Sdc Investment, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 556 (N.L.R.B. 1985)

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SDC Investment , Inc. and Butchers' Union Local
498, United Food and Commercial Workers, Pe-
titioner . Case 20-RC-15319
28 February 1985
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board has consid-
ered an objection to an election held on 16 Decem-
ber 1982 and the hearing officer's report recom-
mending disposition of the objection. The election
was conducted pursuant to the Acting Regional
Director's Decision and Direction of Election. The
revised tally of ballots, made after the parties
agreed to the counting of 7 previously challenged
ballots, shows 49 for and 40 against the Petitioner
(Local 498) with 2 challenged ballots, an insuffi-
cient number to affect the results. The Regional
Director overruled all of the Employer's objections
to the election except one, on which he directed a
hearing be held before a hearing officer.
The Board has reviewed the record in light of
the exceptions and briefs, has adopted the hearing
officer's findings and recommendations only to the
extent consistent with this decision, and finds that
the election must be set aside and a new election
held.
The hearing officer's recommendation that the
election be set aside was based on his finding that,
shortly before the election, Local 498 prepared a
leaflet that displayed on one side a handwritten
Spanish language facsimile of the official NLRB
election ballot stating at the bottom in Spanish,
"Remember to vote yes on December 16th." On
the reverse side was an unaltered photocopy of the
Board's official sample ballot in English. Local 498
excepts to the hearing officer's findings that it was
responsible for distribution of the leaflet and that
the leaflet constituted an objectionable reproduc-
tion of a Board document altered for partisan pur-
poses. The Employer excepts to the hearing offi-
cer's failure to order that the notice of the new
election include a statement of the reason why the
initial election was set aside, as was done in Lufkin
Rule Co., 147 NLRB 341 (1964). While we find
merit only in the Employer's exception, we modify
the hearing officer's report as follows.
1.
The hearing officer found that union organizer
James Sierra, an undisputed agent of the Petitioner,
gave one copy of the leaflet to union sympathizer
Moses Esquivel at Esquivel's home in the presence
of a second employee. Although the hearing officer
discredited certain testimony the Employer offered
concerning distribution of the leaflet, the hearing
officer did find that the leaflet "was circulated and
ultimately came to the attention of the Employer."
The hearing officer concluded that Sierra's conduct
warranted setting aside the election because the
leaflet constituted a reproduction of a Board docu-
ment and, under Allied Electric Products, 109
NLRB 1270 (1954), reproduction of such a docu-
ment for partisan purposes was per se objectionable
conduct. The hearing officer also concluded that
Esquivel was not an agent of Local 498, but orga-
nizer Sierra nevertheless must be held to have rea-
sonably foreseen that Esquivel would circulate the
leaflet.
We agree with the hearing officer's implicit find-
ing that Esquivel circulated the leaflet and the
hearing officer's conclusion that Local 498 must be
held responsible for this conduct, but we disagree
with the hearing officer's finding that Esquivel was
not an agent of Local 498, at least for the purpose
of circulating the leaflet. Sierra testified that he
was prompted to prepare the leaflet by the request
of Esquivel, a union adherent, who told Sierra that
"there wasn't anything in Spanish." Sierra testified
that he gave a single copy of the leaflet to Esquivel
so Esquivel could tell his Spanish-speaking co-
workers, who comprised about half of the bargain-
ing unit , what the English- language sample ballot
said and could show them how to vote. Sierra also
testified that he did not ask Esquivel to distribute
the leaflet, but told him to "talk to the people
about it." In explaining the reason for the language
on the leaflet saying, "Remember to vote yes on
December 16th," Sierra stated that he told Esqui-
vel to "remember to tell these people to vote yes
on the 16th, that's the most important thing." Since
the leaflet was given to Esquivel as an aid for him
in soliciting votes, we will presume, absent evi-
dence to the contrary and in light of Esquivel's
failure to testify, that Esquivel showed the leaflet
to other employees.' Accordingly, we conclude
that the leaflet was circulated to a sufficient
number of employees that it could have affected
the election results.
Additionally , since Sierra instructed Esquivel to
"talk to the people" about the leaflet in the course
of soliciting their votes, Esquivel was acting within
the scope of his general authority from the Union's
organizer when he circulated the leaflet, even
though Sierra did not specifically authorize that
1 Member Dennis finds it unnecessary to "presume" that Esquivel
showed the leaflet to other employees, because the record supports the
hearing officer's implicit finding that Esquivel did in fact distribute the
leaflet
274 NLRB No. 78
SDC INVESTMENT
particular act. Therefore, at least for the purposes
of circulating the leaflet, Esquivel was acting as an
agent of the Union. See Bio-Medical Applications of
Puerto Rico, 269 NLRB 827 (1984). Accordingly,
Esquivel's circulation of the leaflet is attributable to
Local 498, and we reject Local 498's argument to
the contrary.
II.
We decline to adopt the hearing officer 's state-
ment that the reproduction of Board documents for
partisan purposes is per se objectionable conduct.
In Allied Electric , supra, the Board announced that
it would not permit reproduction of any document
purporting to be a copy of the Board ' s official
ballot , other than one completely unaltered, and
that it would set aside the results of an election in
which the winning party violated this prohibition.
The Board 's interpretation of this rule over the
three decades of its existence has varied . In some
cases, the Board has taken a strict , literal approach,
focusing on whether the rule by its terms was vio-
lated without considering whether the altered
ballot at issue would have given the voters the mis-
leading impression that the Board favored the
party that circulated the altered ballot . In other
cases, the Board has placed primary emphasis on
the question whether the altered ballot would have
been likely to mislead the voters . Compare Mercury
Industries , 238 NLRB 896 (1978), and Custom
Molders of Puerto Rico, 121 NLRB 1007 ( 1958),
with Associated Lerner Shops of America, 207
NLRB 348 (1973 ), and Stedman Wholesale Distribu-
tors, 203 NLRB 302 (1973).
