Oak Hill Funeral Home

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 345 NLRB No. 35 532 Service Corporation International d/b/a Oak Hill Fu- neral Home and Memorial Park and Laborers’ International Union of North America, AFL– CIO, Local Union 270, Petitioner and Cemetery Workers and Greens Attendants Union, Local 265, Service Employees International Union,1 Intervenor. Case 32–RC–5235 August 27, 2005 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The National Labor Relations Board has considered objections to an election held July 16, 2004, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipu- lated Election Agreement. The revised tally of ballots shows 23 for the Petitioner, 0 for the Intervenor, and 20 against the participating labor organizations. There was one challenged ballot, which was insufficient to affect the results of the election. The Board has reviewed the record in light of the ex- ceptions and briefs,2 has adopted the hearing officer’s 1 We have amended the caption to reflect the disaffiliation of the Service Employees Intervention Union from the AFL–CIO, effective July 25, 2005. 2 In its brief in support of its exceptions, the Employer asserts that the record of this proceeding discloses that counsel for one party re- ferred to counsel for the other party as a “fu__ing slime ball.” The record also reflects that, when questioned by the hearing officer, the counsel to whom the record attributed the remark denied making it. Sec. 102.177 of the Board’s Rules and Regulations addresses, inter alia, “Misconduct by attorneys and party representatives before the Agency.” An obligation under that section is as follows: Any attorney or other representative appearing or practicing before the Agency shall conform to the standards of . . . professional conduct re- quired of practitioners before the courts. . . . [Sec. 102.177(a).] The section then sets forth a disciplinary process which may result in a formal reprimand, suspension, or disbarment from practice before the Board. Conformance to the standards of professional conduct is required of attorneys or other representatives appearing or practicing before the Agency in the same manner as is required of counsel appearing before the courts. Under the American Bar Association Model Rules of Pro- fessional Conduct, adopted by many states, “[a] lawyer shall not . . . engage in conduct intended to disrupt a tribunal.” Rule 3.5 (Impartial- ity and Decorum of the Tribunal). The Model Rules’ annotation ex- plains that “[r]efraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.” Administrative law judges and hearing officers should be mindful of the standards of professional conduct mandated under Sec. 102.177 in conducting proceedings before the Agency. Where counsel engages in conduct that allegedly violates these standards of professional conduct, the administrative law judge or a hearing officer should refer the con- duct for investigation, in accordance with Sec. 102.177(e), to determine if misconduct occurred and if discipline is warranted. Similarly, any findings3 and recommendations,4 and finds that a certifi- cation of representative should be issued. In Objection 2, the Employer alleges that a marked sample ballot flyer sent by the Petitioner to the Em- ployer’s maintenance employees had the tendency to mislead employees into believing that the Board favored the Petitioner in the election. The hearing officer rec- ommended that the Employer’s Objection 2 be overruled based on his conclusion that the employees would have understood that the marked sample ballot emanated from the Petitioner and was merely propaganda. We adopt the hearing officer’s recommendation, but not his entire ra- tionale. As discussed below, we find that employees would not have been misled by the sample ballot flyer at issue based on the physical appearance of the document itself, and the totality of the circumstances surrounding its source and distribution. I. FACTS On March 15, 2004,5 the Petitioner, Laborers’ Interna- tional Union of North America, AFL–CIO, Local 270 (the Union or Local 270), filed a petition for election. other person, including the Regional Director or the opposing counsel, may refer conduct for investigation in accordance with that section. In addition to the procedures set forth in Sec. 102.177(e) for handling allegations of misconduct, the administrative law judge or hearing officer has “the authority . . . to admonish or reprimand, after due no- tice, any person who engages in misconduct at a hearing.” Sec. 102.177(b). 3 The Employer 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. Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Employer was permitted to call to the Board’s attention its recent decisions in Harbor- side Healthcare, Inc., 343 NLRB 906 (2004), and Sofitel San Francisco Bay, 343 NLRB 769 (2004). We deny the Employer’s request to file additional briefs concerning these cases. 