such as that appearing on the sample
ballot distributed by the Union—were not the work of the Board, was already available to
employees at the time the Union’s marked ballots were received.5
Also weighing in favor of the conclusion that employees would not be misled by the
Union’s marked sample ballot is the fact that the Union clearly distributed the marked ballot in
question. The marked sample ballot was distributed by mail to employees, in envelopes
explicitly indicating that the materials came from the Union. While distribution of a document
does not, by itself, establish that a party prepared the document, it is relevant. See Oak Hill
Funeral Home, supra; Worth Stores Corp., 281 NLRB 1191, 1193 (1986).
In this case, the circumstances surrounding the distribution also diminish the prospect
that employees would be misled. The marked sample ballot was provided to employees as 1 of
3 pages enclosed in the Teamsters envelope. One of the other pages was written on Union
letterhead, with a Union watermark, and indicated on its face that it was from and created by the

5In this regard, the situation here is the opposite of that which concerned Chairman Battista,
dissenting in Oak Hill Funeral Home, supra, slip op. at 6. There, he observed that the official
notice was posted after mailing of marked ballots to employees and “[t]herefore, contrary to my
colleagues, I do not believe that the Employer’s subsequent posting of the official notice made
the ballot acceptable under SDC Investments.”
JD–14–07
5
10
15
20
25
30
35
40
45
50
10
Union. It asks employees to vote “yes” and in tone and content is obviously part of the partisan
union campaign. As found in Oak Hill Funeral Home, the inclusion of the sample ballot with
obvious pro-Union propaganda, clearly indicating the non-governmental source, makes it less
likely that employees will be misled into believing that the marked sample ballot is indicative of
the Board’s preference for one party. See also VIP Health Care Services v. NLRB, 82 F.3d at
1129 (“Even though [the sample ballot document] might not have been stapled to the Union
letter, it was enclosed in the same envelope with clearly partisan propaganda written on Union
letterhead, and the envelope itself was marked with the name of the Union”) (Court’s
emphasis).6
Even more probative is the final page of the 3-page packet containing the sample ballot.
It is a photocopy of the right panel of the official notice of election. This page, among things,
expressly states that “[t]he National Labor Relations Board protects your right to a free choice”
and also states that [t]he National Labor Relations Board as an agency of the United States
Government does not endorse any choice in the election.” Thus, one of the pieces of literature
accompanying the mailed sample ballot—which was obviously distributed by the Union—directly
rebuts the potential implication at the basis of this objection: in this case the marked sample
ballot was accompanied by a document expressly affirming the Board’s neutrality.
Finally, another factor mentioned in Oak Hill Funeral Home, is present here. The
marked sample ballot was sent to employees as part of a union campaign that included 13
separate mailings of partisan materials to employees at each facility, in envelopes clearly
identifying the materials as being from the Union. This increases the likelihood that employees
“would perceive the copied sample ballot at issue as the same type of campaign propaganda”
and that employees would not tend to be misled about the Board’s neutrality by the marked
sample ballots included in the propaganda. Oak Hill Funeral Home, supra, slip op. at 4.
In sum, viewed in its totality, the evidence is compelling that under all the circumstances
the Union’s marked sample ballot would not have a tendency to mislead employees into
believing that the Board supported union representation. Under all the circumstances,
employees would see the marked sample ballot as one more piece of literature developed by

6SDC Investment counsels that “determinations must be made on a case-by-case basis,”
(274 NLRB at 557), and therefore the presence of clearly partisan document, whose source is
identified, accompanying the marked sample ballot document, is only a factor and not
dispositive of the analysis. Notwithstanding, it is a factor with great explanatory power when the
ballot document itself is not clearly the work of a party. Compare cases approving of a marked
sample ballot, e.g., Oak Hill Funeral Home, supra (marked sample ballot flyer mailed in union
envelope with enclosed union business card); Systrand Mfg. Corp., 328 NLRB 803 (1999)
(union simultaneously handed out partisan union literature with marked sample ballots); Baptist
Home for Senior Citizens, Inc., 290 NLRB 1059 (1988) (marked ballot sample attached to
obviously partisan-prepared document); BIW Employees Federal Credit Union, 287 NLRB 423
(1987) (same), with cases finding the marked sample ballot objectionable, e.g., Sofitel San
Francisco Bay, 343 NLRB 769 (2004) (as discussed in Oak Hill, supra, in Sofitel marked sample
ballot was only piece of alleged union propaganda distributed before election); 3-Day Blinds,
Inc., 299 NLRB 110, 112 (1990) (rejecting contention that the sample ballot was "invariably"
distributed with material clearly identifying the Employer and finding, to the contrary, “that the
evidence establishes that the ballot was handed out separately and distinctly from other
material”); Archer Services, Inc., 298 NLRB 312 (1990) (marked ballot sample distributed with a
reverse side that was also not a clearly partisan document); SDC Investments, supra (ballot
sample leaflet and its translation handed out alone).
