Worths Stores Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1191 (N.L.R.B. 1986)

WORTHS STORES CORP.
Worths Stores Corp. and Midwest Joint Board of
Leather Goods, Plastics & Novelty Workers
Union, AFL-CIO. Case 14-RC-10085.
30 September 1986
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
The National Labor Relations Board , by a three-
member panel, has considered objections to an
election held 15 May 1986 , and the Regional Di-
rector 's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement . The tally of ballots shows
21 for and 13 against the Petitioner , with 2 chal-
lenged ballots , an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and briefs , and adopts the Regional
Director's findings and recommendations only to
the extent consistent herewith.'
The Regional Director recommended that the
Employer's Objection 1 be sustained and that the
election be set aside based on his finding that an al-
tered facsimile ballot circulated by the Petitioner
tended to mislead employees into believing that the
Board favored the Petitioner . We disagree.
The document at issue2 was prepared by Union
Organizer Rosemary Behrman and was mailed to
all eligible voters on 29 April 1986 . The document
was enclosed in envelopes which included the Peti-
tioner's name and return address . At the top of the
document, the word "Congratulations" twice ap-
pears in bold print and capital letters, forming a
semicircle around salutations to each employee and
general information regarding secret -ballot elec-
tions. Directly below is specific information con-
cerning the date , time , and place of the election; a
list of benefits for which employees can bargain;
and instructions for employees with questions to
call "Rosemary" at the home and work telephone
numbers provided . The bottom part of the docu-
ment consists of a facsimile of a portion of the
Board's official ballot . An "X" appears in the
"Yes" box, and the Petitioner's name was placed
above the box.
In support of its objection , the Employer submit-
ted to the Regional Director the affidavit of an em-
ployee witness . The witness stated that she did not
retain the envelope in which the document was de-
livered and could not recall if the envelope had a
' In the absence of exceptions thereto, we adopt , pro forma , the Re-
gional Director's recommendation that Objection 2 be overruled
2 A copy of the document is attached as Exhibit "A."
1191
return address or identified the Petitioner as the
party responsible for distributing the material. The
witness further stated that she did not know that
"Rosemary" referred to the union organizer. She
also stated that because of her unfamiliarity with
Board-conducted elections , she assumed that the
ballot portion of the document was to be retained
for use in the election and was therefore upset that
one of the ballot choices had been marked with an
f)"X.
The Petitioner, contending that the document
was not misleading , presented the affidavits of
Rosemary Behrman , the union organizer, and an
employee witness . Behrman stated in her affidavit
that the ballot portion of the document was copied
from the sample ballot portion of a notice of elec-
tion used in another case . Behrman also stated that
the documents were mailed in union envelopes in
order to identify the Petitioner as the party respon-
sible for their distribution . In addition, Behrman
stated that she identified herself on the face of the
document by referring to her first name and by in-
cluding both her office and home telephone num-
bers . She also noted that in a previous union leaflet
mailed to eligible voters in early April, she identi-
fied herself as a union representative and included
the same telephone numbers.
The Petitioner's employee witness stated that she
knew the document was sent by the Petitioner, not
the Board , because of the Petitioner 's name and
return address on the envelope and because she
recognized the reference to "Rosemary" from the
earlier leaflet.
In his report , the Regional Director initially
found , pursuant to the Board 's analysis in SDC In-
vestment, 274 NLRB 557 (1985),3 that the reference
to "Rosemary" on the face of the document was
insufficient to identify the source of the altered
ballot . Moreover, the Regional Director noted that
it would not be unreasonable for employees to
assume that the invitation to call "Rosemary" was
being extended by the Board.
Next, examining the nature and contents of the
material , the Regional Director found that the use
of a union envelope is not conclusive as to the
identity of the party responsible for preparing a
document contained in it because the Board rou-
8 SDC, above , set forth a two-part analysis to determine whether an
altered ballot is likely to give voters the misleading impression that the
Board favored one of the parties to the election. Relying on the policy
that employees are capable of recognizing campaign propaganda for what
it is and evaluating its claims , the Board held that an altered ballot which
on its face clearly identifies the party responsible for its preparation is not
objectionable . If, however , the source is not clearly identified, the Board
stated that it is necessary to examine the nature and contents of the mate-
rial on a case-by-case basis to determine whether the document is mis-
leading.
