Sofitel San Francisco Bay

National Labor Relations Board - Board Decisions

Nov 24, 2004

343 N.L.R.B. 769 (N.L.R.B. 2004)

SOFITEL SAN FRANCISCO BAY
343 NLRB No. 82
769
French Redwood, Inc. d/b/a Sofitel San Francisco Bay
and Cemetery Workers & Greens Attendants,
Local 265, SEIU, AFL–CIO. Case 20–RC–17923
November 24, 2004
DECISION AND DIRECTION OF SECOND
ELECTION
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held February 18, 2004,1 and the hearing officer’s report
recommending disposition of them (pertinent portions
attached as appendix A). The election was conducted
pursuant to a Decision and Direction of Election issued
on January 23. The tally of ballots shows 27 for and 24
against the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations only to the extent consis-
tent with this Decision and Direction, and finds that the
election must be set aside and a new election held.
We find that the hearing officer erred in overruling the
Employer’s Objection 2, which alleged that the Union
misled voters to believe that the Government favored the
Union in the election. We sustain Objection 2 and set
aside the election. Therefore, we find it unnecessary to
pass on the hearing officer’s recommendations to over-
rule the Employer’s remaining objections.
I. FACTS
During the week before the election, several employ-
ees received a 1-page copy of a sample Board ballot by
mail, in an envelope bearing the Union’s return address.
(As an example, Employer exhibit 1a, which is represen-
tative of each of the mailings, is attached as appendix
B.)2 As the hearing officer described, the document ap-
pears to be a photocopy of the middle page of a Board
election notice with a sample ballot located at the bottom
of the document. Consistent with the items contained in
the Board’s standard notice, located at the top of the
document is the unit description; at about the middle of
the document, the date, time, and place of the election are
listed; and, at the bottom half of the document is the
sample ballot. The document is written in Spanish, the
primary language of a majority of the bargaining unit.
The word “MUESTRA” (“SAMPLE”) is typed in large let-
ters across the sample ballot. The document also con-
tains items that are not part of the Board’s standard no-

1 All dates are in 2004 unless otherwise specified.
2 At the hearing, the Union’s organizer denied that the Union was the
source of the document. However, no evidence was introduced that
would suggest anyone else was responsible for sending it.
tice, including a large “X” handwritten through the “yes”
box on the sample ballot. At the bottom of the docu-
ment, the phrase “POR FAVOR-SI SE PUEDE” is handwrit-
ten in capital letters. According to the Board’s inter-
preter at the hearing, this phrase translates to, “Please-
Yes it can be done,” or “Please-It can be yes if you can,”
as emphasized by a square drawn around the word “Si”
(“Yes”). In addition, each recipient’s first name was
handwritten in the area to the left of the time and place of
the election on the document that they received.
The hearing officer recommended overruling this ob-
jection, applying the Board’s standard in SDC Invest-
ment, Inc., 274 NLRB 556 (1985), discussed infra.3 The
hearing officer found that although the source of the
document cannot be ascertained on its face, the document
did not create the impression that the Board favored the
Union in the election. Relying on the employee’s name,
“X” in the “yes” box, and the Spanish phrase handwritten
on each document, as well as the Union’s return address
on the envelope, the hearing officer concluded that the
sample ballots were “sufficiently distinct from the
Board’s preprinted standard ballots so as to preclude a
reasonable impression that the markings emanated from
the Board.” The Employer excepts, arguing that the
hearing officer erred in finding that the handwritten
markings on the document would lead a voter to believe
it was from the Union. The Employer asserts that em-
ployees could still believe that the Board prepared the
document even if they also could conclude, based on the
envelope’s return address, that the Union distributed the
document.
II. ANALYSIS
An altered ballot is not objectionable if its source is
clearly identified on its face. SDC Investment, Inc., 274
NLRB 556, 557 (1985). If the source is not clearly iden-
tified, the Board examines the nature and contents of the
document to determine on a case-by-case basis whether
the document has the tendency to mislead employees into
believing that the Board favors one of the parties to the
election. Id. The Board considers extrinsic evidence,
such as the circumstances of the document’s distribution,
in analyzing this factor. 3-Day Blinds, Inc., 299 NLRB
110, 111 (1990) (citing Baptist Home for Senior Citizens,
290 NLRB 1059, 1060 fn. 4 (1988), and cases cited
therein). However, the fact that a party distributed the
document, without more, does not establish that the party
prepared the document. Id. at 112. Parties can avoid