JD–14–07
5
10
15
20
25
30
35
40
45
50
11
the Union and mailed to employees as part of the Union’s campaign to urge employees to vote
in favor of union representation. They could not reasonably believe that the same NLRB that
declared its neutrality—in posted notices around the worksite and in the same mailing
containing the marked sample ballot distributed by the Teamsters—was siding with the
Teamsters and suggesting that employees vote for the Union.
In reaching this conclusion, I have considered the Employer’s contention—advanced
only as to the Jewel Drive facility (Case1–RC–22035)—that particular individual employees read
English poorly and that this must be considered a factor that increases the tendency of the
Union’s marked sample ballot to mislead employees. On the evidence presented, I do not
believe the contention adds to the Employer’s case.
Before addressing the evidence presented in support of this contention, it is
appropriate to address the uncertain legal foundation of the argument. At the hearing, the bulk
of the testimony revolved around this contention, and the Union’s response to it. In colloquy
with the Employer’s counsel regarding this issue, I expressed concern that the Employer was
seeking to adduce subjective evidence to support its case. Upon consideration, I agree with the
Employer that the testimony it elicited in support of this contention is not a foray into subjective
evidence, an approach foreclosed by longstanding Board precedent. See, cases cited, supra.
The identification of individual employees who, the Employer contends, have difficulty reading
English, does not rely upon evidence of the employee’s subjective reaction to the campaign
literature at issue in this case. However, the Employer’s focus on individual employee’s reading
ability raises a somewhat different question, also problematic in my view: the extent to which
individualized assessment of employee’s reading ability is permitted, and, to the extent
permitted, what use can be made of it. The Employer contends that literacy problems increase
the likelihood that a document will mislead employees. I am not convinced of this, or, at the
least, that it is provable. I find very little firm guidance in Board precedent. There are two cases
where a Board majority—asserting lack of objective evidence—rejected the dissent’s assertion
that Spanish-speaking employees would be particularly prone to being misled by marked
sample ballots. See Systrand Mfg. Corp., 328 NLRB 803 (1999), and Dakota Premium Foods,
335 NLRB 228 (2001). In a third case, Archer Services, Inc., 298 NLRB 312 (1990), the Board
found a sample ballot marked by an employer to be objectionable and therefore found irrelevant
the petitioner union’s added contention that Spanish-speaking employees could not read the
reverse side of the document that contained a neutral description of “voting facts.” In addition,
the Board found the issue untimely raised in the absence of record evidence regarding the
number of Spanish-speaking employees.
While these cases certainly leave open the possibility that a sufficient quantum of
objective evidence would buttress the dissent’s view in Systrand and Dakota Premium, and the
petitioner’s view in Archer, the cases necessarily do not reach that issue. There is also the
question of what sufficient objective evidence would look like. In Systrand, the hearing officer’s
report records testimony that about 80 percent of the 80–85 percent Hispanic work force “has
difficulty speaking or reading English,” an incidence of language deficiency far in excess of
anything presented in the instant case, but apparently not accepted as “objective evidence” in
the Board majority’s view.
