Foster Poultry Farms

National Labor Relations Board - Board Decisions

Aug 28, 2008

352 N.L.R.B. 1147 (N.L.R.B. 2008)

FOSTER POULTRY FARMS
352 NLRB No. 136
1147
Foster Poultry Farms1 and United Food and Com-
mercial Workers 8 Golden State. Case 32–RC–
5539
August 28, 2008
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The National Labor Relations Board has considered
objections to an election held December 13, 2007, and
the attached administrative law judge’s report recom-
mending disposition of them.2 The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 75 votes cast for and 204 votes
against the Petitioner, with 25 challenged ballots, an in-
sufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the administrative law
judge’s findings and recommendations with respect to
the Petitioner’s Objection 1,3 and finds that the election
must be set aside and a new election held.
In Ryder Memorial Hospital, 351 NLRB 214 (2007),
the Board modified its official ballot to include the fol-
lowing language: “The National Labor Relations Board
does not endorse any choice in this election. Any mark-
ings that you may see on any sample ballot have not been
put there by the National Labor Relations Board.” Ry-
der, supra at 216. The explicit disclaimer language is to
appear on both the actual ballots cast by employees and
the sample ballot contained in the notice of election. The
Board further required that this language appear on al-
tered sample ballots distributed by the parties to an elec-
tion, because “[w]hen the Board’s complete disclaimer
language does not appear on separately distributed al-
tered sample ballots . . . employees might perceive the
ballots to be official Board documents that endorse one
party or another.” Id. at 215.
Under the new policy, “as any actual reproduction of
the Board’s sample ballot will necessarily include the

1 We have modified the caption to accurately reflect the name of the
Employer.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Petitioner has excepted to the judge’s recommendation to
overrule its Objections 5 and 6. In light of our adoption of the judge’s
recommendation to sustain the Petitioner’s Objection 1, we find it
unnecessary to pass on those objections.
foregoing disclaimer language, employees will not rea-
sonably be misled into believing that the Board supports
a particular party, whether or not the reproduced ballot
contains additional markings or promotes that party’s
cause.” Id. (Footnote omitted.) The Board held that
henceforth “we will decline to set aside elections based
on a party’s distribution of an altered sample ballot, pro-
vided that the sample ballot is an actual reproduction of
the Board’s sample ballot, i.e., that it includes the newly
added disclaimer language.” Id. at 216 (emphasis added)
(footnote omitted). The phrase “actual reproduction of
the Board’s sample ballot” thus, refers to the official
sample ballot shown on the notice of election, which is
identical to the actual ballot cast in the election and
which includes the disclaimer in each language included
on the ballot.
In the present case, the judge recommended sustaining
the Petitioner’s Objection 1. She found that the Em-
ployer did not comply with the Board’s decision in Ry-
der, because the Employer distributed and posted multi-
ple copies of a campaign leaflet written in English and
Spanish with an altered sample ballot in English, when
the official sample ballot contained in the notices of elec-
tion4 was also drafted in Spanish and Laotian. We adopt
the judge’s recommendation for the reasons stated in her
report. The altered sample ballot was not an actual re-
production of the Board’s official sample ballot on the
notices of election and did not include the Board’s com-
plete disclaimer language, i.e., the Spanish and Laotian
disclaimers as well as the English disclaimer shown on
the Board’s official sample ballot. Therefore, we find, in
agreement with the judge, that the Employer’s sample
ballot failed to satisfy Ryder.
[Direction of Second Election omitted from publica-
tion.]
Steven R. Feldstein, Esq., for the Employer.
Donald C. Carroll, Esq., of San Francisco, California, for the
Petitioner.
REPORT AND RECOMMENDATIONS
On November 13, 2007,1 United Food and Commercial
Workers 8 Golden State (the Petitioner) filed a Petition for
Certification of Representative seeking to represent a unit of
production and maintenance employees at the Porterville, Cali-
fornia facility of Foster Farms, Inc. (the Employer).
The Employer, a California corporation, with its principal of-
fice located in Livingston, California, is engaged in the process-