3 Although the hearing officer applied the SDC Investment standard,
she noted the Board’s reliance on Brookville Healthcare Center, 312
NLRB 594 (1993), discussed infra, in similar cases for additional sup-
port.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD770
uncertainty by either refraining from using altered ballots
as campaign materials or by clearly identifying the
source of the materials. SDC Investment, supra, 274
NLRB at 557.
The Board has found altered sample ballots similar to
the document in this case to be objectionable. As here,
the sample ballots found to be objectionable in prior
cases included a complete or nearly complete copy of the
Board’s official ballot marked with an “X” in one box
and an added message on the document, with no clearly
partisan slogans or cartoons. For example, the document
in SDC Investment, supra, was a copy of the Board’s
official sample ballot printed in English, on the opposite
side of a hand-printed Spanish translation and the mes-
sage, “Remember to vote yes on December 16th.” The
document in Archer Services, 298 NLRB 312 (1990),
was a copy of the Board’s official sample ballot with the
printed heading, “To Vote Against The Union” at the
top, on the opposite side of a list of “voting facts” ad-
dressing voting procedures. Finally, the document at
issue in 3-Day Blinds, supra, was a copy of the Board’s
official sample ballot with the message, “THIS IS HOW
TO MARK YOUR BALLOT TO GIVE THE NEW OWNERS A
CHANCE” printed at the bottom.
We agree with the hearing officer that the SDC In-
vestment standard should be applied to the sample ballot
at issue in this case. We also agree that the document on
its face does not clearly identify its source. However,
contrary to the hearing officer, we find, based on an ex-
amination of the nature and contents of the document,
that it had the tendency to mislead employees into be-
lieving that the Board favored the Union in the election.
As in the cases discussed above, the document in this
case included a complete copy of the Board’s official
sample ballot, as well as the same details about the elec-
tion that are included on the Board’s official notice, and
a hand-printed message indicating support of a party to
the election. However, the document contained no
clearly partisan slogans or cartoons, and the handwritten
markings were even less clearly attributable to a party to
the election than those involved in the cases discussed
above. Nor does the Union’s return address on the enve-
lope containing the sample ballot establish that the Board
did not prepare it, because distribution by a party, with-
out more, does not establish the source of the document.
3-Day Blinds, supra, 299 NLRB at 112. Therefore, we
find that the distribution of the altered sample ballot con-
stituted objectionable conduct sufficient to affect the
results of the election.
Moreover, we find that the Board’s decision in Brook-
ville Healthcare Center, 312 NLRB 594 (1993), does not
require a different result. The Board’s revised notice of
election includes language disavowing the Board’s role
in any defacement and specifying the Board’s neutrality
in the election process. Therefore, the Board held in
Brookville Healthcare that the SDC Investment analysis
is no longer required “in all cases involving defacement
of a revised notice” because the new language precludes
a reasonable impression that the Board endorses any
choice in the election. Id. at 594. Due to the “promi-
nence of the bold, large-print ‘warning’” on the notice
that has been defaced, the Board found that an employee
would be as likely to see this warning as another marking
on the same document. Id.
This case does not involve defacement of the Board’s
official notice, as in Brookville Healthcare. Rather, the
defaced document is a copy of part of the Board’s notice,
pertinently a defaced sample ballot, and the document
does not include a copy of the revised disclaimer lan-
guage to which the Board referred in Brookville Health-
care. In VIP Health Care Services v. NLRB, 82 F.3d
1122, 1130 (D.C. Cir. 1996), the D.C. Circuit reasoned
that the holding in Brookville Healthcare, involving a
defaced notice of election, was not directly on point be-
cause VIP Health Care involved an altered sample ballot
mailed to voters. The court emphasized that the Board in
Brookville Healthcare only abandoned the SDC Invest-
ment analysis in cases that involve “the defacement of a
revised notice,” because the revised disclaimer language
is sufficient to preclude a reasonable belief that the Board
endorses a party to the election. Id. (emphasis in origi-
nal). However, the court stated that the Board reasona-
bly relied on Brookville Healthcare to bolster its deter-
mination that the sample ballot, which was separate from
the notice, satisfied the SDC Investment analysis. Id.
The court emphasized that the Board’s revised notice
language disavows involvement in “ANY MARKINGS
THAT YOU MAY SEE ON ANY SAMPLE BALLOT.” Id. (em-
phasis in original).
The Board majority’s language in Dakota Premium
Foods, 335 NLRB 228 (2001) (Chairman Hurtgen, dis-
senting), could be interpreted to suggest that this dis-
claimer on the Board’s revised notice is also dispositive
in finding unobjectionable a separate distribution of
sample ballots, similar to those in this case and in VIP
Health Care (“[W]e agree with the hearing officer that
the language on the Board’s revised notices would have
effectively disclaimed any participation by the Board in
the preparation of the sample ballot, and would have suf-
ficiently reassured employees of the Board’s neutrality in
the election.” Id. at fn. 2). However, in the same foot-
note, the Board affirmed the hearing officer’s application
of the SDC Investment analysis. There would have been
no need to apply this analysis if the disclaimer contained
SOFITEL SAN FRANCISCO BAY 771
in the Board’s revised notice per se served to validate all
sample ballots. For this reason, we find that the D.C.
Circuit’s analysis in VIP Health Care reflects the correct
interpretation of Board law with respect to the weight
given to the disclaimer contained in the Board’s revised
notice, in a case where, as here, the defaced sample ballot
is separate from the sample ballot contained in the no-
tice.4
III. CONCLUSION
For the foregoing reasons, we sustain the Employer’s
Objection 2 and find that the Union, through the distribu-
tion of an altered sample election ballot, misled voters
into believing that the Board favored the Union in the
election. Accordingly, we set aside the election and di-
rect a second election.
[Direction of Second Election omitted from publica-
tion.]
MEMBER WALSH, dissenting.
My colleagues find that the employees preparing to
vote in this election could reasonably believe that the
National Labor Relations Board sided with the Union in
the election, and, even more, that the NLRB was specifi-
cally, expressly, and individually beseeching them to
vote for the Union. My colleagues arrive at this finding
because someone, we don’t know who, using the Union’s
return address, mailed to at least nine employees photo-
copies of the Board’s sample ballot, on which someone
had handwritten (1) each recipient’s name in underlined
salutation on the recipient’s copy (e.g., “OFELIA,”
“GUSTAVO,” “MARIA,” “PATRICIA”), (2) an oversized “X”
through the “yes” block, and (3) the exhortation “POR
FAVOR—SI SE PUEDE” at the bottom.5 (A copy of one of
these mailings is attached here as appendix B). The Un-
ion denies preparing or mailing the documents, and there
is no evidence that it did.
I agree with the hearing officer’s thorough analysis of
the facts and her application of precedent, as set forth in
appendix A to this decision, and I would adopt her cor-
rect recommendation to overrule the Employer’s objec-
tion stemming from what is obviously campaign propa-