There are, to my mind, good reasons for the Board to preclude inquiry into individual
reading capabilities. The point of the Employer’s evidence is to suggest that certain individuals
are more susceptible to being misled because of their individual reading difficulties. A
response, naturally enough, is to bring in witnesses, including some of the individuals named by
the Employer and attempt to have them deny any difficulty with reading and perhaps to
demonstrate their reading ability as well. If this inquiry is relevant it is hard to see where it
JD–14–07
5
10
15
20
25
30
35
40
45
50
12
stops. While the Employer here focused its attention on the foreign born, reading difficulties, of
course, are not limited to those with a non-English native tongue. Indeed, I do not accept, as
the Employer here seems to contend, that one can generalize that there is something
qualitatively different between the non-English speaking native’s English language deficiencies
and reading deficiencies of a native English speaker. If the Employer’s evidence here is
relevant then the reading difficulties of any employee—their high school reading test scores,
their educational transcripts with teacher comments about their poor reading comprehension,
their struggles with dyslexia—all of it would be relevant. Indeed, under the logic of the
Employer’s theory, difficulties with comprehension or mental functioning generally becomes
relevant as it would tend to show a diminished likelihood to understand the documents in
question and thereby increase the chance that an employee was misled. For no other reason
than the Board’s interest in expeditiously resolving representation cases, I believe that allowing
the individualized assessment of bargaining unit member’s reading capabilities is not a road the
Board wants to travel. And one must add to this concern the great opportunity for mischief and
humiliation of witnesses that it presents. Finally, one must consider the ends to which this
evidence is directed. There is, to my mind, a very uncertain measure of the link between
diminished reading ability and the tendency to be misled by literature. The link is not self-
evident, or necessary, or, where it exists, easily susceptible to measurement. Such a link would
depend on the complexity of the document in issue and the level and nature of the reading
difficulties of the individual. It seems to me, almost impossible to determine—objectively—short
of extensive testing, whether someone’s reading skills are limited enough so that it increases
the tendency of a document to mislead in any particular way.7 A further complication is the
extent of poor reading in a bargaining unit that must be proven in order for such an argument to
convert an otherwise nonobjectionable document into one with a tendency to mislead.
Based on the above considerations, if I were to reach the issue, I am not sure that I
would allow evidence of individual employee’s reading abilities, on practical grounds, and
because I believe it is not reliably probative of the issue at hand. However, I need not decide
that issue because, in this case, as discussed infra, I believe that on this record the evidence
does not support the Employer’s contention.8

In support of its position, the Employer called Donald Clark, the manager in charge of
the Jewel Drive facility, who reviewed a list of employees and named nine that he believed had
difficulty with the written English language. Clark’s examples dealt primarily with instances in
which he observed that employees asked for help understanding company literature, safety
issues, and customer-related mail directed to the employee, often seeking help from Manager
Edward Gonzalez who speaks Spanish and English (but who has only worked at FedEx since
September 2006, the month before the representation election). Gonzalez testified for the
Employer that he spoke with certain of the nine employees to assist them when they did not
understand a memo, campaign literature, or a safety policy that they were required to sign.
Gonzalez described certain employees who would put him on the phone with a customer when
there was a matter that needed to be discussed, presumably because of their poor English
skills.

7I note that the point advanced by the Board in SDC, supra, that Spanish-speaking
employees will have a tendency to be misled by a misleading document translated into Spanish,
is not the same claim as that advanced by the Employer here.
8Accordingly, I deny as moot the Union’s motion to strike as irrelevant testimony relating to
employees’ language abilities.
JD–14–07
5
10
15
20
25
30
35
40
45
50
13
I found Clark and Gonzalez’ testimony exaggerated in a number of ways. There was a
tendency to conflate the choice by some employees to speak their native foreign language and
the need to do so in order to communicate. There was a tendency in their testimony to assume
that the preference for speaking one’s native language with another native speaker indicated a
diminished ability to speak or read English, which does not follow. There were also
inconsistencies that suggest a willingness to attribute severe language deficiencies for the
purpose of advancing the Employer’s case without regard to the actual abilities of the individual.
