Silco, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1977

231 N.L.R.B. 110 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silco, Inc., Atlas Division and United Steelworkers of
America, AFL-CIO, Petitioner. Cases 9-RC-
11529 and 9-RM-757
August 3, 1977
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on July 2, 1976,' and the Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions 2 and brief, and hereby adopts the
Regional Director's findings and recommendations.
We agree completely with the Regional Director's
recommendation to set aside the election on the basis
of the Union's Objection 4, relating to the Employ-
er's posting of sample ballots, with the "NO" block
marked with an "X." : However, in light of the
dissenting opinion, it is helpful to review the
reasoning which the Board has applied for more than
20 years, in finding the type of conduct engaged in
by the Employer to be objectionable.
In Allied Electric Products, Inc., 109 NLRB 1270
(1954), the Board stated that it particularly looks
with disfavor upon any attempt to misuse its
processes to secure partisan advantage, and especial-
ly does it believe that no participant in a Board
election should be permitted to suggest either directly
or indirectly to the voters that this Government
agency endorses a particular choice. The Board
concluded at 1272 that:
The reproduction of a document that purports to
be a copy of the Board's official secret ballot, but
which in fact is altered for campaign purposes,
necessarily, at the very least, must tend to suggest
that the material appearing thereon bears this
Agency's approval. As there are many legitimate
methods available to the parties for disseminating
campaign propaganda which clearly do not entail
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tall), was 26 for, 35 against, the Union: there
were no challenged ballots.
2 In the absence of exceptions thereto, the Board adopts pro forma the
Regional I)irector's recommendation that the Union's Objections 1. 2, and 3
and the "Other Conduct" be overruled.
:' The Regional Director's report. in pertinent part. is attached to and
incorporated in this Decision as Appendix A.
4 Those misspellings and interlineations referred to by our dissenting
colleague are contained in only one word. That can hardly be deemed
significant Nor do we deem significant the omission of the printed
instructions contained at the bottom of the official ballot.
231 NLRB No. 23
an apparent involvement of the Board or its
processes, we believe it is unnecessary to permit
ultimate freedom to partisans in election cases to
reproduce official Board documents for campaign
propaganda purposes.
As the Regional Director correctly finds, the Board
has set aside numerous elections where the parties
have used facsimiles of the Board's official ballot and
have marked those facsimiles to urge the employees
to vote one way or the other. The Board has never
held that the facsimile must be an "exact" replica of
the Board's official ballot. In Wallace & Tiernan,
Incorporated, 112 NLRB 1352 (1955), the Board set
aside an election where the employer's sample ballot
differed from the official ballot in color, type, size,
and placement of the word "sample."
Turning to the facts of the instant case, the wording
of the ballot supplied by the Employer is identical to
that of the official ballots,4 and while a comparison
of the Employer's ballot with the official ballot may
leave one with the impression that the Employer's
ballot was not "official," the ballots were not
conveniently juxtaposed for the benefit of the
employees. Indeed, there is absolutely no indication
that the Employer was responsible for the altered
ballot, for the document bears no identification
which would inform the reader as to its source. Thus,
the basic objection mentioned in Allied Electric
remains; namely, that this facsimile necessarily tends
to suggest that the material appearing thereon bears
the Board's approval.5
In view of all the foregoing, we conclude that the
fact that the facsimile posted by the Employer was
not an "exact" replica of the Board's ballot does not
suffice to neutralize the misleading effect of the
altered ballot orjustify its use in this case.
Accordingly, we find, like the Regional Director,
that by posting the marked ballots the Employer
interfered with the employees' freedom of choice in
the election, and we shall direct that the election
herein be set aside and shall direct a new election.
[Direction of Second Election omitted from publi-
cation.] 6
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I would overrule
Objection 4 and certify the results of the election. My
5 In those few cases where alterations were found permissible, several
other factors were present. In Associated Lerner Shops of America, Inc., 207
NLRB 348 (1973), the Regional Director, with the Board's approval,
emphasized that the employer identified itself as the author of the added
comments. In Rett Electronics, Inc., a Whollv-Owned Subsidiary of Tokheim
Corporation, 169 NLRB 1111 (1968), the union's campaign pamphlet
contained a sample ballot with the Board's name, but omitted the names of
both the employer and the union.
I [Excelsior footnote omitted from publication.]