4 In Objection 1, the Employer alleges, inter alia, that Superintendent of Construction Pat Kintzley engaged in objectionable prounion super- visory conduct. The hearing officer recommended overruling this portion of Objection 1. We adopt the hearing officer’s recommenda- tion, but we rely solely on the hearing officer’s credibility determina- tions, which establish that the supervisory conduct alleged to be objec- tionable did not occur. We otherwise disavow the hearing officer’s legal analysis in light of our recent decision in Harborside Healthcare, supra (Members Liebman and Walsh dissenting), which issued after the hearing officer’s report and which clarified the circumstances under which “the prounion activity of a supervisor will be held to constitute objectionable conduct, such that a new election is warranted.” Id., slip op. at 1. Member Liebman, who dissented from the majority’s decision in Harborside, concurs here in the decision to overrule the Employer’s supervisory taint objection. In the absence of exceptions, we adopt, pro forma, the hearing offi- cer’s recommendation that the remaining portions of Objection 1 be overruled. 5 All dates are 2004 unless otherwise noted. OAK HILL FUNERAL HOME & MEMORIAL PARK 533 For the next 4 months, the Union sent various flyers con- taining prounion propaganda, in both Spanish and Eng- lish, to the homes of the Employer’s maintenance em- ployees. After the Union received the Excelsior list6 on July 2, it sent two successive flyers, each containing a marked sample ballot, to all eligible voters. The first of these flyers, which is the primary subject of the Employer’s exceptions, was sent on or about July 5. This flyer is two-sided, one in Spanish, the other in English, and consists of an off-center photocopy of the center panel of the Board’s official notice of election. Located at the top of the flyer is the unit description; at about the middle of the flyer, the date, time, and place of the election are listed; and at the bottom half of the flyer is the sample ballot.7 A handwritten “X” is marked in the box for Local 270, extending beyond the borders of the box. While most witnesses testified to receiving the flyer in a union envelope bearing a union logo, together with a union business card, the flyer on its face does not identify its source. Turning to the Spanish language version of the flyer (the native language of most of the Employer’s mainte- nance employees), at the top and bottom of the page there appears preprinted language that is included on every official Spanish language version of the Board’s official notice of election. The Spanish language version of the flyer, however, does not reproduce the preprinted language in full; rather, the sentences are truncated and words that appear in the official notice are missing. For example, at the top margin, only the words “JUNTA NATIONAL DE” (“NATIONAL BOARD OF”) are visible. At the bottom, where the Board’s official notice disclaims Board involvement in any defacement of the sample ballot and specifies the Board’s neutrality in the election process,8 only the following words appear in full: “Y NO DEBE SER MUTILADO POR NINGUNA PERSONA . . . A LA JUNTA NATIONAL DE RELACIONES DE TRABAJO, Y NO . . . DEL GOBIERNO DE LOS ESTADOS UNIDOS Y NO 6 Excelsior Underwear, 156 NLRB 1236 (1966). 7 A copy of the Spanish language version of the flyer is attached as an appendix. 8 The Board’s official disclaimer reads as follows: “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.” ENDOSA A NINGUNA” (“AND MUST NOT BE DEFACED BY ANYONE . . . THE NATIONAL LABOR RELATIONS BOARD, AND NOT . . . THE GOVERNMENT OF THE UNITED STATES DOES NOT ENDORSE ANY”).9 The week of the election, the Union sent a second marked sample ballot flyer. The second flyer is also two-sided, one in Spanish, the other in English, and also includes a photocopy of the sample ballot section of a Board election notice. A handwritten “X” is marked in the box for Local 270, extending beyond the borders of the box. The second flyer includes various exhortations to vote for the Union, including, “Votando si por la union local 270=Ganar un mejor pago, Seguridad en tu trabajo, Seguro Medico y un Plan de Pension que garantize tu futuro y el de tu familia” (“Voting yes for the union local 270=Earning better pay, Security in your job, Health Insurance and a Pension Plan that guarantees your future and that of your family”). The Employer acknowledges that the second flyer was clearly identified as Union propaganda. In addition to these two flyers, the testimony of both Employer and union witnesses establishes that the Union sent somewhere in the range of 20–30 other flyers to the employees in the months leading up to the election on July 16. The Employer also posted the Board’s official notice of election in prominent places in and around its facility (i.e., the lunchroom, the main administrative building, and the maintenance yard). Nothing on these notices was defaced, including the full language of the Board’s dis- claimer, because the Employer had the documents