4 The Region provided the Employer with notices of election printed
in English, Spanish, and Laotian. All of these notices included the
official sample ballot, which was printed in all three languages and
included the Ryder disclaimer language in English, Spanish, and Lao-
tian.
1 All dates are in 2007, unless otherwise referenced.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148
ing of poultry at its Porterville, California facility. From No-
vember 28, 2006, to November 28, 2007, the Employer shipped
and sold poultry products valued in excess of $50,000 to firms
located outside the State of California. The Employer admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Em-
ployer admits, and I find, that Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
Pursuant to a Stipulated Election Agreement, approved on
November 28, a secret-ballot election was conducted on De-
cember 13, in the following appropriate unit:
All full-time and regular part-time production and sanitation
employees, receiving clerks, forklift drivers, stackers, and lead
employees employed by the Employer at its Porterville, Cali-
fornia facility; excluding all managerial and administrative
employees, quality control employees, maintenance employ-
ees, shipping clerks, salespersons, office clerical employees,
all other employees, guards, and supervisors as defined in the
Act.
The tally of ballots reflected that of the approximately 331
eligible voters, 75 votes were cast for the Petitioner, 204 were
cast against Petitioner, and 25 ballots, an insufficient number to
affect the election results, were challenged. Following the elec-
tion, Petitioner filed timely objections to conduct affecting the
election. Pursuant to the Acting Regional Director’s Report on
Objections and notice of hearing issued February 29, 2008,
certain of these objections have been referred for hearing. The
hearing was conducted on March 20 and 21, 2008, in Porter-
ville, California.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record,2 including my observation of the demeanor of
the witnesses,3 and after considering the briefs filed by Peti-
tioner and Employer, I make the following findings of fact and
recommendations.
Objection 5
The Employer through its then Plant Manager Paul Bravinder
on or about November 20 invited employees to come to him
with any complaints that they had with their working condi-
tions.
Reading from scripted talking points, Plant Manager Paul
Bravinder4 conducted four to six meetings on November 20.
After each bulleted item, Bravinder paused and his prior state-
ment was translated into Spanish by Tessie Molina, human
resources manager for the Porterville facility. Bravinder agreed

