Silco, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silco, Inc., Atlas Division and United Steelworkers of America, AFL-CIO, Petitioner. Cases 9-RC- 11529 and 9-RM-757 August 3, 1977 DECISION AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, MURPHY, AND WALTHER Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered the objections to an election held on July 2, 1976,' and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the exceptions 2 and brief, and hereby adopts the Regional Director's findings and recommendations. We agree completely with the Regional Director's recommendation to set aside the election on the basis of the Union's Objection 4, relating to the Employ- er's posting of sample ballots, with the "NO" block marked with an "X." : However, in light of the dissenting opinion, it is helpful to review the reasoning which the Board has applied for more than 20 years, in finding the type of conduct engaged in by the Employer to be objectionable. In Allied Electric Products, Inc., 109 NLRB 1270 (1954), the Board stated that it particularly looks with disfavor upon any attempt to misuse its processes to secure partisan advantage, and especial- ly does it believe that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that this Government agency endorses a particular choice. The Board concluded at 1272 that: The reproduction of a document that purports to be a copy of the Board's official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears this Agency's approval. As there are many legitimate methods available to the parties for disseminating campaign propaganda which clearly do not entail I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tall), was 26 for, 35 against, the Union: there were no challenged ballots. 2 In the absence of exceptions thereto, the Board adopts pro forma the Regional I)irector's recommendation that the Union's Objections 1. 2, and 3 and the "Other Conduct" be overruled. :' The Regional Director's report. in pertinent part. is attached to and incorporated in this Decision as Appendix A. 4 Those misspellings and interlineations referred to by our dissenting colleague are contained in only one word. That can hardly be deemed significant Nor do we deem significant the omission of the printed instructions contained at the bottom of the official ballot. 231 NLRB No. 23 an apparent involvement of the Board or its processes, we believe it is unnecessary to permit ultimate freedom to partisans in election cases to reproduce official Board documents for campaign propaganda purposes. As the Regional Director correctly finds, the Board has set aside numerous elections where the parties have used facsimiles of the Board's official ballot and have marked those facsimiles to urge the employees to vote one way or the other. The Board has never held that the facsimile must be an "exact" replica of the Board's official ballot. In Wallace & Tiernan, Incorporated, 112 NLRB 1352 (1955), the Board set aside an election where the employer's sample ballot differed from the official ballot in color, type, size, and placement of the word "sample." Turning to the facts of the instant case, the wording of the ballot supplied by the Employer is identical to that of the official ballots,4 and while a comparison of the Employer's ballot with the official ballot may leave one with the impression that the Employer's ballot was not "official," the ballots were not conveniently juxtaposed for the benefit of the employees. Indeed, there is absolutely no indication that the Employer was responsible for the altered ballot, for the document bears no identification which would inform the reader as to its source. Thus, the basic objection mentioned in Allied Electric remains; namely, that this facsimile necessarily tends to suggest that the material appearing thereon bears the Board's approval.5 In view of all the foregoing, we conclude that the fact that the facsimile posted by the Employer was not an "exact" replica of the Board's ballot does not suffice to neutralize the misleading effect of the altered ballot orjustify its use in this case. Accordingly, we find, like the Regional Director, that by posting the marked ballots the Employer interfered with the employees' freedom of choice in the election, and we shall direct that the election herein be set aside and shall direct a new election. [Direction of Second Election omitted from publi- cation.] 6 MEMBER WALTHER, dissenting: Contrary to my colleagues, I would overrule Objection 4 and certify the results of the election. My 5 In those few cases where alterations were found permissible, several other factors were present. In Associated Lerner Shops of America, Inc., 207 NLRB 348 (1973), the Regional Director, with the Board's approval, emphasized that the employer identified itself as the author of the added comments. In Rett Electronics, Inc., a Whollv-Owned Subsidiary of Tokheim Corporation, 169 NLRB 1111 (1968), the union's campaign pamphlet contained a sample ballot with the Board's name, but omitted the names of both the employer and the union. I [Excelsior footnote omitted from publication.] I10 SILCO, INC., ATLAS DIV. colleagues affirm the Regional Director who recom- mended sustaining the Union's Objection 4 based upon his conclusion that a campaign poster of the Employer impermissibly tended to suggest that the Board was urging the employees to vote "NO," i.e., against the Union. The Employer's campaign poster is to be weighed against the standards the Board set out in Allied Electric Products.' 7 The reproduction of a document that purports to be a copy of the Board's official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears this Agency's approval. .... [T]he Board has decided that in the future it will not permit the reproduc- tion of any document purporting to be a copy of the Board's official ballot, other than one com- pletely unaltered in form and content and clearly marked sample on its face .... I have attached hereto as Appendix B a photocopy reduction of the poster which the Employer exhibited in this case. The poster actually measured 22 by 28 inches. The "Ballot" portion was written in blue and the words "Sample Ballot," "Vote 'No' on July 2," and the arrow were written in red. I have also attached as Appendix C a copy of the notice of the election posted at the Employer's premises which includes thereon an official sample ballot. When the official sample ballot is compared with the Employer's poster, it is obvious that by no stretch of the imagination could the latter ever be interpre- ted as being a reproduction of the former. First, the official ballot is a printed document with the parties participating in the election typed in. The Employer's poster, by contrast, has clearly been handwritten in its entirety. In addition, the poster contains misspell- ings, interlineations, and fails to recite all of the instructions contained on the official sample ballot. 