Ursery Cos.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 399 (N.L.R.B. 1993)

399
311 NLRB No. 41
URSERY COS.
1 In the absence of exceptions, we adopt the Regional Director’s
recommendation that Objections 3, 4(a), 4(d), and 4(e) be overruled.
2 See Huntsville Mfg. Co., 240 NLRB 1220, 1223 (1979). Unlike
our colleague, we believe that the employees are not so politically
naive that they would be unable to distinguish between a Connecti-
cut State Representative and the NLRB, and to recognize that the
former is a state legislator and the latter a Federal agency with no
connection to each other.
Ursery Companies, Inc. and Service Employees
International Union Local 531, AFL–CIO, Peti-
tioner. Case 34–RC–1098
May 28, 1993
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has considered
objections to an election held July 9, 1992, and the Re-
gional Director’s report recommending overruling
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 8
for and 7 against the Petitioner, with 1 challenged bal-
lot, a sufficient number to affect the results of the elec-
tion.
The Board has reviewed the record in light of the
exceptions and briefs, and adopts the Regional Direc-
tor’s findings and recommendations.1 The determina-
tion of results of the election is dependent on resolu-
tions to be made following a hearing with regard to the
challenged ballot.
Our dissenting colleague would set aside the elec-
tion on the basis of the Union’s including in its cam-
paign literature a letter from a member of the House
of Representatives of the State of Connecticut support-
ing the Union. The letter, on the Representative’s offi-
cial stationery, was reduced and superimposed on the
Union’s stationery. Our colleague refers to a long-es-
tablished test that where campaign material is not rec-
ognizable as campaign propaganda of a particular
party, ‘‘no participant in a Board election may be per-
mitted to suggest either directly or indirectly that this
Government Agency endorses a particular choice in an
election.’’ (Emphasis added.) Our colleague concludes
that the state representative’s endorsement of the
Union eliminated the NLRB’s appearance of impartial-
ity and thereby interfered with the employees’ free
choice in the election. We can find no legal or logical
basis for that conclusion.
In Columbia Tanning Corp., 238 NLRB 899 (1978),
relied on by our colleague, the Board set aside an elec-
tion on the basis of a letter written in Greek and sent
to Greek employees by the commissioner of labor of
the State of Massachusetts on his official stationery en-
dorsing the union. The Employer had submitted evi-
dence that the labor commissioner had ‘‘a significant
degree of control over the terms and conditions of em-
ployment in . . . Massachusetts, particularly over alien
workers.’’ The Board found that the employees could
not be expected to discern readily the difference be-
tween the state ‘‘Department of Labor’’ and the Fed-
eral ‘‘National Labor Relations Board,’’ particularly in
light of the fact that both contain the word ‘‘Labor’’
in their titles. The differences between Columbia Tan-
ning and the present case are obvious and significant.
There is no reference to ‘‘Labor’’ in the state rep-
resentative’s letter. Further, the letter was sent by the
Union and appeared on Union stationery as a reproduc-
tion. In our view these facts suffice, without more, to
identify the Union as the source of the document in
question.
In Columbia Tanning and in general, the concern is
whether and to what extent a document imitates a
Board publication and under what circumstances it can
be said that the Board or the United States favors one
party to the election.2 In the absence of other objec-
tionable conduct, the Board will honor the decision
made by the employees in the voting booth, unless it
can be shown that the Board’s impartiality was called
into question. The campaign material involved in this
case clearly does not meet that test. Accordingly we
affirm the Regional Director’s recommendation to
overrule this objection.
ORDER
It is ordered that this case is remanded to the Re-
gional Director for Region 34 for further proceedings
consistent with this Decision and Order Remanding.
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would not adopt the
Regional Director’s recommendation to overrule the
Employer’s Objections 4(b) and (c) to the Union’s use
of a letter of endorsement from a state representative
on official stationery. For the reasons set forth below,
I would sustain these objections and direct a second
election.