2 Petitioner’s unopposed motion to correct the transcript is granted.
3 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
4 At the time of the speech, Bravinder was an admitted supervisor
and agent of the Employer within the meaning of Sec. 2(11) and (13) of
the Act. He left employment with the Employer shortly thereafter.
that he read the following sentence: “Porterville employees,
like all non-Union employees, enjoy an open door policy to
resolve concerns.” Bravinder agreed that at each meeting held
that day, he diverted from the scripted message to add his per-
sonal experience that when he worked at a unionized plant, it
took much longer to resolve disputes than the nonunion method
of employees sitting down with management and resolving
problems at the time of the occurrence. Bravinder denied that
he invited employees to bring problems to him (other than the
sentence quoted above) or said anything about fixing employ-
ees’ problems.
Bravinder’s testimony was corroborated by Tessie Molina.
Additionally, Molina testified that she faithfully interpreted
Bravinder’s words into Spanish using the scripted talking
points. An employee fluent in both Spanish and English testi-
fied that Molina’s translation of Bravinder’s speech was accu-
rate and that Molina did not add any additional comments or
deviate from Bravinder’s statements. This employee recalled
that Bravinder told employees it was more comfortable to have
an open door policy than a third party, a Union. Bravinder told
employees that they should not be afraid to come to manage-
ment with their thoughts, feelings, or anything on their minds.
Another employee presented by the Employer recalled that
Molina stated that the Employer had an open door policy for
employee problems and employees did not need a third party to
mediate.
There is no dispute that the Employer maintained an open
door policy at least several years prior to the filing of the peti-
tion herein. It is contained in an employee handbook and hu-
man resources manager, Molina, routinely communicated the
policy to all new hires.
Although the exact language from the handbook was not
submitted at the hearing, anecdotal evidence about the use of
the procedure was. For instance, on one occasion Jose Rodri-
guez utilized the open door policy to complain about bad treat-
ment. He was aware of the open door policy throughout his 5-
year employment with the Employer. Rosalinda Nevarez util-
ized the open door policy throughout her employment. At
times she met with Irma Hernandez in human resources and at
other times she met with Bravinder. Nevarez recalled that
about 2 years prior to the hearing, she met with Bravinder about
a foreman.
Petitioner presented witnesses who testified that Bravinder,
through Molina, stated that employees should come directly to
him. A third party was not necessary for resolving problems.
One witness testified that Bravinder said, “[I]f you guys have
problems, come to me, I can help you, myself or Tessie.” An-
other recalled that Bravinder stated, “[W]e could go directly to
him to resolve [complaints]. That we don’t need a third person
to help us resolve our problems.” Another witness testified that
Bravinder said, “[Y]ou guys can come with me with your prob-
lem and I’m going to try to resolve it but, I’m going to be leav-
ing soon.”
To the extent there is discrepancy between Petitioner’s and
Employer’s witnesses on this issue, I credit the testimony of
Bravinder and Molina and find that employees were reminded
that they had an existing open door policy to resolve their con-
cerns. My credibility finding is based on the uncontroverted
FOSTER POULTRY FARMS 1149
testimony of Bravinder and Molina that there was no deviation
from the scripted remarks, except that Bravinder told employ-
ees that he thought the open door policy was more expeditious
than dealing with a union about employee concerns.
I find that these statements did not interfere with the conduct
of the election. In the absence of a preexisting open door pol-
icy, solicitation of employee grievances during an election
campaign tends to restrain and coerce employees when the
employer promises to remedy those grievances. Uarco, Inc.,
216 NLRB 1, 2 (1974). “The solicitation of grievances alone is
not unlawful, but it raises an inference that the employer is
promising to remedy the grievances.” Center Service System
Division, 345 NLRB 729, 730 (2005), enfd. in relevant part 482
F.3d 425 (6th Cir. 2007). However, when an employer utilizes
an open door policy prior to the beginning of a union campaign,
the employer may lawfully continue the policy during the cam-
paign provided it does not significantly alter “its past manner
and methods of solicitation during the campaign.” Center Ser-
vice System Division, supra at 730, citing House of Raeford
Farms, 308 NLRB 568, 569 (1992), enfd. mem. 7 F.3d 223 (4th
Cir. 1993), cert. denied 511 U.S. 1030 (1994).5
There is no evidence that Bravinder’s remarks altered the
contours of the open door policy as it existed prior to the elec-
tion campaign. That is, the record reflects that employees were
free both before and during the election campaign to consult
Bravinder in order to resolve their concerns. Thus, I recom-
mend that Petitioner’s Objection 5 be overruled.
Objection 6
On December 4 and December 11 . . . the Employer held gen-
eral meetings with the employees in which the Employer
threatened employees with a reduction of wages and a loss of
health insurance and retirement benefits as well as with elimi-
nation of bonuses if the Union was elected. The employer
also threatened to bargain from zero with the Union if the Un-
ion was elected.
The Employer held a series of meetings on December 4 and
11. About 20–40 employees, typically those in one department
or line, attended each meeting. Approximately seven meetings
were held on both December 4 and 11. The meetings were
conducted by Ritchie King, vice president of chicken opera-
tions.6 King spoke in English, reading from prepared charts.
The charts were positioned in the front of the room and were in
both English and Spanish. When King finished reading a page
of the English chart, his speech was repeated in Spanish by
Becky Reyes, a human resources supervisor, who read the cor-
responding Spanish chart. Neither King nor Reyes regularly
worked in the Porterville facility.
A portion of the presentation dealt with comparison of wages
and benefits at two unionized facilities of Respondent to the
wages and benefits at the Porterville nonunion facility. The
charts reflected that the unionized facilities had lower wages,