Clark named nine employees (of 27 eligible voters) at the Jewel Drive facility who, he
asserted, had “difficulty” understanding written English and who did not understand certain
words, phrases or concepts. The nine were: Dimas CalixNunez, Paula DaSilva, Clayton
Schwann, Aguinaldo Ferriera, Mouloud Zouaoui, Amani Kouame, Fritz Padi, Ricardo Gelli, and
Genaro Vargas. Of the nine employees that Clark claimed were impaired in their English ability,
Gonzalez only mentioned five, even though Clark’s testimony was significantly based on these
employees alleged need to go over information with Gonzalez in order to understand it.
Certainly, Gonzalez was asked questions designed to elicit from him all employees that he knew
to have any language difficulties. Of the five he mentioned, one was Vargas, who, as discussed
below, Gonzalez essentially admitted did not have language difficulties. Notably, the Employer
concedes on brief that it was “particularly” only four (CalixNunez, DaSilva, Schwann, and
Kouame) who needed assistance. (Employer Br. at p. 9).
That raises a question about the claims by Clark and/or Gonzalez about the other
employees. Clark testified that Fritz Padi was challenged both with the spoken and the written
word in English. But Gonzalez, asked to identify the employees he assisted with translation or
English language problems did not mention Padi as someone who had difficulty with the English
language. Padi testified at the hearing. His undisputed and credited testimony is that he has
lived in the United States for the past 31 years. He attended Northeastern University and then
Cambridge College where he received a master’s degree in management. He sold insurance
for Sentry Insurance from 1997 until 2000 and after a period of unemployment was employed by
FedEx in 2003. Padi testified that he could read and write English and understand documents
written in English. I credit his testimony.
Clark testified that Genaro Vargas was one of the employees who was “verbally or
written challenged.” Clark testified that Vargas “and my service manager [Gonzalez] often talk
in Spanish about questions” and that “a lot of times [Vargas] will go to Ed [Gonzalez] after first
coming to talk to me.” Gonzalez testified generally that “[s]ometimes I would have to interpret or
translate things for certain drivers” and indicated that some of the employees expressed a
preference for speaking with him in Spanish. In response to questioning regarding which
employees have indicated a preference to speak Spanish, Gonzalez identified several
employees, including Vargas, with whom he mostly spoke Spanish. However, Gonzalez
admitted on cross-examination that with respect to Vargas, the two often communicate in
Spanish because they prefer to speak in their native language and not because they cannot
communicate in English. Gonzalez’ testimony misleading mentioned Vargas in a way that,
without cross-examination, one would have thought that Vargas required help with English. But
his admission on cross-examination demonstrated that this was not so. Vargas testified at the
hearing. He has worked for FedEx since 2001. He has been in the U.S. since 1991. Vargas
testified that he could understand and read English. I credit his testimony.
Clark testified that Amani Kouame, who is from the Ivory Coast, “has trouble sometimes
with questions and trying to figure out answers to them” and agreed with counsel’s suggestion
that Kouame is among those “challenged both with the written word and the spoken word,
JD–14–07
5
10
15
20
25
30
35
40
45
50
14
English word.” Gonzalez testified that Kouame “speaks a very broken down version of English
in which sometimes he would get literature, paper, paperwork, Company paperwork or
complaints where I have to reformat it for him in a more plain spoken and simple language, you
know, that he will understand.” However, on cross-examination, Gonzalez grudgingly admitted
that Kouame appeared in and had a speaking part—in English—in a video produced for FedEx
and shown to employees as part of the election campaign. Asked if Kouame had a speaking
part in the video, Gonzalez answered, “I guess you could say so, yeah.” Gonzalez quickly
added, “I never said the guy couldn’t speak English, I just said he couldn’t interpret what he was
reading.” But, in fact, Gonzalez did testify that Kouame “speaks a very broken down version of
English,” which, at best, is misleading if his English is adequate for him to appear and speak in
English in a video produced by the Employer for the purpose of communicating its views on
unionization to the work force. This is a particularly revealing example, but generally, I found
Gonzalez’ demeanor suspect, as he was obdurate at times in a manner that suggested a
determination to make predetermined points instead of simply answering the question truthfully
without regard to the perceived import of the answers.