Shortly before the election, the Union mailed cam-
paign materials, including a copy of the representa-
tive’s letter superimposed on the Union’s stationery, to
all unit employees. The letter is signed by Juan
Figueroa, a member of the House of Representatives of
the State of Connecticut. The letter is written on offi-
cial stationery, bears the seal of the State of Connecti-
cut, as well as Representative Figueroa’s name, ad-
dress, telephone numbers, and State House of Rep-
resentatives committee affiliations.
The text of the letter reminds the employees of the
date and time of the election. The letter additionally
advises that other employees at the same facility re-
cently voted in favor of the Union and ‘‘since then
they have negotiated a contract with the cleaning con-
tractor and won many new benefits including free indi-
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vidual health insurance coverage for all employees.’’
Attached to the letter is a list of employee benefits of
the unit at issue here, which are compared unfavorably
with the benefits won by the employees who recently
selected the Union as their representative. The letter
concludes, ‘‘I am sure after reviewing [the attachment]
you will see that the Union is powerful and wins for
its members. . . . Remember, in unity there is
strength.’’
As noted, Representative Figueroa’s letter was su-
perimposed on the Union’s stationery. Above the offi-
cial Connecticut state letterhead the letter bears the
name (in abbreviation), address, and telephone number
of the Union, along with the slogan ‘‘Justice for Jani-
tors.’’
The evidence shows that half of the 16 unit employ-
ees here did not read or speak English, and further re-
flects that the remaining employees possessed limited
English skills. The election notices and ballots were
printed in English and Spanish, and the Union trans-
lated much of its campaign literature into Spanish. In
light of these circumstances, I believe the letter created
the clear possibility that employees understood the let-
ter to suggest governmental approval of the Union.
The letter clearly exhorts the employees to support the
Union, and the source of that exhortation is a Con-
necticut state representative. The letter prominently
bears the seal of the State of Connecticut, followed by
‘‘HOUSE OF REPRESENTATIVES, STATE CAP-
ITOL, HARTFORD, CONN.’’ In my view, these em-
ployees in all likelihood would not readily discern the
distinction between Connecticut State government and
the Board as an agency of the Federal Government. I
agree with the Employer that these employees’ pos-
sible unfamiliarity with the structure of Government
creates the likelihood that the employees could have
been misled as to the impartiality of the ‘‘govern-
ment’’ in the election.
The potential for confusion was compounded by the
Union’s failure to clearly identify that it—independent
of the Government—was the source of the letter. The
letter was not accompanied by any cover document or
other materials identifying the Union as the source of
the document. Rather, the employees received what ap-
pears to be an official letter from a Connecticut rep-
resentative endorsing the Union in the election. In
these circumstances, I cannot conclude that the abbre-
viated name of the Union and its address at the top of
the letter sufficiently identified the Union as the inde-
pendent source of the letter; indeed, that reference to
the Union might compound any confusion.
The Board has explained that so long as campaign
material is recognizable as propaganda of a particular
party, the Board will leave the task of evaluating its
contents solely to the employees. See, e.g., SDC In-
vestments, 274 NLRB 556, 557 (1985). The Union
failed to sufficiently identify the material in dispute
here. Scrutiny by the Board of the material is accord-
ingly appropriate. Id. It has long been established that
no participant in a Board election may be permitted to
suggest either directly or indirectly that this Govern-
ment Agency endorses a particular choice in an elec-
tion. Allied Electric Products, 109 NLRB 1270 (1954);
Columbia Tanning Corp., 238 NLRB 899 (1978). See
Huntsville Mfg. Co., 240 NLRB 1220 (1979) (the
Board considered and rejected the employer’s conten-
tion that a union document misled employees by mak-
ing it appear as though the Board and/or the United
States Government favors unionization). A suggestion
of governmental approval of any party to an election
eliminates the Board’s appearance of impartiality and
thereby interferes with the exercise of a free choice in
the election. Columbia Tanning Corp., supra, 238
NLRB at 890. In my view, the Union violated these
fundamental principles with the Figueroa letter mailed
to all unit employees shortly before the election. For
the reasons set forth above, I believe the letter
impermissibly suggests Government sanction of the
Union in the election, and requires that we set the
election aside.
I accordingly dissent.