Jensen Pre-Cast

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 547 (N.L.R.B. 1988)

JENSEN PRE-CAST
Jensen Enterprises, Inc. d/b/a Jensen Pre-Cast and
Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union 631, a/w International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO,'
Petitioner. Case 31-RC-5745
July 29, 1988
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
The National Labor Relations Board , by a three-
member panel , has considered an objection to an
election held September 28, 1984 , and the hearing
officer's report recommending disposition of the
objection.2 The election was conducted pursuant to
a Stipulated Election Agreement . The tally of bal-
lots shows six for and two against the Petitioner,
with no challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the hearing
officer's findings and recommendations, and finds
that a certification of representative should be
issued.
The issue in this case is whether the display of
an altered Board sample election ballot, under the
circumstances presented , warrants setting aside the
election . The hearing officer found that the display
did not constitute objectionable conduct . The Em-
ployer contends in its exceptions that the document
likely gave voters the misleading impression that
the Board favored the Union. We find no merit to
the Employer's contentions and shall overrule the
objection.
In SDC Investment, 274 NLRB 556 (1985), the
Board found that the "crucial question" in resolv-
ing issues raising the alteration of a Board sample
ballot is whether the ballot in issue "is likely to
have given voters the misleading impression that
the Board favored one of the parties to the elec-
tion." 274 NLRB at 557. Under the circumstances
of this case, we find insufficient evidence that
voters reasonably would be misled.
The facts are not materially in dispute. On Sep-
tember 25 , 1984, the Employer 's president , Donald
Jensen , observed Union Official Michael Straight
speaking to unit employees immediately outside the
Employer's premises . Jensen was located inside his
office and, from a distance of 10 feet, observed
, On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 On May 28 , 1985, the Board adopted the Regional Director's findings
and recommendations overruling the Employer 's Objections 1, 3, and 4
and ordering a hearing on Objection 2, now before us in this proceeding
547
Straight through an office window. Jensen ob-
served Straight displaying to employees a repro-
duction of an official Board sample ballot that had
been altered by the entry of an "X" in the "YES"
box. The sample ballot was encased in clear plastic
in a looseleaf three-ring binder. There is no evi-
dence that the sample ballot displayed by Straight
left his hands at any time or that it contained any
other alterations or markings of any kind other
than wording customarily found on a Board sample
ballot.' Further, there is no evidence regarding
what Straight may have said to employees while
displaying the ballot.
As an initial matter , it may be instructive to em-
phasize that this case does not involve an altered
sample ballot that has been distributed or circulated
to employees . Absent any such distribution or cir-
culation, the accompanying potential, or even like-
lihood , that the document will then be passed
along to employees who may not have received it
from the originating party is not present.4
The paramount factual element of the instant
case is that Union Agent Straight did not distribute
the altered ballot but merely displayed the docu-
ment in a notebook , apparently as an instructional
device. The document did not leave his hands. Fur-
ther, there is no evidence what the union agent
may have said regarding the display. In these cir-
cumstances, we agree with the hearing officer that
employees looking at the three-ring binder contain-
ing the altered sample ballot , as described by
Jensen , could reasonably have concluded that the
party holding these materials was the source of the
alteration and would not necessarily be given the
misleading impression that the Board favored one
of the parties to the election. As the objecting
party, the Employer retained the evidentiary
burden to show that the conduct of the union
agent interfered with the election. Where, as here,
the altered document did not leave the hands of
the union agent , and the evidence shows only the
display of the document , we will not presume that
employees have been misled by the display of the
document alone.
s Jensen credibly testified that while he could not read certain "fine
print" on the document, he could read bold type printed phrases includ-
ing "Official Secret Ballot ," "United States of America ," "National
Labor Relations Board ," "Mark an 'X' in the square of your choice," and
boxes designated "YES" and "NO." Jensen did not identify any wording
on the document expressly indicating the voting group or type of elec-
tion to be conducted and was unable to see whether the sample ballot
was specifically that to be used in the instant case
4 Because this case does not involve the distribution of an altered
ballot , we do not consider it useful , under the facts presented , to apply
the two-prong analytical approach set forth in SDC. In cases involving
distribution , we shall continue to apply the SDC methodology in deter-
mining whether the altered ballot in issue is likely to have misled employ-
ees.
290 NLRB No. 69
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SDC is bottomed on the realistic notion that em-
ployees are generally sophisticated enough to rec-
ognize that sample ballots containing designated
choices often are part and parcel of election cam-
paigns . The interaction between employees and
Union Agent Straight displaying a three-ring
binder containing a sample ballot is precisely the
type of encounter that , standing alone, is likely to
be perceived as electioneering by a party to an
election and not as an endorsement by the govern-
mental authority overseeing the election . Accord-
ingly, we shall overrule the objection.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Teamsters , Chauffeurs,
Warehousemen and Helpers Local Union 631, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America,
AFL-CIO, and that it is the exclusive collective-
bargaining representative of the employees in the
following unit:
All regular full-time and part-time drivers and
maintenance and production employees em-
ployed by the Employer at its facility located
at 3853 Losee Road , North Las Vegas,
Nevada, but excluding all other employees, in-
cluding office clerical employees, salesmen,
confidential employees , administrative employ-
ees, managerial employees , professional em-
ployees , guards , watchmen and supervisors as
defined in the National Labor Relations Act,
as amended.
MEMBER JOHANSEN , concurring.
This is an altered ballot case where a union
agent did no more than show the ballot to unit em-
ployees . The sample did not leave the union agent's
hands . That, coupled with the fact that it was en-
cased in plastic in a looseleaf notebook , makes it
clear that it was an instructional device and its
source was evident . Unlike sample ballots that are
distributed to voters , there was little danger here
that the ballot's origin would be mistaken.
A rigid and unvarying requirement that the party
responsible for preparation of an altered ballot
must be indicated on the ballot , as demonstrated by
this case , makes no sense . That is particularly so as
the Board does not even require any indication that
the ballot has , in fact , been altered.'
On the facts of this case , the source and the in-
structional purpose of the alteration were abun-
dantly clear and there is little likelihood of employ-
ees being misled . I concur in affirming the hearing
officer and certifying the Union as collective-bar-
gaining representative.
' Over my dissent . Professional Care Centers, 279 NLRB 814 (1986)