None of the above reflects well on the credibility of Clark and Gonzalez, and the specific
impeachment of their testimony with regard to Vargas, Padi and Kouame, leaves doubts
regarding the accuracy of their testimony generally. I assume that the four employees that the
Employer contends were “particularly” in need of language assistance preferred, when it was
available, to obtain explanations for their questions in their native tongue. Still, I still believe,
and I find that Clark and Gonzalez’ testimony as to the extent of these employees’ limitations
was exaggerated. I credit Vargas’ testimony that he had seen each of the individuals reading
English documents without apparent trouble.
Of course, Vargas’ credited testimony does not disprove that some employees may have
been deficient in their English reading skills. But it does suggest a general ability to operate in a
work environment in which English is the language used in written documents. That is, in fact,
the situation at FedEx, and in addition to the tendentiousness of their testimony (specifically
exposed with regard to Padi, Vargas, and Kouame), it is another reason I find that Clark and
Gonzalez’ testimony was exaggerated and not credible. Clark and Gonzalez’ testimony would
lead one to believe that the English-challenged employees would not be able to successfully
work and operate in an English speaking environment. Yet FedEx operates solely in English.
Every driver working for FedEx is required, as a condition of becoming a FedEx contractor, to
read and sign a 28-page document entitled “The Standard Contractor Operating Agreement,”
which purports to govern all aspects of the employment relationship. This document is
distributed by FedEx exclusively in English. Every contractor working for FedEx has signed the
document, which in its final paragraph states in bolded all capitalized print that the “contractor
has read and fully acknowledges” its provisions.9 Nor is any of the other myriad of customer
service inquiries, company memos, settlement accounts, or any FedEx documents provided to
employees in any language other than English. On the FedEx trucks, drivers use navigation
systems that provide directions in English. During the course of the union campaign, FedEx
ensured that every employee received a copy of approximately 21 leaflets or flyers designed to
dissuade employees from supporting the Teamsters. All of these leaflets and flyers were written
exclusively in English. Similarly, as discussed, the Union’s campaign included extensive mailing
of literature. All of it was in English, with the exception of one leaflet that was a standard

9I recognize that the Standard Contractor Operating Agreement also requires contractors to
acknowledge that they have been given sufficient time to consult with any appropriate advisors
before executing the agreement. However, the point is that FedEx intends for the contractors to
read the document carefully and expects that they can.
JD–14–07
5
10
15
20
25
30
35
40
45
50
15
preprinted leaflet used in all organizing campaigns early in the process; that document was
printed in English on one side and Spanish on the other. Further, there was no request in this
case for foreign language ballots or notice of election posters, something common when there
are English language issues.
What this evidence demonstrates is that when FedEx wanted to communicate in writing
with the Jewel Drive bargaining unit employees—regardless of the subject—it used English.
The Union too, in seeking to communicate with this specific bargaining unit of employees, used
English. The Union could have, but did not, bring in organizers fluent in other languages to
assist in this campaign. Teamsters Organizing Director Sullivan testified to something that is, I
believe, self-evident, and applicable to FedEx as well as the Teamsters: in an organizing
campaign effective communication is important and it is imperative that communications
distributed to employees be understood by the employees.