281 NLRB No. 160
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinely prepares official pamphlets for distribution
by groups such as labor organizations, employers,
and employees. The Regional Director further
found that the partisan material and the ballot
markings were not sufficiently distinct from the
ballot portion of the document so as to preclude
the suggestion that the Board endorsed the Peti-
tioner. Rather, the Regional Director found that
the additions appeared to be integral parts of a
single printed document.
Excepting to the Regional Director's conclusion
that the election should be set aside, the Petitioner
contended, in substance, that the source of the doc-
ument was identified on its face, and that the docu-
ment was not misleading.
In its response to the Petitioner's exceptions, the
Employer initially contended that the distributing
party was not clearly identified on the face of the
document; the Employer stated that the union en-
velope is extrinsic evidence and therefore cannot
be considered under the first portion of the SDC
rule, and that the reference to "Rosemary," absent
a union title, is insufficient evidence of the docu-
ment's source. In addition, the Employer main-
tained that the altered ballot tended to mislead em-
ployees into believing that the Board favored the
Union because the document "looked official," the
partisan markings were not clearly discernible as
additions, and the section of the document pertain-
ing to collective bargaining covered many of the
same issues addressed in the Board's official
"Notice of Election."4
In SDC and subsequent case law, the Board has
applied the two-part analysis of SDC to determine
whether an altered ballot is misleading . In Profes-
sional Care Centers, 279 NLRB 814 (1986), the
Board adopted the Acting Regional Director's
finding that the source of the altered document was
clearly identified where the name , address, tele-
phone number, and seal of the petitioner appeared
on the face of the document, and where the peti-
tioner was specifically identified as the party re-
sponsible for its distribution on the reverse side.
Therefore, the Board concluded that the document
was not misleading.
On the other hand, where the source of an al-
tered document is not so clear, the Board has ex-
amined the nature and contents of the material in
order to determine whether voters would be misled
into believing that the Board favored one party to
the election. The leaflet at issue in SDC, above, dis-
played on one side a handwritten Spanish language
facsimile of an official Board ballot. At the bottom
of the page in Spanish and in the same handwriting
4 The Employer stated that it interpreted SDC as excluding the use of
extrinsic evidence in examining the nature and contents of a document
appeared the message "Remember to vote yes on
December 16th"; at the top was a copy of the
Board's seal . On the reverse side was an unaltered
photocopy of the Board's official sample ballot in
English. The Board concluded that the leaflet was
misleading because the partisan message appeared
to be an integral part of the leaflet, and because the
seal and official sample ballot made the document
appear official. Further, the Board noted that em-
ployees might have assumed that official printed
sample ballots were available only in English, and
that the Board had prepared the handwritten Span-
ish ballot for the upcoming election.
Different results were reached, however, in
Rosewood Mfg. Co., 278 NLRB 722 (1986), and in
C. J. Krehbiel Co., 279 NLRB 855 (1986). In Rose-
wood, the Board concluded that the handwritten
message "Vote No" scrawled across a notice of
election and an arrow drawn to the "no" box were
clearly discernible as partisan additions and were
therefore sufficiently distinct from the printed
notice and sample ballot so as to preclude the sug-
gestion that the Board endorsed the employer. The
document at issue in C. J. Krehbiel, above, consist-
ed of reproductions of portions of an administrative
law judge's decision, with partisan slogans and car-
toons on the same page. The Board determined
that on the basis of content, as well as physical size
and placement, voters could easily conclude that
the cartoons and slogans were not an integral part
of the judge's decision, but were partisan additions.
In addition, the Board noted that a subsequent leaf-
let clearly stated that the first leaflet had come
from the union, thereby identifying the previous
leaflet as union campaign propaganda.
In this case, we agree with the Regional Direc-
tor that the reference to "Rosemary" on the face of
the document does not sufficiently identify the Pe-
titioner as the source of the altered ballot. Rose-
mary's last name was not provided, and her union
title or affiliation is not indicated on the document.