4 Our dissenting colleague apparently agrees with us in this regard,
to the extent that he finds the SDC Investment analysis is the appropri-
ate analysis in this context, and the Brookville Healthcare rationale
provides additional support, which is consistent with the D.C. Circuit’s
reasoning in VIP Health Care, supra.
In an appropriate case, we would consider the type of bright-line rule
advocated by former Chairman Hurtgen, which would require a clear
disclaimer on the face of any altered sample ballot. Dakota Premium
Foods, supra, 335 NLRB at 228–229 (Chairman Hurtgen, dissenting).
5 The phrase translates to “PLEASE—YES IT CAN BE DONE” or
“PLEASE—IT CAN BE YES IF YOU CAN.” The notices of election
were also printed in Spanish because that was the primary language of a
majority of the unit employees.
ganda.6 My colleagues, however, while applying the
framework for analysis in SDC Investment, 274 NLRB
556 (1985), nevertheless find that the employees could
reasonably believe from the propaganda that the Board
favored the Union. Unlike my colleagues, I find under
SDC Investment that it would not be reasonable for the
employees to believe upon receipt of the mailing, with its
handwritten personal first-name salutation and strident
closing appeal across the bottom of the page, and the
oversized handwritten “X,” that the theretofore totally
silent National Labor Relations Board was, out of the
blue and with only a few days left before the election,
suddenly and enthusiastically jumping into the contest
and imploring the employees individually and personally
to please vote for the Union. In arriving at their result,
my colleagues are reaching far beyond not just my grasp,
but Board precedent.
In Taylor Cadillac, 310 NLRB 639 (1993), aptly cited
by the hearing officer, the Board found that the large,
bold markings on the sample ballot were sufficiently
distinct from the Board’s standard preprinted sample
ballots so as to preclude a reasonable impression that the
markings emanated from the Board.7 Along with the
hearing officer, I come to the same result here, on the
same grounds.8
I also agree with the hearing officer’s reliance on the
principles of Brookville Health Care Center, 312 NLRB
594 (1993), in addition to the framework for analysis in
SDC Investment, as additional grounds for overruling this
objection. In Brookville, the Board said that it would no
longer require the SDC Investment analysis to be applied
in cases involving defacement of the sample ballot in the
notice of election, because the Board had recently revised
its notices of election to include language specifically
disavowing Board participation or involvement in any
defacement, as well as specifically asserting its neutrality
in the election process.9 The Board found that this dis-