lami- nated. Further, the Employer held meetings with em- ployees (in the same locations in which it posted the offi- cial Board notices) in order to, among other things, an- swer any questions employees had about the materials they were receiving from the Union. At these meetings, the Employer reviewed sample ballots with employees. The hearing officer recommended overruling the Em- ployer’s objection. The hearing officer found that while the source of the first marked sample ballot was not clearly identifiable on its face, it was evident from the circumstances of the document’s distribution that em- 9 The Employer argues that the Union “redacted” the flyer in a man- ner that “inverted” the meaning of the Board’s disclaimer to suggest that the Board endorsed the Union in the election. We find, however, as did the hearing officer, that the Employer’s translation of the words that appear on the bottom of the flyer is both inaccurate and incom- plete. Indeed, contrary to the Employer’s representations, the words “MUST NOT BE DEFACED BY ANYONE” AND “THE GOVERNMENT OF THE UNITED STATES DOES NOT ENDORSE ANY” are consistent with, and not an “inversion” of, the concept of Board neutrality. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534 ployees would know that it emanated from the Union and was merely propaganda. In its exceptions, the Employer argues, inter alia, that the extrinsic evidence in this case does not support the hearing officer’s conclusion that employees would not have been misled by the marked sample ballot at issue. The Employer asserts that under the Board’s recent decision in Sofitel San Francisco Bay, supra, the election should be set aside. We disagree, for the reasons discussed below.10 II. ANALYSIS The framework for analysis of altered sample ballot cases, a two-pronged test, is set forth in SDC Investment, Inc., 274 NLRB 556 (1985). First, if the source of an altered sample ballot is clearly identifiable on the face of the ballot, then the Board will find the distribution of the document not objectionable because “employees would know that the document emanated from a party, not the Board, and thus would not be led to believe that the party has been endorsed by the Board.” Id. at 557. If, how- ever, as here, the source of the altered sample ballot at issue is not clearly identifiable on its face, under the sec- ond prong of SDC Investment, “it becomes necessary to examine the nature and contents of the material in order to determine whether the document has the tendency to mislead employees into believing that the Board favors one party’s cause.” Id. In making this determination, the physical appearance of a document may support the con- clusion that it is not misleading where the document would appear to a reasonable employee to be an obvious photocopy of an official document marked up by a party as part of its campaign propaganda. See, e.g., Worths Stores Corp., 281 NLRB 1191, 1193 (1986) (document found not misleading where “it was clear that the sample ballot had been cut from another form,” that the printed material was not centered on the page, and that markings from a photocopy machine would have led employees to conclude that the documents were not “official” Board material). In 3-Day Blinds, Inc., 299 NLRB 110, 111 (1990), and the cases cited therein, the Board expanded on the SDC analysis. In that case, the Board made clear that in exam- ining the nature and contents of the document at issue, an inherently fact-based exercise, it will also look to the extrinsic evidence of the document’s preparation, as well as the circumstances surrounding the document’s distri- bution. Id. at fn. 7 (citing cases). While evidence show- ing that a party distributed the document, without more, will not establish that the party prepared the document, it 10 Member Liebman did not participate in Sofitel. However, she agrees with Member Schaumber that, for the reasons set forth infra, Sofitel is distinguishable from this case. is relevant extrinsic evidence to be viewed in the totality of the circumstances of the document’s distribution. Id. at 112. Likewise, evidence of the proper posting of the Board’s official notice of election with its language that disavows the Board’s role in any defacement and speci- fies the Board’s neutrality in the election process will not, without more, be dispositive in cases involving a separate distribution of marked sample ballots.11 Sofitel, supra, slip op. at 3. However, as the court stated in VIP Health Care Services v. NLRB, 82 F.3d 1122, 1130 (D.C. Cir. 1996), it is reasonable to rely on this evidence to bolster the determination that the sample ballot satisfies the SDC Investment analysis. As in the cases cited above, the two-pronged SDC In- vestment standard should be applied to the marked sam- ple ballot at issue in this case. We agree with the hearing officer that under the first prong of the inquiry, nothing on the face of the sample ballot clearly identified the Union as the organization