I10
SILCO, INC., ATLAS DIV.
colleagues affirm the Regional Director who recom-
mended sustaining the Union's Objection 4 based
upon his conclusion that a campaign poster of the
Employer impermissibly tended to suggest that the
Board was urging the employees to vote "NO," i.e.,
against the Union.
The Employer's campaign poster is to be weighed
against the standards the Board set out in Allied
Electric Products.' 7
The reproduction of a document that purports to
be a copy of the Board's official secret ballot, but
which in fact is altered for campaign purposes,
necessarily, at the very least, must tend to suggest
that the material appearing thereon bears this
Agency's approval. .... [T]he Board has decided
that in the future it will not permit the reproduc-
tion of any document purporting to be a copy of
the Board's official ballot, other than one com-
pletely unaltered in form and content and clearly
marked sample on its face ....
I have attached hereto as Appendix B a photocopy
reduction of the poster which the Employer exhibited
in this case. The poster actually measured 22 by 28
inches. The "Ballot" portion was written in blue and
the words "Sample Ballot," "Vote 'No' on July 2,"
and the arrow were written in red. I have also
attached as Appendix C a copy of the notice of the
election posted at the Employer's premises which
includes thereon an official sample ballot.
When the official sample ballot is compared with
the Employer's poster, it is obvious that by no stretch
of the imagination could the latter ever be interpre-
ted as being a reproduction of the former. First, the
official ballot is a printed document with the parties
participating in the election typed in. The Employer's
poster, by contrast, has clearly been handwritten in
its entirety. In addition, the poster contains misspell-
ings, interlineations, and fails to recite all of the
instructions contained on the official sample ballot. 8
When these factors are taken in combination with
the enlarged size of the poster and the various
colored inks used thereon, it is unfathomable that
anyone would be misled into believing that the poster
in any way suggested Board disapproval of the
Petitioner.
I am also attaching hereto as Appendix D a copy of
a sample ballot distributed by the employer in
A ssociated Lerner Shops of A merica, Inc. 9 In that case
the Board realistically concluded (at 349) that the
sample ballot there "purports to be nothing more
than it actually is, a campaign document prepared
for use by the Employer." I think it obvious that the
sample ballot used in Associated Lerner Shops much
more closely comports with an official Board ballot
than does the campaign poster here.
It is difficult to understand how the Regional
Director and my colleagues reached their conclusion.
Possibly, it stems from the Regional Director's
inaccurate statement that "what the Board has found
permissible [as campaign propaganda] are reproduc-
tions of ballots where the Board's name is not used."
In both Rett Electronics, Inc., 10 and Associated
Lerner Shops, supra, for example, the Board found
permissible sample ballots which used the Board's
name. In my judgment, the poster which the
Regional Director found proscribed was permissible
campaign propaganda, and I dissent from my
colleagues' failure to find it simply that."
7 109 NLRB 1270. 1272(1954).
8 My colleagues' statement that "the wording of the ballot supplied by
the Employer is identical to that of the official ballots [fn. omitted]" is
clearly incorrect as the Employer's ballot does not contain the instructions
which are at the bottom of official ballots.
9 207 NLRB 348 (1973).
"' 169NLRB III( (1968).
" While I agree with the Regional Director that large posters may still be
proscribed facsimiles of the Board's official ballot (Pyramid Mouldings. Inc.,
121 NLRB 788 (1958)). it is clear that the poster here was not the "exact
replica" of the ballot referred to in Pyramid Mouldings. Contrary to the
intimation of my colleagues. I do not say that any poster may be used with
impunity except for an exact replica: as to what degree of similarity to the
Board's official ballot I will find impermissible. I must leave to a future
case however, clearly Pyramid Mouldings does not dispose of the issue.
APPENDIX A
OBJECTION NO. 4:
There are no facts in dispute regarding this Objection,
which alleges that the Employer posted sample ballots with
"yes" and "no" blocks reversed, and the ballot marked
with an "X." The Employer supplied the undersigned with
the actual poster in question. The poster measures 22 by 28
inches. At the top of the original the words "Sample
Ballot" are printed in red ink, as are the words, "Vote No
on July 2" and the accompanying arrow.
The issue presented, therefore, is whether the poster
violates the Board's policy as established in Allied Electric
Products, Inc., 109 NLRB 1270. There, the Board stated:
The reproduction of a document that purports to be a
copy of the Board's official secret ballot, but which in
fact is altered for campaign purposes, necessarily, at the
very least, must tend to suggest that the material
appearing thereon bears this Agency's approval....