In Midland National Life Insurance Co., 263
NLRB 127 ( 1982), we recently held that we would
no longer set aside elections on the basis of mis-
leading statements made during election campaigns.
Subsequently , in Riveredge Hospital, 264 NLRB
1094 (1982), we extended this holding to encom-
pass misrepresentations of Board actions. The deci-
sion in Midland was grounded in part on our belief
that employees are mature individuals who are ca-
pable of recognizing campaign propaganda for
what it is and evaluating its claims. Thus, we stated
in Midland , "As long as the campaign material is
what it purports to be, i.e., mere propaganda of a
particular party, the Board [will] leave the task of
evaluating its contents solely to the employees."
263 NLRB at 131, quoting General Knit of Califor-
nia, 239 NLRB 619, 629 (1978) (Member Penello
dissenting).
Having reexamined the Allied Electric rule in
light of our decisions in Midland and Riveredge, we
believe that the crucial question should be whether
the altered ballot in issue is likely to have given
557
voters the misleading impression that the Board fa-
vored one of the parties to the election. When it is
evident that the altered ballot is the work of a
party, rather than the Board, employees are per-
fectly capable of judging its persuasive value. We
therefore reject the view that the mere existence of
an altered ballot is a per se violation of the Allied
Electric rule, as this approach results in invalidating
elections even when the supposedly objectionable
campaign material is unlikely to mislead any rea-
sonable voter into believing that the Board sup-
ported a particular party in the election. Accord-
ingly, we adopt the view expressed by former
Member Penello in his dissent in Mercury Indus-
tries, supra, that an altered ballot that on its face
clearly identifies the party responsible for its prepa-
ration is not objectionable and will not serve as the
basis for setting aside an election. See also Best
Western Motel, 248 NLRB 1319 fn. 3 (1980) (view
of Member Penello). When the party responsible
for preparation of the altered ballot is clearly iden-
tified on the face of the material itself, 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. 2
When the source of the altered ballot is not
clearly identified, 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.3 Such determinations
must be made on a case-by-case basis, and "bright
line" distinctions are difficult to draw in this area.
However, parties that wish to avoid the uncertain-
ties inherent in this area may do so by refraining
from using altered ballots as campaign materials or,
if such materials are used, by clearly identifying the
source on the face of the documents.
III.
In the present case, the leaflet prepared by Local
498 bore no indication of the party responsible for
its preparation. Therefore, we must examine the
2 Prior Board decisions that failed to apply this standard, such as Mer-
cury Industries, supra , and Custom Molders of Puerto Rico, supra , are over-
ruled to the extent they are inconsistent with our decision today
In accordance with our usual practice , we shall apply our new stand-
ard to all pending cases in whatever stage Midland National Life Insur-
ance, supra , 263 NLRB at 133 fn 24
s When the source of an altered ballot is not clearly identified,
Member Hunter would find it appropriate to examine the circumstances
of the altered ballot ' s circulation , as well as its nature and contents, in
determining whether the document has the tendency to mislead employ-
ees into believing that the Board favors one party over the other
Member Hunter believes that in some circumstances the manner in which
an altered ballot is distributed makes clear to employees that it has been
prepared by one of the parties In his view , a rule prohibiting the use of
altered ballots in such circumstances is unnecessarily rigid
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature and contents of the leaflet to determine
whether it was likely to give the voters the mis-
leading impression that the Board favored Local
498 in the election. As stated above, one side of the
leaflet contained a hand-printed Spanish translation
of the ballot structured in the same format as the
Board's sample ballot with an additional line at the
bottom stating in Spanish, "Remember to vote yes
on December 16th." At the top of this side was the
NLRB seal, which had been taken from an official
Board document. The "[r]emember to vote yes"
statement was hand-printed in the same style as the
rest of the Spanish side of the leaflet and appeared
to be an integral part of the text, rather than an ad-
dition to it.
Although the Spanish language side of the leaflet
was hand-printed, the presence of the Board seal at
the top and the official Board sample ballot on the
reverse side did much to make the document
appear to be official. Moreover, employees might
well have assumed that the Board's printed sample
ballots were available only in English,' so the fact
4 Neither party requested the Board to supply ballots in Spanish for
the election , and it did not do so
that the Spanish version of the sample ballot was
handwritten would not necessarily exclude the pos-
sibility that it was prepared informally by the
Board for this election.5 Therefore, we conclude
that, by its nature and contents, the leaflet was
likely to be perceived by voters as an official
Board document and was likely to lead Spanish-
speaking voters into believing that the Board
wanted them to vote "yes" in the election. Accord-
ingly, we conclude that by circulating the leaflet,
Local 498 engaged in objectionable conduct, and
we adopt the hearing officer's recommendation
that the election be set aside and a second election
be held.6
[Direction of Second Election omitted from pub-
lication.]
s Indeed , the Board has held an English -language sample ballot pre-
pared by a party to be an objectionable ballot reproduction even though
handwritten See Sdca Inc, 231 NLRB 110 (1977)
8 As the Employer has objected to the hearing officer's failure to order
that the notice of the new election include, pursuant to Lufkin Rule Co.,
supra, a statement of the reason for the first election being set aside, we
order that such language shall be included in the notice of the new elec-
tion See NLRB Casehandling Manual (Part Two ), Representation Pro-
ceedings, sec. 11452 1