5 See also PYA/Monarch, Inc., 275 NLRB 1194, 1195–1196 (1985);
Butler Shoes New York, Inc., 263 NLRB 1031 (1982), relied upon by
the Employer.
6 King is an admitted supervisor and agent of the Employer within
the meaning of Sec. 2(11) and (13) of the Act.
lower wage increases, higher medical plan deductibles and less
medical coverage, different retirement benefits, and no bo-
nuses.
Petitioner presented witnesses who attended the December 4
and 11 meetings. Uniformly, they testified that the Employer
threatened employees with a reduction of wages, loss of health
insurance, retirement benefits, and bonuses if the Union was
elected. As to bargaining from zero, witnesses testified that the
Employer threatened to bargain from zero: “Well, they said that
if the Union came in, they were going to lower wages. That we
were going to start from the bottom, from minimum.” Another
witness testified that if the Union came in, “the wages were
going to be diminished to the minimum.”
Petitioner’s witnesses either denied or could not recall that
the Employer’s speeches explained that items such as wages,
health insurance, retirement benefits, and bonuses were subject
to negotiation. However, one of the witnesses understood the
Employer’s speech to say, “Well, they only said that the Union
could only give what the company accepted to give. That if the
company did not accept to give, the Union cannot give.”
The Employer produced the original English and Spanish-
language charts. The December 4 charts stated that the Union
could only receive what the Employer agreed to. The Decem-
ber 11 charts stated as to wages, medical benefits, and retire-
ment benefits, “It is negotiable . . . benefits may go down, not
change, go up . . . but History says NO.” Petitioner’s witnesses
recognized some of the pages of these charts but disputed the
accuracy of other pages of the charts or data on those pages.
On the other hand, the Employer produced employee and man-
agement witnesses who attended the same meetings. The Em-
ployer’s witnesses agreed that the charts at the hearing were
identical to the charts at the meetings.
Additionally, the Employer’s witnesses testified that both
King and Reyes stated, “The UFCW Union can only receive
what Foster Farms agrees to.” These witnesses did not hear
King or Reyes state that medical benefits would be taken away
or that wages would be reduced. Neither King nor Reyes said
that employee pension or retirement plans would be eliminated.
Neither said the Employer would cease making contributions to
the 401(k) plan. Neither the employees would lose bonuses if
the Union came in. When employees asked questions about
wages or benefits, the response was uniformly that these items
could go up, down, or stay the same. These were negotiable
items and the answer would depend on what happened at the
bargaining table. Similarly, King and Reyes testified that no
threat of loss of benefits or reduction of wages was made and
that the often repeated phrase in response to questions was, “It
could go up, down, or stay the same. Everything is negotiable.”
Of course, threats of wage reduction and loss of benefits
constitute objectionable conduct affecting the results of an elec-
tion. See, e.g., Interstate Truck Parts, 312 NLRB 661, 663
(1993), enfd. mem 52 F.3d 316 (3d Cir. 1995) (threat to reduce
wages and benefits reasonably tended to interfere with employ-
ees rights under the Act); Truss-Span Co., 236 NLRB 50
(1978), enfd. in relevant part 606 F.2d 266 (9th Cir. 1979)
(threat to eliminate pension and profit sharing plans interfered
with conduct of election). Certainly, statements about bargain-
ing from zero should the Union win an election may constitute
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150
objectionable conduct if conveyed as a threat that wages will
depend “in large measure upon what the Union can induce the
employer to restore.” See, e.g., Federated Logistics & Opera-
tions, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C. Cir.
2005).
However, based on the record as a whole, I find that no such
objectionable conduct occurred. Although Petitioner’s wit-
nesses displayed credible demeanors and appeared to be hon-
estly convinced that they had been threatened, I find that the
Employer’s witnesses’ testimony and demonstrative evidence
belies the recollections of Petitioner’s witnesses. Thus, Re-
spondent’s documentary evidence, utilized at the December 4
and 11 meetings, demonstrates that Porterville wages are higher
than two other Employer facilities, both of which are unionized.
Perhaps Petitioner’s witnesses assumed that if they selected the
Union, their wages would be the same as the two unionized
facilities. However, I find that this was not communicated to
the employees by King and Reyes. Similarly, I credit the testi-
mony of King, Reyes, and other Employer witnesses that there
were no statements that employees would lose health benefits,
bonuses, or retirement plans or that the Employer would bar-
gain from zero. Thus, I recommend that Petitioner’s Objection
6 be overruled.
Objection 1
The Employer distributed to employees a sample ballot which
did not comply in Spanish or Laotian with the Board’s deci-
sion in Ryder Memorial Hospital, 351 NLRB No. 26 [214].
The parties stipulated that the election should be conducted in
Spanish and Laotian as well as English.
In Ryder Memorial Hospital,7 the Board altered its official
ballot as part of its effort to conclusively cease case-by-case
analysis of whether voters might be misled by partisan use of
official ballots during preelection campaigns.8 Specifically, the
Board added a two-sentence disclaimer to its official ballots, as
follows:
The National Labor Relations Board does not endorse any
choice in this election. Any markings that you may see on
any sample ballot have not been put there by the National La-
bor Relations Board.
The Board also announced that if, as part of preelection propa-
ganda, a party utilized facsimiles of official Board ballots in the
future, the two-sentence disclaimer must be present on the bal-
lot or a new election will be ordered.9 As the Board stated,