6 I also agree with the hearing officer’s recommendations to overrule
the Employer’s other objections, on which my colleagues are not pass-
ing, and to issue a certification of representative.
7 Accord: Rosewood Mfg. Co., 278 NLRB 722 (1986), cited in Tay-
lor Cadillac.
8 Just as the hearing officer, I also rely on the fact that the Union’s
return address, not the Board’s return address, appeared on the enve-
lope in which the mailings were sent in finding that the employees
would not reasonably believe that the mailings came from the Board.
9 The standard printed notice language in question states, in large,
bold lettering:
Warning: This Is The Only Official Notice Of This Election And
Must Not Be Defaced By Anyone. Any Markings That You May See
On Any Sample Ballot Or Anywhere On This Notice Have Been
Made By Someone Other Than The National Labor Relations Board,
And Have Not Been Put There By The National Labor Relations
Board. The National Labor Relations Board Is An Agency Of The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD772
claimer language was sufficient in itself to preclude a
reasonable impression that the Board favors or endorses
any choice in the election.
As the hearing officer noted, application of Brookville
has been extended to cases where, like this one, the de-
faced or altered sample ballot is posted or distributed
separately from the notice of election, and thus separately
from the Board’s printed disclaimer. In Comcast Cable-
vision of New Haven, 325 NLRB 833 (1998), the Board
adopted the hearing officer’s application of both the SDC
Investment and Brookville frameworks for analysis in
finding that the union’s conduct in distributing mock
ballots did not warrant setting aside the election.10 In
adopting the hearing officer’s analysis and findings in
Comcast, the Board not only found that the mock ballots
were clearly union propaganda which would not rea-
sonably mislead employees into believing that the Board
favored the Union (i.e., an SDC Investment analysis), but
it also found “in addition,” that the posted official notice
of election containing the printed disclaimer language
under discussion here provided further support for con-
cluding that the employees would not reasonably believe
that the mock ballot emanated from the Board, citing
Brookville, 325 NLRB at 833 fn. 2.
More recently in Dakota Premium Foods, 335 NLRB
228 (2001), which, like Comcast and the instant case,
involved copies of an altered sample official ballot that
were distributed to employees separately from the notice
of election, and thus separately from the Board’s printed
disclaimer, the Board not only found that the hearing
officer appropriately applied the SDC Investment analy-
sis in determining that the union’s distribution of marked
sample ballots was not objectionable because employees
receiving these documents could easily conclude that
they came from the union, but it also found “in addition”
that the language on the Board’s revised notices of elec-
tion would have effectively disclaimed any participation
by the Board in the preparation of the sample ballot, and
would have sufficiently reassured employees of the

