Rosewood Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1986

278 N.L.R.B. 722 (N.L.R.B. 1986)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosewood Mfg. Co., Inc. and Amalgamated Clothing
and Textile Workers Union , AFL-CIO, Peti-
tioner. Case 26-RC-6469
26 February 1986
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF
ELECTION
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held 1 October 1982 and the Regional Di-
rector's report recommending disposition of them.
The election was conducted pursuant to a Decision
and Direction of Second Election issued by the
National Labor Relations Board.' The tally of bal-
lots shows 24 for and 73 against the Petitioner,
with no challenged ballots.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Regional
Director's findings and recommendations2 only to
the extent consistent with this decision, and fords
that a certification of results of election should be
issued.
In its objections, the Union alleged that the Em-
ployer improperly used, defaced, and posted on its
bulletin board official National Labor Relations
Board election documents. The alteration consisted
of the caption "Vote No" handwritten over the top
half of the notice with an arrow drawn to the
"No" portion of the sample ballot. The Union con-
tended that the "No" box had been marked with an
"X".3 The Employer acknowledged that its presi-
dent was responsible for altering the notice.
In his report, the Regional Director found that
the Employer defaced an official Board notice of
election for its own partisan campaign purposes
and in a manner tending to mislead potential voters
by creating the impression that the Board has allied
itself with a particular viewpoint in the election.
The Regional Director recommended that the ob-
jection be sustained and the second election be set
aside based on Allied Electric.4
In a recent case, SDC Investments., 274 NLRB
556 fn. 4 (1985), which issued after the Regional
Director's report herein, we reexamined the Allied
Electric rule in light of our decisions in Midland
' 263 NLRB 420 (1982)
2 In the absence of exceptions, we adopt, pro forma, the Regional Di-
rector's recommendation that the Union's Objection 2 be overruled
8 In the copy of the altered notice supplied by the Employer, there-is
no "X" in the "No" box. Further, the alterations were made to a notice
of election for the first election held on 18 December 1981, rather than
the notice of election for the second election
4 Allied Electric Products, 109 NLRB 1270 (1954)
National Life Insurance Co.5 and Riveredge Hospi-
tal.6 In SDC, we held that "the crucial question
should be whether the altered ballot in issue is
likely to have given the misleading impression that
the Board favored one of the parties to the elec-
tion. When it is evident that the altered ballot is
the work of a party, rather than the Board, em-
ployees are perfectly capable of judging its persua-
sive value." Above, 274 NLRB 556. Accordingly,
we adopted the view expressed by former Member
Penello in his dissent in Mercury Industries, 238
NLRB 896, 897 (1978), "that an altered ballot that
on its face clearly identifies the party responsible
for its preparation is not objectionable and will not
serve as the basis for setting aside an election." Id.
We also held in SDC that when the source of
the altered ballot7 is not clearly identified, as is the
case here, it becomes necessary to examine the
nature and content of the material in order to de-
termine whether the document has the tendency to
mislead employees into believing that the Board
favors one party's cause. We will make such deter-
minations on a case-by-case basis, since "bright
line" distinctions are difficult to draw in this area.
As we noted in SDC, parties wishing to avoid the
uncertainties inherent in this area may do so by re-
fraining from using ballot reproductions as cam-
paign materials or, if such materials are used, by
clearly identifying the source of the materials on
the face of the documents.
In this case, the Board notice used by the Em-
ployer bore no indication of the party responsible
for its alteration. Therefore, we must examine the
nature and contents of the document to determine
whether it was likely to give voters the misleading
impression that the Board favored the Employer in
the election. As indicated above, the message
"Vote No" was handwritten in large letters across
the top of the notice for the first election and an
arrow was drawn to the "No" box on the sample
ballot below. We fmd that the handwritten message
"Vote No" scrawled across the notice as well as
the drawn arrow was clearly discernible as an addi-
tion made by the Employer and sufficiently distinct
from the printed notice and sample ballot so as to
preclude the suggestion that the Board was endors-
ing the Employer.8 Additionally, we find that the
5 263 NLRB 127 (1982)
6 264 NLRB 1094 (1982)
7 Although the conduct found objectionable in Allied Electric Products,
supra, and subsequent cases involved the alteration of a sample ballot, we
apply the rationale set forth in SDC to the alteration of official Board
notices of election
8 In view of the fact that we do not find objectionable the Employer's
alteration of the notice, we find it unnecessary to address the issue of
whether the "No" box was marked
Continued
278 NLRB No. 103
ROSEWOOD MFG. CO.
