The Am-O-Krome Co.

National Labor Relations Board - Board Decisions

Dec 22, 1950

92 N.L.R.B. 893 (N.L.R.B. 1950)

In the Matter of THE AM-O-KRONE COMPANY, EMPLOYER and
CONGRESS OF INDUSTRIAL ORGANIZATIONS, PETITIONER
Vases Nos. 9-RC-949 and 9-RM-64.Decided December 22, 1950
DECISION, ORDER, AND DIRECTION OF SECOND
• ELECTION
Pursuant to a Stipulation for Certification upon Consent Election
by the Employer, the Petitioner, and the Intervenor, Local 214, In-
ternational Fur and Leather Workers Union, an election was held
under the direction of the Regional Director on October 3, 1950.1
The Petitioner filed timely objections to conduct affecting results of
the election.
The Regional. Director caused an investigation to be made of the
Petitioner's objections, and on October 27, 1950, issued his report.
The Regional Director found that, before the election, the Intervenor
distributed copies of a sample ballot, marked-in the box under the
Intervenor's name and carrying the Regional Director's name and
title in substantially the same position which they appeared on the
notice of election previously issued by him. The Director concluded
that this might have given eligible voters the erroneous impression
that he and the Board were giving support to the Intervenor in the
election. He held that the Petitioner's objections raised substantial
and material issues with respect to conduct affecting the results of the
election, and recommended that the election of October 3, 1950,
be set aside and a new election ordered by the Board.
The Intervenor filed timely exceptions to the Regional Director's
report. In its exceptions the Intervenor admitted that a sample
ballot circulated by it among the employees "inadvertently contained
the name of the Regional Director of the National Labor Relations
Board." It denied, however,, that any genuine misunderstanding
among the eligible voters was caused by its action, or that the vote of
any eligible voter was affected by this sample ballot.
Upon consideration of the objections, the Regional Director's re-
port, the exceptions, and the entire record in this case, the Board finds
that the election should be set aside.
, Out of approximately 115 eligible voters, 111 voted. Of those voting, 85 voted for the
Intervenor , 25 for the Petitioner, and 1 against both participating labor organizations.
92 NLRB No. 159.
893
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We believe that it is unnecessary to determine whether or not any
eligible voter was in fact influenced by the presence of the Regional
Director's name on this sample ballot, for it was misleading on its
face and therefore improper. No participant in a Board election
should be permitted to suggest to the voters that this Government
agency, or any of its officials, endorses a particular choice.2 That was
the plain implication of -including the Director's name and title di-
rectly under a recommendation as to how the voters should vote. The
implication was in no wise cured by inclusion of the word "sample" 3
on the ballot, and cannot be lightly disregarded, as our colleagues
would have us disregard it, on the ground that voters are so sophisti-
cated that the Government can afford to tolerate such misrepresen-
tation. As we are primarily concerned with the complete protection
of the Board's procedures to ensure employees fair and impartial
elections, we shall affirm the Regional Director's findings, set. the
election aside, and order a new election.
ORDER
It is hereby ordered that the election held in this case on October
3, 1950, be, and it hereby is, set aside.
[Text of Direction of Second Election, omitted from publication in
this volume.]
MEMBERS REYNOLDS and MURDOCK, dissenting :
We cannot agree with the majority opinion that the election in
this proceeding should be set aside. Our colleagues have correctly
stated that it is unnecessary to determine whether or not any eligible
voter was in fact influenced by the presence of the Regional Director's
name on the sample ballot. However, consideration of the basic
test applicable to situations of this kind, i. e., whether there was any
real danger of the employees reasonably accepting as true the possible
.implication that the Intervenor was favored by the Board or the
Regional Director '4 leads us to a diametrically opposite conclusion
from that reached by the majority.
Reference to past precedents in light of the fundamental test ap-.
plied lends little, if any, support to the majority position. On the
9 Sears Roebuck and Company, 47 NLRB 291. Cf. Gate City Table Co., Inc ., 87 NLRB
1120. In the latter case, as in the present one, the marked sample ballot had the word
"sample" printed across its face. The important distinction is that it did not also bear
the name and title of the Board 's Regional Director.
8 Contrary to the statement in the dissent that the word "sample" indicates the document
is not an official document of the Board , we vote that the ballot on the official notice of
-election is overprinted with the word "sample" and is an official document of the Board.
' Corn Products Refining Company, 58 NLRB 1441.
THE AM-O-KROME COMPANY 895
contrary, an analysis of such decisions offers persuasive grounds for
not setting aside the election here. The leading pertinent decisions
are the Sears and Gate City cases 5 Both these cases and the instant.
case are identical to the extent that all deal with a facsimile official
ballot marked with an "X" in the box designating. selection of the
union which circulated the ballot. But the present case .is clearly
distinguishable from the Sears case upon which our colleagues ap-
parently rely as authority for their view. For in the Sears case, al
though the ballot involved bore the name and title of the Regional
Director as it does in the instant case, the facsimile official ballot in
the Sears case did not have the word "sample" printed across its
face. We can perceive that there might possibly be some danger of
employees reasonably implying sponsorship by the Board or the
Regional Director of a union distributing a facsimile official ballot
where such ballot failed to indicate that it was merely a sample.
However, the Gate City case and the instant case present a very
different situation. In both of these cases the particular facsimile
official ballot involved had the word "sample" clearly and conspicu-
ously printed across its face. The Board properly refused to set
aside the election in the Gate City case. In our opinion, the implicit
reason for the Board's refusal was the valid determination that the
average worker is sufficiently familiar with election campaign litera-
ture and propaganda to comprehend that when a ballot is distinctly
marked "sample" it is not an official document of the Board and such
an employee would not reasonably infer Board endorsement of the
union. distributing this type of ballot. We believe that the same
rationale is applicable to the instant case. While it is true, as the
majority points out, that the ballot in the Gate City case did not bear
the name and title of the Board's Regional Director as it does in the
present case, this appears to us to be a tenuous rather than an impor-
tant distinction. Acceptance of the validity of such a distinction
is tantamount to a holding that although the average present-day
worker is sufficiently informed to understand that a facsimile official
ballot marked "sample" is in fact a sample, he is so naive that he
might attach a different meaning.to such a ballot merely because it,
contains the Regional Director's name and title. We cannot subscribe
to this view.
We believe that the Board should recognize that working people,
who participate in .Board elections also vote in State and national
elections. Judicial notice should be taken of the fact that the cir-
culation of a sample ballot similar to that involved in the Gate City
or in the instant case with an "X" beside the name of a particular
6 See footnote 2, supra.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
candidate is a very well-known technique in American politics. Very
few voters, if any, are misled by this technique. This is equally
true even though the sample ballot contains the name and title of
the election commissioners, a situation very comparable to the instant
one where the ballot included the name and title of the Regional Di-
rector. In view of the foregoing, we would hold the election in this
case to be valid.