Systrand Mfg., Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1999

328 N.L.R.B. 803 (N.L.R.B. 1999)

SYSTRAND MFG. CORP. 803
Systrand Manufacturing Corp. and Interior Systems,
Local 1045, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO, Petitioner.
Case 7–RC–21446
June 24, 1999
DECISION AND DIRECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered challenges and objections
to an election held on December 17, 1998, and the hear-
ing officer’s report recommending disposition of them.1
The revised tally of ballots shows 81 for and 78 against
the Petitioner, with 5 challenged ballots, a sufficient
number to affect the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings2 and recommendations.3 We shall remand this
matter to the Regional Director to take such action con-
sistent with this Decision and Direction.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 7 shall, within 14 days from the date of this Deci-
sion and Direction, open and count the ballots of Ruth
Elliot, Cheryl Luna, Roseanne Richards, Richard
Block, and Mohsen Saleh. The Regional Director shall
then serve on the parties a revised tally of ballots and
issue the appropriate certification.

MEMBER HURTGEN, concurring in part, dissenting in
part.
I agree with the hearing officer that challenged voters
Ruth Elliot, Cheryl Luna, Roseanne Richards, Richard
Block, and Mohsen Saleh share a sufficient community
of interest with other unit employees to warrant their
inclusion in the unit. Accordingly, I would overrule the
challenges to their ballots and direct that a revised tally
of ballots issue.