7 351 NLRB 214 (2007).
8 Prior to Ryder Memorial Hospital, a party utilizing an altered
NLRB ballot as part of its election propaganda was not obligated to
include the neutrality statement or the marking disclaimer on the sam-
ple ballot. The potential interference caused by utilizing an unattrib-
uted altered NLRB ballot as election propaganda was analyzed on a
case-by-case basis pursuant to SDC Investments, 274 NLRB 556, 557
(1985) (not misleading if source of altered ballot identified or, if uni-
dentified, nature and contents of material reveal employees would not
be mislead). By changing the law, the Board sought to eliminate litiga-
tion of this issue and, thus, eliminate the delay inherent in such litiga-
tion.
9 Ryder, supra at 216.
This explicit disclaimer language will appear on both the ac-
tual ballots cast by employees in the election and the sample
ballot contained on the Notice of Election, and is in addition
to the existing disclaimer language on the bottom of the No-
tice of Election. We believe that this modification to the bal-
lot will effectively preclude any reasonable inference that the
Board favors or endorses any choice in the election. That is,
as any actual reproduction of the Board’s sample ballot will
necessarily include the foregoing disclaimer language, em-
ployees will not reasonably be misled into believing that the
Board supports a particular party, whether or not the repro-
duced ballot contains additional markings or promotes that
party’s cause.
Turning to the facts herein, as part of its election propa-
ganda, the Employer prominently posted and broadly distrib-
uted leaflets containing reproductions of NLRB ballots. This
occurred during the week of the election. The “NO” box was
marked with an “X” on the sample ballot portion of the leaflet.
The leaflets were in both Spanish and English. None of the
leaflets was in Laotian. The sample ballot portion of both the
Spanish and English leaflets was in English only, regardless of
whether the sample ballot was contained in a Spanish or Eng-
lish leaflet.10
Pursuant to the stipulated election agreement, official ballots
were printed in English, Spanish, and Laotian. Moreover, no-
tices of election were printed in English, Spanish, and Laotian.
These notices contained the two-sentence Ryder disclaimer in
English, Spanish, and Laotian on the lower part of the sample
ballot in the center of each trifold notice.
The record does not reflect an exact number of employees
who were unable to read the English-language Ryder disclaimer
on the Employer’s sample ballot. Various sorts of evidence of
this kind were discussed during on and off the record conversa-
tions. However, neither of the parties had any specific facts or
figures regarding unit employees’ abilities to read English.
Certainly the four witnesses produced by Petitioner testified
that they were unable to read English. Moreover, Petitioner
averred, and there is no reason to doubt, that it could produce
additional witnesses to testify to the same inability to read Eng-
lish. The Employer agreed that many employees speak Spanish
but had no estimate regarding abilities to read English.11
The issue is thus whether Ryder requires that the two-
sentence disclaimer statement on a sample ballot utilized during
an election campaign be printed in all languages utilized for
official ballots. I find that it does.
Although utilization of foreign-language ballots is a discre-
tionary matter,12 Ryder mandates that any party utilizing an