IT]he Board has decided that in the future it will not
permit the reproduction of any document purporting to
be a copy of the Board's official ballot; other than one
completely unaltered in form and content and clearly
marked sample on its face ....
Since 1954, the Board has set aside numerous elections
where the parties have used facsimiles of the Board's
official ballot and have marked those facsimiles to urge the
employees to vote one way or the other. In such cases, the
Board has set aside those elections where the Board's name
111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is used, or where it appears that the facsimile is from the
United States Government.7
However, the Board has said it will not set aside elections
where the Board's official ballot has been duplicated by
one of the parties, if it appears that the duplicated ballot
was issued, not by the Board, but by one of the parties. See
Associated Lerner Shops, supra. There, the Board reasoned
that the ballot in question "purports to be nothing more
than it actually is, a campaign document prepared for use
by the Employer and we deem it unlikely that employees
would be lead [sic] to believe that this Board endorsed the
position expressed therein." See also Kennametal, Inc., 119
NLRB 1236; and Rett Electronics, Inc., 169 NLRB II11,
where a union pamphlet contained a sample ballot with the
Board's name, but omitted the names of both the employer
and union.
What the Board has found to be permissible, in such
cases, are reproductions of ballots where the Board's name
is not used.8
It is the contention of the Employer herein that the
poster in question is permissible under the Board's cases
because: (I) the poster was one of five campaign posters
that the Employer had placed in its plant and the
employees knew that these posters had been posted by the
Employer; (2) the large size of the poster clearly indicated
to the employees that it was not an official document of the
Board; and (3) the poster was clearly marked "Sample."
7 Rebmar. Inc. 173 NLRB 1434; Vernon Convalescent Center Company,
194 NLRB 439 (1971): Regency Electronics, Inc., 200 NLRB 625, enfd. 499
F.2d 1131 (C.A. 7, 1973); Arlen-Burk, 187 NLRB 1030; Certain-Teed
Products Corp.. 173 NLRB 229; Modern Chevrolet Co., 169 NLRB 809; The
Borden Company, 137 NLRB 1613; United States Gypsum Company, 124
NLRB 1026: Pyramid Mouldings, Inc., 121 NLRB 788; Zimmer Industries,
Inc.. 120 NLRB 317; Hughes Tool Company, 119 NLRB 739.
It should also be noted that the posters did not carry any
identification which would inform the reader as to the
source of the campaign material. As to the size, the Board
has held, in a case similar to the instant one, that a large
poster may still be a facsimile of the Board's official ballot.
In Pyramid Mouldings, Inc., supra, the Board set aside the
election where the employer had posted four large
cardboard placards, measuring 28 by 22 inches, bearing an
exact replica of the Board's official sample ballot, which
measured 12 by 18 inches. However, in Pyramid, the
impermissible posters also carried the designation "Official
Sample Ballot." The Board there adopted the recommen-
dations of the Regional Director that "[A]lthough there
was no physical distribution of these reproductions, but
simply an exhibition thereof, it would nevertheless appear
that the basic objection mentioned in Allied Electric
remains, namely that this reproduction necessarily tends to
suggest that the material appearing thereon bears the
Board's approval."
Based on the foregoing, the undersigned concludes that
the poster herein also tends to suggest that the Board was
urging the employees to vote "no." Accordingly, after
having carefully weighed and reviewed all the evidence
regarding Objection No. 4, the undersigned is of the
opinion that it has merit and recommends that it be
sustained.
' Triangle Super Dollar Market, 225 NLRB 403; Stedman Wholesale
Distributors, Inc., 203 NLRB 302; AMF Beaird, Inc., 177 NLRB 599;
Custom Molders of P.R. and Shaw-Harrison Corp., 121 NLRB 1007; The
Glidden Company, 121 NLRB 752: Paula Shoe Co., Inc., 121 NLRB 673. and
Independent Nail & Packing Company, 120 NLRB 677.
112
SILCO, INC., ATLAS DIV.
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APPENDIX C
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SILCO, INC., ATLAS DIV.
APPLNDiX D
DATE: Febr.ary 21, 1973 -V,
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iTArAIL, UXOLSALZ AN'O LPA '.kJ7?T SOLkz UN'lON, ATL-C;07
MARK AN "X" IN THiE SQUARE OF YOUR CHOICE
NO
DO NOT SIGN THIS ALLOT7. Fold and drop in ballot box.
It you spc;l this ballot return it to Ihe Eori Afscnt for a new one.
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Issued by Lerner Siops
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