1 The pertinent portion of the hearing officer’s report is attached as
an Appendix.
2 The Petitioner has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
3 In dissent, our colleague seeks to establish a new “bright line” test
in which he would require that an altered Board ballot circulated as
election campaign propaganda must contain on its face a disclaimer of
Board involvement (or, alternatively, that the defacer says that it is
responsible for the sample ballot). We decline to modify well-
developed Board precedent with respect to the use of altered or defaced
sample ballots as election propaganda. We find that the hearing officer
appropriately applied the Board’s two-part analysis set out in SDC
Investments, 274 NLRB 557 (1985), in determining that the Union’s
distribution of marked sample ballots was not objectionable because
employees receiving these documents could readily conclude that they
came from the Petitioner. Under these circumstances, the ballots were
not likely to mislead employees into assuming that the Board endorsed
the Petitioner. We further find no objective record basis for the dis-
sent’s general observations about the Employer’s Spanish-speaking
employees’ ability to understand the Board’s electoral process.
Contrary to my colleagues, however, if that revised
tally discloses that a majority of eligible votes have been
cast for the Union, I would sustain the Employer’s objec-
tion, set aside the election, and direct a second election.
The Employer’s objection states that the Union inter-
fered with the election by distributing to employees a
facsimile of the official sample ballot, defaced with the
“YES” box checked. The Employer argues that the con-
duct gave employees the misleading impression that the
Board supported the Union or was encouraging voters to
vote for the Union.
The evidence establishes that, 10 days before the elec-
tion and again on the day before voting, union represen-
tatives distributed to unit employees a total of about 240
English and Spanish facsimile sample ballots, with the
“YES” box checked. These duplicated ballots did not
disclose that the Union was responsible for the “Yes”
markings. Neither did these ballots indicate that the
Board was not responsible for the markings or, indeed,
that the Board did not support the Union. To be sure,
some official Board election notices posted in the Em-
ployer’s facility did affirmatively disclaim Board in-
volvement in any altering of these notices or sample bal-
lots. However, this was true only with respect to Eng-
lish-language notices. The official Spanish-trans-lation
notices did not contain this disclaimer.1
Under these facts, I am concerned about the danger
that employees would be mislead into believing that the
Board supported the Union. I recognize that the Union
identified itself when distributing the sample ballots, and
that the Union simultaneously handed out partisan union
literature. However, this is not the same as having a
clear disclaimer, on the face of the defaced ballot, that
the union (or employer as the case may be) is the party
who is responsible for the defacement. Thus, in order to
have a “bright line” test, and in order to protect the
Board’s vital interest in preserving its actual and per-
ceived neutrality, I would require such a disclaimer on
the face of any defaced sample ballots.2
The Board currently places the disclaimer on the offi-
cial posted notice.3 And, that notice says that deface-
ments on any sample ballot are not those of the Board.
However, in my view, it is far preferable to have the dis-
claimer on the face of the defaced sample ballot.4 Such a
1 The Spanish-translation posted notice merely stated that “This is
the only official notice and must not be defaced by anyone.”
2 Alternatively, the defacer can say that it is responsible for the sam-
ple ballot.
3 Brookville Healthcare Center, 312 NLRB 594 (1993).
4 To the extent that Comcast Cablevision of New Haven, 325 NLRB
833 fn. 2 (1998), is inconsistent with the above, I respectfully disagree
with it.
328 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
requirement would not be onerous. A simple copying of
the posted notice (with its disclaimer) would suffice.
In any event, in the instant case, even the posted Span-
ish notice failed to contain the disclaimer. Thus, even if
a posted disclaimer would “save” a sample ballot not
containing a disclaimer, that would not “save” the sam-
ple ballot distributed to the Employer’s Spanish-speaking
employees, because the Spanish notice posted contained
no disclaimer. This group, not being familiar with our
language and political system, can easily be confused
about the Board’s role in the election.5
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATIONS ON OBJECTIONS
At the hearing the parties entered into factual stipulations re-
garding the objection. The parties stipulated that Petitioner
Representatives Edward Musser, Jose Herrara, and Pat
Raquepaw, agents of the Petitioner, appeared at the Employer’s
facility in Brownstown, Michigan on December 8, 1998, from
approximately 5:15 to 6:15 a.m. (during shift change). At the
plant gates they distributed two documents to employees. The
first was a document titled “Contract” that had a Spanish ver-
sion on one side and an English version on the other. The
document extolled the virtues of a collective-bargaining agree-
ment for employees. It does not make reference to the Peti-
tioner by name. The parties also stipulated that at the same time
they distributed “Contract,” Musser, Herrara, and Raquepaw
also distributed a copy of a sample NLRB ballot with an Eng-
lish version on one side and a Spanish version on the other
(attachments A and B) [omitted from publication]. The sample
ballot on both versions had an “X” marked in the “yes” box.
The parties also stipulated that about 120 copies of the above
documents were distributed.
The parties also stipulated that on December 16, 1998,
Musser, Herrara, and Raquepaw appeared at the Employer’s
facility from approximately 5:15 to 6:30 p.m., again during
shift change, and distributed a document titled “A Pray [sic] for
Justice.” They also distributed a sample ballot, which was the
same as the ballot distributed on December 8, 1998. “A Pray
[sic] for Justice” made reference to workers in underdeveloped
countries who work for very low wages and also contained a
prayer for an amelioration of those conditions. In addition, it
stated, “Do not forget it, the Union is the solution. We have to
vote union yes.” At the bottom of the document it stated,
“Michigan Regional Council of Carpenters Interior Systems
Local 1045.” The sample ballot was the same as that distributed
on December 8, with an “X” marked in the “yes” box. Both
documents were double sided with an English version on one
side and a Spanish version on the other. The parties stipulated
that about 120 of the documents were distributed to employees
at that time.
The parties stipulated that in the incidents referred to above
on both December 8 and 16, 1998, Musser, Herrara, and
Raquepaw identified themselves as union agents to employees