10 In utilizing English-only Ryder disclaimers, I further note that the
Employer did not copy the sample ballots on the notices of election.
The notices of election contain the Ryder disclaimer in three languages,
no matter whether the notice of election is in English, Spanish, or Lao-
tian. All of these notices contain a sample ballot with the Ryder dis-
claimer written in three languages on each ballot.
11 There is no evidence regarding Laotian employees’ ability to read
English.
12 See NLRB Casehandling Manual, Part Two, Representation Pro-
ceedings, Sec. 11315; NLRB v. Precise Castings, 915 F.2d 1160 (7th
Cir. 1990).
FOSTER POULTRY FARMS 1151
altered NLRB ballot during an election campaign communicate
the NLRB’s neutrality and its disclaimer of markings to the
voters. The rule was adopted due to concern that if the Board’s
official ballot was reproduced and then altered, it might mislead
employees into believing that the Board endorsed that party.
The rule was made mandatory to avoid further litigation of
representation matters, thus delaying certainty of election re-
sults.
Here, the Employer’s altered ballot was posted prominently
in the entrance, the security area, the timeclock area, and even
in employee restrooms. All employees would have been able to
observe the altered ballot. Further, although the Employer
carefully translated much of its preelection campaign materials
and speeches into Spanish, there was no attempt to translate the
Ryder disclaimer language into Spanish or Laotian. I reject any
argument that this objection should be overruled due to the
actual tally of ballots in a ratio of about 1 vote for the Petitioner
to 2.7 votes against representation by the Petitioner. The close-
ness of the election as well as other factors enunciated in Cam-
bridge Tool & Mfg.13 are not relevant under the Ryder analysis.
Recognizing that the NLRB did not specifically enunciate a
requirement that foreign-language Ryder disclaimers be present
in any sample ballots distributed as campaign propaganda, the
Employer argues that such an “extension” of Ryder be given
prospective application only, while Petitioner argues that the
Board did not intend its holding in Ryder solely for those voters
who could read English. Petitioner argues that application of
Ryder to the facts in this case does not amount to an “exten-
sion” of Ryder. Rather, Petitioner asserts that foreign-language
Ryder disclaimers are required implicitly in Ryder. Petitioner
further argues that if a foreign-language Ryder disclaimer does
constitute “extension” of Ryder, it should nevertheless be given
retrospective effect.
For the reasons set forth below, I find in agreement with Pe-
titioner, that requiring a foreign-language disclaimer on the
sample ballots utilized herein is inherent in the holding in Ry-
der. Moreover, even were such a requirement not inherent in
Ryder, I find that retroactive application of a foreign-language
requirement does not work a manifest injustice.
In Ryder, the Board added the statement of the Board’s neu-
trality and a disclaimer of any markings in order “to ensure that
employees are not misled into believing that the Board favors a
particular party to an election, and [to] reduce the likelihood of
postelection litigation, thereby enhancing the finality of Board
elections.”14 It is impossible to reach these goals without for-
eign-language Ryder disclaimers. Moreover, the foreign-
language Ryder disclaimers were readily available to the Em-
ployer because they were already present on the Board’s no-
tices of election. Thus, I find that the use of foreign-language

13 316 NLRB 716 (1995): the number of incidents, the severity of the
incidents and whether they were likely to cause fear among unit em-
ployees, the number of unit employees subjected to the misconduct,
proximity of misconduct to the election, degree to which misconduct
persists in the minds of employees, extent of dissemination, effect of
opposing party to cancel out the effects of original misconduct, close-
ness of the vote, degree to which misconduct can be attributed to the
party.
14 Ryder, supra at 216.
Ryder disclaimers does not constitute an extension of the Ryder
decision.
Further, were such a requirement considered new or addi-
tional to the original Ryder decision, it would nevertheless de-
serve retroactive application. The parties agree that the rele-
vant inquiry regarding retrospective application is a balance of
the ill effects of retroactivity “against the mischief of producing
a result which is contrary to a statutory design or to legal or
equitable principles.” Securities & Exchange Commission v.
Chenery Corp., 332 U.S. 194, 203 (1947). All decisions are
applied retroactively, Deluxe Metal Furniture Co., 121 NLRB
995, 1006–1007 (1958), unless retroactive application would
cause manifest injustice. See, e.g., SNE Enterprises, 344
NLRB 673 (2005) (application of decision retroactively would
not result in manifest injustice). Examination of the following
factors is utilized to determine whether manifest injustice will
occur: “reliance of the parties on preexisting law, the effect of
retroactivity on accomplishment of the purposes of the underly-
ing law which the decision refines, and any particular injustice
to the losing party under retroactive application of the law.”
Pattern Makers (Michigan Model Mfrs.), 310 NLRB 929, 931
(1993), citing NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th
Cir. 1990).
Balancing these factors, I find that retroactive application of
a foreign-language Ryder disclaimer requirement creates no
manifest injustice. As to reliance on preexisting law, the Em-
ployer cites Systrand Mfg. Corp., 328 NLRB 803 (1999), and
Dakota Premium Foods, 335 NLRB 228 (2001), in which
Spanish-language altered ballots were utilized without benefit
of a Spanish-language statement of the NLRB’s neutrality. In
both cases, the Board adopted the hearing officers’ recommen-
dations based on the SDC case-by-case analysis15 and held that
the neutrality statement in the notice of election cured any de-
fect in the sample ballots under the circumstances of those
cases.
These cases are unconvincing because they predate Ryder,
Ryder specifically overruled the SDC case-by-case approach,
and these cases dealt only with the Board’s neutrality statement
rather than the two-sentence neutrality statement plus dis-
claimer required by Ryder. If the Employer relied on Ryder to
require that the disclaimer be written only in English, it has not
advanced that argument here and, indeed, it would be difficult
to understand such an argument. Based on these factors, I find
the Employer relied upon precedent which could apply by anal-
ogy only. Thus, I find that this factor only weakly suggests
injustice by retroactive application.
Regarding the effect of retroactivity on accomplishment of
the purposes of the underlying law which the decision refines, a
requirement of foreign-language Ryder disclaimers ensures the
policies underlying the decision, i.e., it ensures that all employ-