United States Government, And Does Not Endorse Any Choice In
The Election.
The Board’s official notice of election containing this language was
also posted in Spanish.
10 In finding that “it does not appear that marking a ballot in a parti-
san way constitutes objectionable conduct given the warnings now
attached to Board Notices of Election,” the hearing officer in Comcast
expressly relied on, inter alia, both Baptist Home for Senior Citizens,
290 NLRB 1059 (1988), in which the Board expressly applied the SDC
Investment analysis, and Brookville, although citing it under the name
Irvington Nursing Care Services, 312 NLRB 594 (1993).
Board’s neutrality in the election. 335 NLRB at 228 fn.
2.11
The cases relied upon by my colleagues in finding that
the employees’ receipt of the campaign propaganda in
question warrants setting aside the election are readily
distinguishable. Unlike here, the document found to be
objectionable in SDC Investment contained an unaltered
complete copy of the Board’s official sample ballot in
English on one side and a complete handwritten facsim-
ile of the sample ballot in Spanish on the reverse, struc-
tured in the same format as the Board’s sample ballot,
with the official seal of the National Labor Relations
Board forged at the top of the Spanish language side and
the entreaty “Remember to vote yes on December 16th”
added at the bottom, in the same style as the rest of the
Spanish language side. The entreaty thus appeared to be
an integral part of the text, rather than an addition to it.
Based on all of this, the Board concluded:
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 that the Spanish version of the
sample ballot was handwritten would not necessarily
exclude the possibility that it was prepared informally
by the Board for this election. 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 be-
lieving that the Board wanted them to vote “yes” in the
election. [274 NLRB at 558; footnotes omitted.]
The facts in the instant case, as set forth in detail, supra, are
clearly distinguishable from those in SDC Investment.
The two-sided document found to be objectionable in
Archer Services, 298 NLRB 312 (1990), also relied upon
by my colleagues, displayed on one side the boxed,
printed heading “Important Facts to Know About Vot-
ing,” and listed instructions to employees regarding vot-
ing procedures and the time and place of the election. At
the bottom of the page the words “See Sample Ballot”
were followed by a series of arrows indicating the re-
verse side of the document. At the top of the reverse