Nor is there a direct statement indicating that the
Petitioner was the preparer of the document. This
situation stands in contrast to the specificity of the
information provided in Professional Care Centers,
above, regarding the party responsible for distribu-
tion of the altered notice of election.
Therefore, it becomes necessary here to examine
the nature and contents of the document. Having
done so on the basis of both content and physical
placement, as in C. J. Krehbiel, above, we do not
find that the document had a tendency to mislead
employees into believing that the Board favored
the Petitioner. On the basis of the content of the
partisan additions, it would be unreasonable for an
employee to assume that the Board would include
WORTHS STORES CORP. 1193
congratulatory headings and individualized saluta-
tions on its official publications. Moreover, even if
the document 's section on bargaining covers some
of the same issues addressed in the Board 's notice
of election, its partisan stance is readily apparent.
Therefore, because the material presents itself as
propaganda, we must conclude that employees are
capable of evaluating it as such . SDC, above.
'An examination of the physical appearance of
the document further supports our conclusion that
the material is not misleading . It is clear that the
sample ballot has been cut from another form and
added to the partisan material . Rosewood, above.
Moreover, the document does not appear "offi-
cial." Thus, the printed material is not centered on
the page, markings from a photocopy machine are
evident, and the official Board form number is
barely legible. Cf. SDC, above. Further , the sample
ballot is only a partial reproduction , i.e., it does not
contain language indicating that it is an official
secret ballot of the U.S. Government and posing
the critical question for which the election is being
held.5
In SDC, the fact that the complete reproduction
of a ballot appeared official was strengthened by
the Board 's finding that employees could reason-
ably assume that official printed ballots were avail-
able only in English and that foreign language bal-
lots had to be specially prepared by hand when
needed . On the other hand, having objectively con-
sidered the partial reproduction before us, we must
conclude , notwithstanding the statement of the
Employer's witness, that employees would not rea-
sonably assume that the Board would provide a
premarked partial ballot surrounded by partisan
material for use in the election.6
Finally, the analysis undertaken in C J. Krehbiel,
above, indicates that it is appropriate to consider
extrinsic evidence in examining the nature and con-
tents of a document to determine if it is misleading.
As indicated above, the Petitioner mailed a leaflet
to all eligible employees in early April, which iden-
tified Rosemary Behrman as a union organizer and
included the same phone numbers as are found on
the document at issue in this case . Thus, the record
indicates that the name "Rosemary" was or should
have been familiar to employees . This familiarity,
together with the fact that a clearly partisan docu-
ment was mailed in union envelopes , 7 further sup-
ports our conclusion that the employees would not
think that the material came from the Board, or
that the Board in any way endorsed the Petitioner.
Accordingly, we overrule Objection 1. Further,
since the tally of ballots shows that the Petitioner
has received a majority of the valid ballots cast, we
shall certify the Petitioner as the collective-bargain-
ing representative.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Midwest Joint Board of
Leather Goods, Plastics & Novelty Workers
Union, AFL-CIO, and that it is the exclusive col-
lective-bargaining representative of the employees
in the following appropriate unit:
All warehouse employees including truckdriv-
ers employed at the Employer 's 2055 Walton
Road, St. Louis County, Missouri facility, EX-
CLUDING office clerical and professional
employees, guards , and supervisors as defined
in the Act.
a See, e.g, Stedman Wholesale Distributors, 203 NLRB 302 (1973). Al-
though predating SDC, the Board 's analysis in Stedman focused on
whether the altered ballot would have been likely to mislead voters.
Therefore, it is not inconsistent with the SDC analysis.
s In this regard , we note the Board's long-established principle that the
subjective reactions of employees are irrelevant to the question of wheth-
er there was , in fact, objectionable conduct . The issue is whether the
conduct, viewed objectively, warrants setting aside the election. Emerson
Electric Co., 247 NLRB 1365, 1370 ( 1980), enfd . 649 F.2d 589 (8th Cir.
1981).
7 We note that the document in C. J. Krehbiel, was mailed to employ-
ees in union envelopes.