15 Thus, the hearing officer in Systrand relied upon Worths Stores
Corp., 281 NLRB 1191 (1986); C. J. Krehbiel Co., 279 NLRB 855
(1986); and Rosewood Mfg. Co., 278 NLRB 722 (1986). These cases,
in turn, cited SDC Investments, 274 NLRB 566 (1985), as the appropri-
ate framework for analysis of the issue. Although the hearing officer’s
report is not included in Dakota Premium Foods, 335 NLRB 228
(2001), the Board notes that it adopts the hearing officer’s application
of SDC. Id. at fn. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152
ees understand the Board’s neutrality and ensures that employ-
ees understand that the Board did not alter the ballot. Thus, I
weigh this factor as strongly suggesting the retroactive applica-
tion of a foreign-language Ryder disclaimer.
Finally, I find there is no particular injustice to the Employer
pursuant to retroactive application of a foreign-language Ryder
disclaimer requirement. As in SNE Enterprises,16 there will be
no finding of unfair labor practices or an order to pay damages
in this case. The result here, as in SNE Enterprises, will be
invalidation of a prior election and order of a rerun election.
Balancing all of these factors, I find no manifest injustice in
retroactive application.
Accordingly, I recommend that Petitioner’s Objection 1 be
sustained.
Recommendation
I recommend that Objections 5 and 6 be overruled and Ob-
jection 1 be sustained. Due to violation of serious Ryder Me-
morial Hospital policy considerations, I recommend that the
election conducted on December 13, 2007, in Case 32–RC–
5539 be set aside and a new election be directed.17 Further, I

16 344 NLRB 673, 673–674 (2005).
17 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this Report may be filed with the Board in
recommend that the following language be included in the No-
tice of Second Election in accordance with Lufkin Rule Co.,
147 NLRB 341 (1964), and Fieldcrest Cannon, Inc., 327
NLRB 109, 110 fn. 3 (1993):
Notice to All Voters
The election conducted on December 13, 2008 was set aside
because the National Labor Relations Board found that certain
conduct of the Employer interfered with the employees’ exer-
cise of a free and reasoned choice. Therefore, a new election
will be held in accordance with the terms of this notice of
election. All eligible voters should understand that the Na-
tional Labor Relations Act, as amended, gives them the right
to cast their ballots as they see fit and protects them in the ex-
ercise of this right, free from interference by any of the par-
ties.

Washington, D.C. within 14 days from the date of issuance of this
Report and Recommendations. Exceptions must be received by the
Board in Washington, D.C. by May 16, 2008. Immediately upon the
filing of such exceptions, the party filing same shall serve a copy
thereof upon the other parties and shall file a copy with the Regional
Director. If no exceptions are filed thereto, the Board may adopt this
Recommended Report.