11 Thus, I agree with the hearing officer’s finding in fn. 6 of her at-
tached report that even in cases in which the Board’s notice disclaimer
language is not included on the defaced or altered sample ballots, the
Brookville rationale provides additional support for rejecting objections
based on such ballots. I further agree with the hearing officer’s citation
to, inter alia, the court’s opinion in VIP Health Care Services v. NLRB,
82 F.3d 1122 (D.C. Cir. 1996), as support for her finding.
SOFITEL SAN FRANCISCO BAY 773
side, the printed heading “To Vote Against The Union”
was centered above a reproduced sample ballot with a
bold, handwritten “X” in the “no” box. The ballot con-
tained information and instructions in English with Span-
ish translations.
In finding that the document in Archer had a tendency
to mislead employees into believing that the material
came from the Board, or that the Board favored the em-
ployer, the Board found first that the document was not
clearly partisan, and that nothing suggested that the
document was campaign propaganda from the employer.
Moreover, the Board found that the message above the
altered ballot, “To Vote Against the Union,” sounded
even more “neutral” than the “Remember to vote yes on
December 16” message in SDC Investment, and was
therefore more likely to be interpreted as coming from
the Board. And, as in SDC Investment, there were no
otherwise clearly partisan additions to the document. For
these reasons, the Board found that the material did not
present itself as propaganda and the employees were
therefore not capable of evaluating it as such.
The document at issue in 3-Day Blinds, Inc., 299
NLRB 110 (1990), also relied on by my colleagues, was
a copy of the Board’s official sample ballot, with a
handwritten “X” in the “no” box, and the message “THIS
IS HOW TO MARK YOUR BALLOT TO GIVE THE NEW
OWNERS A CHANCE” printed at the bottom. In finding the
document objectionable, the Board found, inter alia, that
the message printed at the bottom of the handbill was not
readily discernable as a non-Board statement. The Board
found the message to be no less neutral than the “Re-
member to vote yes on December 16” message in SDC
Investment. The Board also noted that the message was
not handwritten, but printed in English and Spanish in a
format not dissimilar to that on the ballot or on Board
notices of election. Additionally, the Board found that
there were no clearly partisan additions such as cartoons,
slogans, headings, or salutations that would make it un-
reasonable for employees to believe that the document
came from the Board, citing Archer Services, supra. For
these reasons, the Board found that the material did not
present itself as propaganda, and that the employees
would not be capable of evaluating it as such.
Unlike in Archer and 3-Day Blinds, the additions to
the sample ballot in question here were handwritten, per-
sonal, by-name salutations, and exhortations that
“Please—yes, it can be done,” or “Please—it can be yes
if you can.” Both the clearly partisan content of the mes-
sage and the informal, handwritten style in which it was
delivered render it self-evidently prounion propaganda,
and not even arguably an instructional message delivered
by a neutral Government agency, such as found in
Archer and 3-Day Blinds, supra.
I would adopt the hearing officer’s report and issue a
certification of representative.
APPENDIX A
Objection 2
At the hearing, four employees testified that during the week
before the election, they received in the mail a one-page docu-
ment containing a sample Board ballot.4 Copies of the 1-page
document received by the employees were entered into evi-
dence as Employer Exhibits 1a—d. One of the employees kept
the envelope in which the document arrived and that envelope
bears the Union’s return address. The document appears to be
a photocopy of the middle page of a Board election notice with
a sample ballot located at the bottom of the document. Located
at the top of the document is the unit description; at about the
middle of the document, the date, time, and place of the elec-
tion are listed; and, at the bottom half of the document is the
sample ballot with a large “X” handwritten through the “yes”
box. The document is written in Spanish, the primary language
of a majority of the bargaining unit. The word “MUESTRA”
(“SAMPLE”) is typed in large letters across the sample ballot.
At the bottom of the document, the phrase “Por Favor—[Si] Se
Puede” is handwritten in capital letters. Translated, the phrase
means, “Please—Yes It Can Be Done” or “Please—Yes If You
Can.” In addition, each recipient’s first name was handwritten
in pen in the area to the left of the time and place of the election
on the document that they received. The Employer contends
that the Union misled voters to believe that the Government
favored the Union in the election. The Union denies preparing
or mailing the document to employees.
In SDC Investment, 274 NLRB 556 (1985), the Board an-
nounced the standard for evaluating altered Board documents.
The Board held:
The initial inquiry is whether the source of the defacement is
clearly identified on the face of the material. If so, then the
Board will find that the document is not misleading, because
employees would know it emanated from a party and would
not be led to view it as a Board endorsement of that party. If
the identity is not evident, then the Board will examine the na-
ture and contents of the material to determine whether the
document has a tendency to mislead employees into believing
that the Board favors a particular party.
Subsequently, in Brookville Healthcare Center, 312 NLRB
594 (1993), the Board announced that it would no longer apply
SDC Investments in cases involving a defaced notice because
the Board had added new language to its standard election no-
tice disavowing Board participation or involvement in any de-
facement and specifically asserting its neutrality in the election
process.5 The Board found that the new notice language was