The exclusive reliance on English undercuts the Employer’s contention that difficulties by
(and only allegedly by a few) members of the bargaining unit with English render the Union’s
marked ballot more likely to be misread as evidence of the Board’s lack of neutrality. Given the
importance of having one’s message heard, the exclusive reliance on English by both parties to
the organizing campaign provides a sort of acid test of the unit’s ability to decipher campaign
(and other) documents written in English. Daikichi Sushi, 335 NLRB at 623 (“It is reasonable to
infer, moreover, that the employees—despite their imperfect command of English—understood
the basic thrust of [the Employer’s] speech. [The Employer] presumably believed that his
speech could be understood or he would not have made it”). The exclusive reliance of FedEx
on English also discredits the claims of Gonzalez and Clark. Notably, Gonzalez’ role of
assisting certain employees in Spanish with the review of customer service mail and other
documents was not an indispensable one. Gonzalez had begun working at FedEx only in
September, the month before the election. The parties stipulated that in the 5 to 6 years prior to
that, no FedEx manager spoke Spanish. Thus, notwithstanding Clark and Gonzalez’
contentions about the need for Gonzalez to assist certain employees by translating documents,
the employees worked without such assistance prior to Gonzalez’ arrival.10

In sum, while I am willing to assume that, at least some of the employees Gonzalez and
Clark mentioned had less than average English reading skills, FedEx has failed to demonstrate
a lack of facility with English that would demonstrate an increased potential for these employees
to be misled by the documents in question here. If some employees’ English skills were less
than average, they were adequate to work—in some cases for many years—in an environment
in which all written literature was in English. Prior to the hearing, neither the Employer nor the
Union seemed concerned that all types of important information provided to these employees in
English—from legally binding employment contracts to campaign literature—would not be
understood by the intended recipients. Under these circumstances the Employer’s effort to
bolster its objection by contending that the employees’ English skills added to the likelihood of
employee confusion over the Board’s neutrality, lacks a sufficient evidentiary basis.
I will recommend that this objection (Objection 2 in Cases 1–RC–22034 and 1–RC–
22035) be overruled.

10The record indicates that Paula DaSilva, Aguinaldo Ferriera, and Amani Kouame had
been employed for approximately 1 year; Mouloud Zouaoui for more than 2 years; Fritz Padi for
4 years, and Genaro Vargas for over 5 years. The record does not speak to the length of
employment of Clayton Schwann, Dimas CalixNunez, or Ricardo Gelli.
JD–14–07
5
10
15
20
25
30
35
40
45
50
16
b. The Union’s mailing regarding initiation fees
The Employer contends that a union mailing explaining that “[t]here is not an initiation
fee for new members” (original emphasis) is objectionable. In support of this objection, the
Employer looks to the United States Supreme Court’s ruling in NLRB v. Savair Mfg. Co., 414
U.S. 270 (1973). As the Board recently explained, relying on Savair, “[a] union interferes with
free choice when it offers to waive initiation fees for only those employees who manifest support
for the union before an election.” S.T.A.R., Inc., 347 NLRB No. 8 (2006). And if the offer to
waive initiation fees is ambiguous with regard to whether or not the offer is limited to those who
manifest support for the union before the election, the Board holds that it is the union’s duty to
clarify the ambiguity. “Absent an adequate clarification, the Board will set aside an election
based on an ambiguous offer to waive fees if the offer is reasonably susceptible to an
interpretation that violates the principles of Savair.” S.T.A.R., supra at slip op. 1–2.
The Employer contends that the Union’s statement—“there is not an initiation fee for
new members”—is ambiguous, subject to multiple interpretations and plausibly could be
interpreted to imply “that those who did not sign a membership card prior to the election will not
be exempt from the initiation fee.” (Employer Br. at 16, 17.) The Employer faults the Union for
using the term “new members,” as opposed to “all members” to describe those for whom there
is no initiation fee, suggesting, essentially, that “new” could be understood to mean those who
became members now, and only now, before the election.
I do not think a reasonable employee, or even a convocation of critical legal studies
scholars could glean the interpretation advanced by the Employer. An initiation is something
that happens when someone joins a group. Thus, to describe an initiation fee (or lack of one) in
relation to new members is accurate and appropriate. Since the bargaining unit employees are
not members of the Union, the only plausible reading is that should they choose to become so,
they will, as new members, not be subject to an initiation fee. The offer is not conditioned on
any requirement that they manifest support for the Union, including by becoming a new
member, “now,” or at anytime prior to the election.11
The Employer points to cases in which the Board found objectionable promises to waive
initiation fees for “charter members” or for those who applied for “charter membership” in a local
union being created as part of the organizing drive. See, e.g., Coleman Co., 212 NLRB 927
(1974); Inland Shoe Mfg. Co., 211 NLRB 724, 725 (1974). However, a “charter” member is a
founding member, and therefore one of the first members of a group. In order to be a charter
member one must be one of the first, or an early member of the group, thus susceptible to an
interpretation that there is an immediate (i.e., perhaps a preelection) requirement to join in order
to avoid initiation fees. By contrast, someone is a “new member” of a group whenever they join.