responsible for preparing the document. We also agree, however, that under the sec- ond prong of the inquiry, a reasonable employee would know, based on both the physical appearance of the document and the extrinsic evidence of its source and distribution, that this sample ballot emanated from the Union and was merely propaganda. With respect to the physical appearance of the docu- ment itself, as in Worths Stores, supra, it is apparent that the flyer at issue here is an off-center photocopy of a portion of another document. In addition, the partial reproduction of the Board’s disclaimer at the bottom of the page, coupled with the partial phrases and words that appear at the top and the bottom of the document, would tend to lead an employee to conclude that the flyer is not “official” Board material. Moreover, while certainly not dispositive, the partial reproduction of the Board’s dis- claimer that was included in the flyer, “Y NO DEBE SER MUTILADO POR NINGUNA PERSONA . . . A LA JUNTA NATIONAL DE RELACIONES DE TRABAJO, Y NO . . . DEL GOBIERNO DE LOS ESTADOS UNIDOS Y NO ENDOSA A NINGUNA” (“AND MUST NOT BE DEFACED BY ANYONE . . . THE NATIONAL LABOR RELATIONS BOARD, AND NOT . . . THE GOVERNMENT OF THE UNITED STATES DOES NOT ENDORSE ANY”) would tend to reinforce the impression of the Board’s neutrality in elections. Furthermore, extrinsic evidence of the document’s source and distribution beyond the four corners of the 11 By contrast, in cases involving the defacement of the Board’s offi- cial notice of election, the disclaimer language precludes a reasonable impression that the Board endorses any choice in the election. Brook- ville Healthcare Center, 312 NLRB 594 (1993). OAK HILL FUNERAL HOME & MEMORIAL PARK 535 document itself supports the conclusion that a reasonable employee would not have been misled into believing that the Board endorsed the Union in the election. For exam- ple, it is undisputed that the marked sample ballot flyer at issue was one of a great many mailings that employees received from the Union during the critical period. In- deed, the evidence showed that employees received this marked ballot in the context of having received numer- ous mailings of union propaganda in the months and weeks leading up to the election, including a second marked sample ballot flyer that the Employer concedes was properly identified union campaign literature. In addition, the preponderance of the evidence shows not only that the flyer at issue was mailed in a union enve- lope, but also that the mailing included a union business card.12 Thus, while the union envelope standing alone is by no means dispositive of the source of the sample bal- lot, the union envelope, taken together with the union business card, and when viewed in context of the numer- ous union mailings sent to employees during the critical period, provides relevant extrinsic evidence of the docu- ment’s distribution. 3-Day Blinds, supra. The Employer relies on Sofitel San Francisco Bay, 343 NLRB 769 (2004), to argue that the marked sample bal- lot flyer sent to employees would tend to mislead em- ployees and thus the election should be set aside. In Sofitel, the Board sustained the employer’s objection and set aside the election based on its finding that the marked sample ballot had a tendency to mislead employees into believing the Board endorsed the Union in the election. We find, contrary to the Employer’s contentions, that Sofitel is factually distinguishable. First and foremost, in Sofitel, there were no words or markings on the docu- ment at issue that indicated that it was a photocopy of a portion of another document. Here, in contrast, the flyer at issue is off-center, it contains stray marks that are characteristic of photocopied documents, and the top and bottom of the flyer contain incomplete, truncated por- tions of words. Therefore, the flyer’s appearance would lead employees to believe that it is not official Board material. Rather, employees would recognize the flyer as a photocopy of the middle page of the Board’s election 12 Six employee witnesses (two by stipulation) testified that they re- ceived the marked sample ballot inside a union envelope bearing the Union’s return address and logo, and that a business card from the union organizer was also enclosed in the envelope. One employee called by the Employer, George Wanda, testified that he received the marked sample ballot that identified the Union as the sender, but was unsure if a business card was enclosed. Another employee called by the Employer, Jose Ruiz, testified that he received the marked sample ballot in an envelope that did not identify the Union as the sender; however, Ruiz acknowledged that this mailing came in the context of several other mailings by the Union. notice—the same official notice that was laminated and posted prominently in locations where the Employer held meetings to review sample ballots with employees. Similar to the photocopied document in Worth Stores, supra, 281 NLRB at 