5 Because the unit is predominately Hispanic, and about 80 percent
of unit employees have difficulty reading or speaking English, it is
reasonable to infer that these employees could be misled into believing
that facsimiles of official Board sample ballots—which facsimiles
contain no indication that they were prepared or supplied by a party—
are the product of, or reflect the positions of, the Board.
as they passed out the literature and that they were wearing
jackets, hats, and buttons with union insignia. The parties also
stipulated that on both occasions Jose Herrara spoke Spanish to
employees and while doing so identified himself as a union
agent and advocated a vote for the Petitioner as he handed the
documents to the Spanish-speaking employees.
Employer witness Alexander Goralewski, the vice president
of finance, testified that about 80 to 85 percent of the Em-
ployer’s employees are of Hispanic origin. He also testified that
five of the employees in the voting unit are illiterate. Employer
witness Jose Morales, a supervisory training manager, testified
that while about 90 percent of the Hispanic employees are bi-
lingual, about 80 percent of this group have difficulty speaking
or reading English. Morales also testified that he saw the sam-
ple ballot distributed on December 8 and 16 on two occasions
in the plant. He testified that he saw about 40 employees read-
ing the sample ballot distributed by the Petitioner the day be-
fore the election.
The parties stipulated that there were four sets of English and
Spanish Notices of Election posted at the Employer’s facility
and that the notices were posted continuously from December
11 through the election on December 17, 1998. The parties also
agreed that the wording on both Notices of Election was the
same except for the bottom lines which read the entire length of
the notice. The English version of the Notice of Election has
three lines at the bottom which state, “Warning, this is the only
official notice of this election and must not be defaced by any-
one. 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.” The Spanish
version of the notice at the same location reads only “Warning,
this is the only official notice of this election and must not be
defaced by anyone.”
The Employer argues that the sample ballot distributed by
the Petitioner is likely to have given voters the misleading im-
pression that the NLRB favored the Petitioner. It cites SDC
Investments, 274 NLRB 557 (1985), in support of its position.
The Employer also argues that the Region’s Spanish Notice of
Election was faulty in that it did not have the disclaimer that
any markings on the sample ballot were made by someone
other than the NLRB, as the English version did. The Employer
also contends that there is evidence through the testimony of
Jose Morales, that employees examined the Petitioner’s sample
ballot within 24 hours of the election.
The Petitioner argues that the sample ballots it distributed
were handed out with literature that was clearly campaign
propaganda and distributed by individuals who identified them-
selves as Petitioner agents by their garb and exhortations to
vote for the Union. The Petitioner also argues that as both the
English and Spanish Notices of Election contain language in
the far right panel which states, “The National Labor Relations
Board is an Agency of the United States Government and does
not endorse and choice in the election,” employees would not
have been confused that the NLRB endorsed the marking of the
sample ballot. The Petitioner also cites Midland National Life
Insurance Co., 263 NLRB 127 (1982), and argues that the sam-
ple ballot is merely a “misleading impression” and therefore is
not the basis for a meritorious objection.
SYSTRAN MFG. COPR. 805
In SDC Investments, supra, the Board applied a two-part
analysis to determine whether an altered document is mislead-
ing. If the altered document clearly identifies its source then the
Board will find that the document is not misleading. If the
source of the document is not readily identified, the Board will
examine the nature and contents of the material to determine
whether voters could be misled into believing that the Board
favored one party to the election. In the instant matter the sam-
ple ballots do not identify the source of the document. How-
ever, the sample ballots were distributed with other documents
which could clearly be identified as Petitioner campaign propa-
ganda. While the document titled “Contract” does not specifi-
cally make reference to the Petitioner, it trumpets the benefits
of a collective-bargaining agreement and it could be readily
concluded that the author was the Petitioner. The document
titled “A Pray [sic] for Justice” clearly makes reference to the
Petitioner and states that employees should vote yes. Based on
the above, employees receiving the sample ballots could readily
conclude that they came from the Petitioner. Furthermore, the
sample ballots were distributed by individuals who clearly
identified themselves as agents of the Petitioner. The Board has
used such criteria to determine that the distribution of an altered
ballot did not establish a basis for overturning an election.
Comcast Cablevision of New Haven, Inc., 325 NLRB 833
(1998); Worths Stores Corp., 281 NLRB 1191 (1986).
With respect to the contention that the Spanish Notice of
Election was faulty, it is undisputed that the Spanish notice did
not contain the language now used to inform employees that
any markings on the sample ballot were not placed there by the
Board. For the reasons set forth above, however, I conclude that
the Petitioner did not engage in objectionable conduct. In addi-
tion, Worths Stores Corp., supra; C. J. Krehbiel Co., 279
NLRB 855 (1986); and Rosewood Mfg. Co., 278 NLRB 722
(1986), are decisions which issued prior to the usage of the
disclaimer language now found in Board Notices of Election. In
those cases, which involved facts similar to the instant matter,
the Board concluded that objectionable conduct involving al-
tered documents had not occurred. Therefore, the absence of
the disclaimer language does not automatically establish a
meritorious objection in an altered ballot situation.
I therefore recommend that the objections to the election be
overruled.