4 I received an offer of proof from the Employer that it was prepared
to call as many as five additiona1 employees to testify that they re-
ceived the same document in the mail during the week prior to the
election.
5 This language states:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD774
sufficient to preclude the impression that the Board favored or
endorsed any party.
I find that SDC Investments is the correct standard to apply
because the document mailed to the employees in this case did
not include the revised notice language discussed in Brookville
Healthcare. See Dakota Premium Foods, 335 NLRB 228
(2001); Systrand Mfg. Corp., 328 NLRB 803 (1999).6 Thus,

WARNING: THIS IS THE ONLY OFFICIAL NOTICE OF THIS
ELECTION AND MUST NOT BE DEFACED BY ANYONE. ANY
MARKINGS THAT YOU MAY SEE ON ANY SAMPLE BALLOT
OR ANYWHERE ON THIS NOTICE HAVE BEEN MADE BY
SOMEONE OTHER THAN THE NATIONAL LABOR RELATIONS
BOARD AND HAVE NOT BEEN PUT THERE BY THE
NATIONAL LABOR RELATIONS BOARD. THE NATIONAL
LABOR RELATIONS BOARD IS AN AGENCY OF THE UNITED
STATES GOVERNMENT AND DOES NOT ENDORSE ANY
CHOICE IN THE ELECTION.
6 Even in cases in which the revised notice language is not included
on the defaced document, the Board has relied on the rationale of
Brookville Healthcare as additional support for rejecting objections
based on defaced or mock ballots. See Kwik Care, 82 F.3d 1122
(1996), in which the D.C. Circuit found that it “was not unreasonable
for the Board to rely on Brookville to support the assumption that the
employees voting in the election would have read the election notice—
including the statement that “ANY MARKINGS THAT YOU MAY
SEE ON ANY SAMPLE BALLOT . . . HAVE BEEN MADE BY
SOMEONE OTHER THAN THE [BOARD]” (emphasis added)—and
would therefore have known that the altered ballot constituted the Un-
ion’s partisan propaganda.” 82 F.3d at 1130. See also Comcast Cable-
vision of New Haven, 325 NLRB 833 fn. 2 (1998); Wells Aluminum
Corp., 319 NLRB 798 (1995); Hotel & Restaurant Employees Local
226 (Santa Fe Hotel), 318 NLRB 829, 839 (1995). I take administra-
tive notice of the fact that the official Board notice of election posted at
the first inquiry is whether the source of the document mailed
to employees in this case is ascertainable from the face of the
document. Here, the party responsible for defacing the sample
ballot on the reproduced notice is not identified on the face of
the document. Accordingly, the inquiry is whether the altered
document was likely to give voters the misleading impression
that the Board favored one of the parties to the election. I find
that the document mailed to employees in this case did not
create the impression that the Board favored the Union in the
election. In making this finding, I rely on the fact that the
handwritten “X” in the “yes” box of the ballot and the hand-
written exhortation at the bottom of the document to “vote yes,”
written in Spanish, is clearly a prounion appeal that is “suffi-
ciently distinct from the Board’s preprinted standard ballots so
as to preclude a reasonable impression that the markings ema-
nated from the Board.” Taylor Cadillac, 310 NLRB 639
(1993). In addition, the first name of the employee recipient
was handwritten on each document—another contraindication
that it was a document issued by the Board. Finally, I note that
the only envelope in evidence, in which one of these documents
was received, bore the Union’s return address.7 In these cir-
cumstances, I find that the document received by employees in
this case would not tend to mislead voters into believing that
the board was encouraging them to vote in favor of the Union.
Accordingly, I recommend that the Employer’s Objection
No. 2 be overruled.

the Employer’s facility in this case contained the revised notice lan-
guage and that such notice was posted in Spanish.
7 These facts are distinguishable from those in Archer Services, 298
NLRB 312 (1990) and 3-Day Blinds, Inc., 299 NLRB 110 (1990),
which are pre-Brookville Healthcare cases.