1193, the flyer here is not mislead- ing, as it is “clear that the sample ballot had been cut from another form.” Second, the document in Sofitel contained no part whatsoever of the Board’s disclaimer language and there was no evidence that employees had ever seen, much less discussed with the employer, any sample ballots that contained the Board’s disclaimer language. Here, con- versely, the flyer at issue contained a partial reproduction of the disclaimer, and the notice with full disclaimer lan- guage was prominently displayed in locations around the facility where the Employer also held meetings with Em- ployees to discuss, inter alia, the sample ballots. See Hospital General Menonita v. NLRB, 393 F.3d 263, 269 (1st Cir. 2004) (Board’s conclusion that employees would not have been misled by marked sample ballot in favor of union “strengthened” by employees’ exposure to Board’s disclaimer language) (citing VIP Health Care Services v. NLRB, 82 F.3d 1122, 1128–1129 (1996), and Comcast Cablevision, Inc., 325 NLRB 833, 833 (1998)). Third, in Sofitel, extrinsic evidence of the document’s source and distribution was limited to the union envelope it came in. Indeed, the evidence showed that the solitary piece of alleged union propaganda distributed to employ- ees before the election was the marked sample ballot at issue, and the union actually disclaimed responsibility for sending even that document. In this case, however, not only was the flyer at issue sent in a union envelope with a union business card, but the Union also sent 20–30 additional flyers in the same manner, including a sample ballot containing a concededly partisan slogan and mes- sage. Thus, employees would likely perceive the photo- copied sample ballot at issue as the same type of cam- paign propaganda. To be clear, none of the extrinsic evidence in the pre- sent case, standing alone, is necessarily dispositive of the issue of whether the marked sample ballot flyer would have had the tendency to mislead employees. Nonethe- less, the totality of circumstances—the physical appear- ance of the document, coupled with the extrinsic evi- dence of the document’s source and distribution— certainly supports the hearing officer’s conclusion that employees would not have reasonably assumed that the marked sample ballot flyer emanated from the Board.13 13 In an appropriate case, Member Schaumber would consider the type of bright-line rule advocated by former Chairman Hurtgen in Dakota Premium Foods, 335 NLRB 228, 228–229 (2001) (Chairman DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536 We certainly agree with our dissenting colleague that the Board’s neutrality is essential to the integrity of the elec- tion process. However, we find that the totality of the circumstances in this case establishes that the Board’s neutrality has not been reasonably called into question. Based on our careful review of all the facts, we adhere to another well-established principle that also reflects on the integrity of the election process: “Representation elections are not lightly set aside.” See, e.g., Delta Brands, Inc., 344 NLRB No. 10, slip op. at 2 (2005). CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for Laborers’ International Union of North America, AFL–CIO, Local Union 270, and that it is the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and part-time cemetery grounds and main- tenance employees, including all equipment operators, construction, landscape and gardening, shop, and vehi- cle repair employees, leadpersons, foremen and jani- tors, employed by the Employer at its San Jose, Cali- fornia facility, excluding all managerial and administra- tive employees, salespersons, office clerical employees, bereavement employees, all other employees, guards and supervisors as defined in the Act. CHAIRMAN BATTISTA, dissenting in part. Contrary to my colleagues, I conclude that the nature and contents of the material (the marked ballot) had the tendency to mislead the employees into believing that the Board favored a vote for the Union. I would therefore sustain the Employer’s objection and order a second election. Approximately 3 weeks before the election, the Union mailed to all employees a copy of the center panel of the Board’s notice of election, which contained a sample ballot and part of the Board’s standard disclaimer. The document is attached hereto.1 The document and a union business card were mailed to all voting employees in an envelope bearing the Union’s logo and return address. As can be seen from the attachment, the document contains an exact photocopy of a part of a sample Board ballot, with the exception that the “X” is marked in favor of the Laborers’ Union. Given the fact that the ballot is an exact photocopy of an original, there is a reasonable concern that an employee would believe that the “X” was Hurtgen, dissenting), which would require a clear disclaimer on the face of any altered sample ballot. Sofitel, supra, slip op. at 4 fn. 4. 