Employer's use of a notice from the previous elec-
tion would have alerted voters that the alteration
was not endorsed by the Board. It is unlikely that
once voters saw that the altered notice was for an
election held over 9 months previously they would
have thought that it was an official notice from the
Board for the upcoming election . We therefore
conclude that the Employer 's use of-the notice was
not likely to mislead employees into believing that
the Board favored its cause. Accordingly, we over-
rule the objection and certify the results of the
election.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Amalgamated Clothing
and Textile Workers Union, AFL-CIO, and that it
is not the exclusive representative , of these bargain-
ing unit employees. -
MEMBER DENNIS , dissenting.
Unlike my colleagues , I find the Employer's use
in its campaign of a defaced notice of election ob-
jectionable pursuant to authority this Board has ex-
pressly validated.
The Employer's president wrote by hand the
words, "VOTE NO," across the top of the notice
and drew an arrow to the sample ballot's "NO"
box. These were the sole alterations to the ballot
on the , notice of election . In reconsidering parties'
campaign use of altered Board election documents
Contrary to our dissenting colleague, we find that the facts in this case
differ from those in Silco, In'c., 231 NLRB 110 (1977). In Silco, the mes-
sage "Vote `No' on July 2!" was handprinted in the same style as the
hand-printed sample ballot posted by the employer. The partisan message
was not sufficiently distinct from the facsimile ballot and tended to sug-
gest that the alteration bore the Board 's approval . We are not, as our col-
league contends , creating a per se rule upholding alterations except
where handwritten ballots are involved . Consistent with the Board 's deci-
sion in SDC, supra, we have examined the nature and content of the ma-
terial at issue here . We have determined that under the circumstances of
this case , because the handwritten message was clearly discernable as an
addition to the printed ballot it was not likely to have given voters the
impression that the Board favored one of the parties in the election
I
723
in SPC Investment, Inc., 274 NLRB 556, 556
(1985), we held that "the crucial question should be
whether the altered ballot in issue is likely to have
given voters the misleading impression that Board
favored one of the parties . . . ." We further de-
cided employees would not be misled by an altered
ballot clearly identifying on its face the party re-
sponsible for any changes, but that the "nature and
contents of the material" would have to be exam-
ined on a "case-by-case basis" in other circum-
stances. Id.
As the Employer here did not identify itself on
the document's face as having altered the notice of
election, this case must be judge on its individual
circumstances. In Silco, Inc., 231 NLRB 110 (1977),
cited with approval footnote 5 of SDC, above, the
Board found objectionable the 'Employer's posting
of handprinted facsimile sample ballots with the
words "Vote 'NO' ON JULY 2!" written just be-
neath the facsimile and an arrow drawn to the
"NO" box. The Board observed the document did
not show the Employer was responsible, and rea-
soned that, 'although not an exact NLRB ballot
replica, "this facsimile necessarily tends to suggest
that the material appearing thereon bears the
Board's approval ." (Footnote omitted.) Id.
As no meaningful distinction exists between the
instant facts and those in Silco , a case remaining
viable after SDC, I would ; set aside the election.'
1 The majority seeks to distinguish Silco on the ground that the alter-
ation there was handprinted , as was 'the facsimile ballot , while here the
"Vote No" message was handwritten across the face of a conventionally
printed notice of election and sample ballot . My colleagues thus conclude
that the Silco addition was not "sufficiently distinct " from the ballot and,
unlike here, likely to mislead potential voters.
The difficulty with this position is'that the Sdco Board concluded the
election should be set aside even though an "exact" ballot replica was not
used ("[TJhat the ... facsimile posted by the Employer was not an
`exact' replica of the Board's ballot does not suffice to neutralize the mis-
leading effect of the altered ballot ..." 231 NLRB 110.) Accordingly,
my colleagues turn inside out $ilco's reasoning by suggesting the use of a
printed ballot justifies upholding the election . Most often alterations to a
printed ballot are by hand. If the fact that the underlying ballot is printed
suffices to validate any addition , then the majority has created a per se
rule upholding alterations except where handwritten ballots are involved,
contrary to Slice and SDC. See SDC, 274 NLRB 557.