The Employer also maintains, as it did with regard to the marked sample ballot, that
alleged language difficulties of certain employees bolsters this objection. I reject this contention
for substantially the same reasons I rejected it with regard to the sample ballot objection. I do
not believe the Employer has demonstrated that any language difficulties exist in the bargaining

11By way of contrast, in Deming Division, Crane Co., 225 NLRB 657, 659 (1976), the Board
held objectionable the statement “[t]here will be no initiation fees for anyone joining now during
this campaign” because it was “susceptible of an interpretation by the employees that they must
make a union commitment before the election.” In the instant case, the Union’s statement is not
susceptible to such a reading.
JD–14–07
5
10
15
20
25
30
35
40
45
50
17
unit to an extent that would support the argument that the Union’s initiation fee literature
reasonably could be considered ambiguous.
Stripped of a strained search for ambiguity, the Employer’s contention, in essence, is
that where a union broadly states that initiation fees do not apply, it must also specifically and
expressly assure employees that there are not initiation fees even if they oppose the union drive
or do not actively support it. Neither Savair, nor any Board precedent requires any such
singular sensitivity to concerns of employees that are not based on a reasonable understanding
of union statements.12
I will recommend that this objection (Objection 5 in Case 1–RC–22034 and Objection 4
in Case 1–RC–22035) be overruled.

12The Employer’s brief also contends that the initiation fee statement is “susceptible to an
interpretation that if [employees] voted for the Union, their initiation fee would be waived.”
(Employer Br. at 3, 15). The Employer’s timely filed objections do not reference or encompass
this contention. Accordingly, it need not be considered. Hotel & Restaurant Employees Local
226 (Santa Fe Hotel), 318 NLRB 829, 836 (1995); Rhone-Poulenc, Inc., 271 NLRB 1008 (1984).
In any event, such an objection would fail, as the Board rejects the view that “employees, faced
with a perceived, albeit nonexistent, possibility that they may forfeit the fee waiver if they do not
vote for the Union, may improperly feel compelled to vote for Union representation.” De Jana
Industries, Inc., 305 NLRB 294 (1991), quoting Molded Acoustical Products v. NLRB, 815 F.2d
934, 939 (3d Cir. 1987), cert denied 484 U.S. 925 (1987). I also note that in its brief the
Employer cites another statement in a different leaflet distributed by the Union. The leaflet,
headed “Q&A Teamster Local 25 Dues and Fees,” included the statement that “[y]ou will not be
required to pay an initiation fee. There is no initiation fee for new members of a new group.”
The Employer’s timely filed objection does not reference or encompass this statement. Indeed,
its objection regarding the waiver of initiation fees is specifically limited to the document and
statement discussed in the text. The Employer does not contend otherwise, and I do not,
independently analyze this statement under Savair. Hotel & Restaurant Employees Local 226
(Santa Fe Hotel), supra; Rhone-Poulenc, Inc., supra. However, even if considered in terms of
support for its timely-filed objection, I do not believe that this statement renders the statement
objected to by the Employer ambiguous.
JD–14–07
5
10
15
20
25
30
35
40
45
50
18
IV. RECOMMENDATIONS
On these findings of fact and conclusions and on the entire record, I issue the following
recommendations:
The Employer's objections to conduct affecting the results of the elections in the above
matters should be overruled. As the tally of ballots shows that the majority of valid votes
counted have been cast for the Petitioner in each election, it is recommended that the Board
certify the Petitioner as the collective-bargaining representative of employees in the appropriate
units.13
Dated, Washington, D.C. February 16, 2007
____________________
David I. Goldman
Administrative Law Judge

13Any party may, under the provisions of Section 102.67 and 102.69 of the Board's Rules
and Regulations, file exceptions to this report with the Board in Washington, D.C., within
fourteen (14) days from the issuance of this report. Immediately upon filing of such exceptions,
the party filing the same shall serve a copy thereof on the other parties and shall file a copy with
the Regional Director. Exceptions must be received by the Board in Washington, D.C., by
March 2, 2007.