1 As discussed below, I find that the marked ballot is objectionable. The term “document,” as used herein, refers to the entire attached document, of which the marked ballot is a part. also on the original. In these circumstances, and in order to preserve the perception and reality of Board neutrality, I would order a second election. As noted by my colleagues, in assessing the propensity of a marked sample ballot to mislead employees into believing that the Board supports one choice over an- other, the Board first looks to whether the source of the altered sample ballot is clearly identifiable on the face of the ballot. If nothing appears on the face of the ballot identifying the party who prepared it, the Board then looks to whether the ballot “has the tendency to mislead employees into believing that the Board favors one party’s cause.” SDC Investment, Inc., 274 NLRB 556 (1985). My colleagues concede that the sample ballot at issue fails to identify the Union, or indeed any party, as its source. Therefore, we must determine from the sur- rounding circumstances whether the employees reasona- bly would be misled into believing that the Board favors one party’s cause. Applying Sofitel San Francisco, 343 NLRB 769 (2004), I find that the ballot would tend to mislead employees to believe that the Board was in favor of the Union. Sofitel, supra, involved a similar situation. The Board held that the marked sample ballot there had a tendency to mislead employees to believe that the Board favored one of the unions. My colleagues’ effort to distinguish Sofitel is unsuccessful. They say that, in Sofitel, there were no words or markings on the ballot that would indi- cate that it was “necessarily” a photocopy of a Board ballot. However, that is not the issue. The issue is whether an employee would reasonably believe (not nec- essarily believe) that the ballot is a photocopy of a Board ballot. In the instant case, it is precisely the absence of extraneous markings (except for the offensive “X”) which suggests that this ballot is a photocopy of a Board ballot. Anyone familiar with Board ballots can look at the attachment and see that the ballot is such a photo- copy. Similarly, my colleagues say that, in Sofitel, there was no partial disclaimer at the bottom of the document. But, it is precisely that partial disclaimer here which shows that the document is a partial photocopy of an official Board document. My colleagues say that the document contains stray marks that are characteristic of a photocopied document. (By this, they apparently mean the vertical dots on the left side of the document.) I agree. Thus, an employee would reasonably conclude that the marks were not on the original. However, the same cannot be said about the “X” in the box favoring the Laborers. It would be rea- OAK HILL FUNERAL HOME & MEMORIAL PARK 537 sonable for an employee to conclude that this photocop- ied “X” was in the original. I recognize that the posted notice does not contain the “X” and it contains a full disclaimer. However, although part of the Board’s standard disclaimer language appears on the sample ballot, that portion does not clearly com- municate to employees that the Board does not support one party over another. The cases relied upon by my colleagues are distin- guishable. In each of them, the document itself con- tained language that made it clear that the document was union propaganda. Thus, for example, in Worths, 281 NLRB 1191, 1193, the document itself contained con- gratulatory headings and individualized salutations. Concededly, the document was mailed in a union en- velope, and the envelope contained a union business card. However, as my colleagues note, evidence show- ing that a party distributed a document does not itself establish that the party prepared the document. My col- leagues also correctly observe that the Board’s official notice (disavowing any defacements and proclaiming the Board’s neutrality) is not dispositive as to objections that are based upon the separate distribution of a marked sample ballot. In addition, the official notice was posted approximately 2 weeks after the unidentified sample bal- lot was mailed to employees. Therefore, contrary to my colleagues, I do not believe that the Employer’s subse- quent posting of the official notice made the ballot ac- ceptable under SDC Investments. It is axiomatic that the election process is at the heart of the Act, and that the Board’s neutrality (actual and perceived) is essential to the integrity of that process. I would not tolerate conduct which undermines those sac- rosanct values. Accordingly, I would set this election aside.2 2 I recognize that the Union subsequently sent a second flyer which contained prounion propaganda as well as other mailings containing prounion materials. However, these mailings do not cure the vice of the first flyer. Indeed, a reasonable employee would conclude that the first flyer was a photocopy of a Board document and the second flyer was a photocopy of a union document. APPENDIX