8 When these factors are taken in combination with the enlarged size of the poster and the various colored inks used thereon, it is unfathomable that anyone would be misled into believing that the poster in any way suggested Board disapproval of the Petitioner. I am also attaching hereto as Appendix D a copy of a sample ballot distributed by the employer in A ssociated Lerner Shops of A merica, Inc. 9 In that case the Board realistically concluded (at 349) that the sample ballot there "purports to be nothing more than it actually is, a campaign document prepared for use by the Employer." I think it obvious that the sample ballot used in Associated Lerner Shops much more closely comports with an official Board ballot than does the campaign poster here. It is difficult to understand how the Regional Director and my colleagues reached their conclusion. Possibly, it stems from the Regional Director's inaccurate statement that "what the Board has found permissible [as campaign propaganda] are reproduc- tions of ballots where the Board's name is not used." In both Rett Electronics, Inc., 10 and Associated Lerner Shops, supra, for example, the Board found permissible sample ballots which used the Board's name. In my judgment, the poster which the Regional Director found proscribed was permissible campaign propaganda, and I dissent from my colleagues' failure to find it simply that." 7 109 NLRB 1270. 1272(1954). 8 My colleagues' statement that "the wording of the ballot supplied by the Employer is identical to that of the official ballots [fn. omitted]" is clearly incorrect as the Employer's ballot does not contain the instructions which are at the bottom of official ballots. 9 207 NLRB 348 (1973). "' 169NLRB III( (1968). " While I agree with the Regional Director that large posters may still be proscribed facsimiles of the Board's official ballot (Pyramid Mouldings. Inc., 121 NLRB 788 (1958)). it is clear that the poster here was not the "exact replica" of the ballot referred to in Pyramid Mouldings. Contrary to the intimation of my colleagues. I do not say that any poster may be used with impunity except for an exact replica: as to what degree of similarity to the Board's official ballot I will find impermissible. I must leave to a future case however, clearly Pyramid Mouldings does not dispose of the issue. APPENDIX A OBJECTION NO. 4: There are no facts in dispute regarding this Objection, which alleges that the Employer posted sample ballots with "yes" and "no" blocks reversed, and the ballot marked with an "X." The Employer supplied the undersigned with the actual poster in question. The poster measures 22 by 28 inches. At the top of the original the words "Sample Ballot" are printed in red ink, as are the words, "Vote No on July 2" and the accompanying arrow. The issue presented, therefore, is whether the poster violates the Board's policy as established in Allied Electric Products, Inc., 109 NLRB 1270. There, the Board stated: The reproduction of a document that purports to be a copy of the Board's official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears this Agency's approval.... IT]he Board has decided that in the future it will not permit the reproduction of any document purporting to be a copy of the Board's official ballot; other than one completely unaltered in form and content and clearly marked sample on its face .... Since 1954, the Board has set aside numerous elections where the parties have used facsimiles of the Board's official ballot and have marked those facsimiles to urge the employees to vote one way or the other. In such cases, the Board has set aside those elections where the Board's name 111 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is used, or where it appears that the facsimile is from the United States Government.7 However, the Board has said it will not set aside elections where the Board's official ballot has been duplicated by one of the parties, if it appears that the duplicated ballot was issued, not by the Board, but by one of the parties. See Associated Lerner Shops, supra. There, the Board reasoned that the ballot in question "purports to be nothing more than it actually is, a campaign document prepared for use by the Employer and we deem it unlikely that employees would be lead [sic] to believe that this Board endorsed the position expressed therein." See also Kennametal, Inc., 119 NLRB 1236; and Rett Electronics, Inc., 169 NLRB II11, where a union pamphlet contained a sample ballot with the Board's name, but omitted the names of both the employer and union. What the Board has found to be permissible, in such cases, are reproductions of ballots where the Board's name is not used.8 It is the contention of the Employer herein that the poster in question is permissible under the Board's cases because: (I) the poster was one of five campaign posters that the Employer had placed in its plant and the employees knew that these posters had been posted by the Employer; (2) the large size of the poster clearly indicated to the employees that it was not an official document of the Board; and (3) the poster was clearly marked "Sample." 7 Rebmar. Inc. 173 NLRB 1434; Vernon Convalescent Center Company, 194 NLRB 439 (1971): Regency Electronics, Inc., 200 NLRB 625, enfd. 499 F.2d 1131 (C.A. 7, 1973); Arlen-Burk, 187 NLRB 1030; Certain-Teed Products Corp.. 173 NLRB 229; Modern Chevrolet Co., 169 NLRB 809; The Borden Company, 137 NLRB 1613; United States Gypsum Company, 124 NLRB 1026: Pyramid Mouldings, Inc., 121 NLRB 788; Zimmer Industries, Inc.. 120 NLRB 317; Hughes Tool Company, 119 NLRB 739. It should also be noted that the posters did not carry any identification which would inform the reader as to the source of the campaign material. As to the size, the Board has held, in a case similar to the instant one, that a large poster may still be a facsimile of the Board's official ballot. In Pyramid Mouldings, Inc., supra, the Board set aside the election where the employer had posted four large cardboard placards, measuring 28 by 22 inches, bearing an exact replica of the Board's official sample ballot, which measured 12 by 18 inches. However, in Pyramid, the impermissible posters also carried the designation "Official Sample Ballot." The Board there adopted the recommen- dations of the Regional Director that "[A]lthough there was no physical distribution of these reproductions, but simply an exhibition thereof, it would nevertheless appear that the basic objection mentioned in Allied Electric remains, namely that this reproduction necessarily tends to suggest that the material appearing thereon bears the Board's approval." Based on the foregoing, the undersigned concludes that the poster herein also tends to suggest that the Board was urging the employees to vote "no." Accordingly, after having carefully weighed and reviewed all the evidence regarding Objection No. 4, the undersigned is of the opinion that it has merit and recommends that it be sustained. ' Triangle Super Dollar Market, 225 NLRB 403; Stedman Wholesale Distributors, Inc., 203 NLRB 302; AMF Beaird, Inc., 177 NLRB 599; Custom Molders of P.R. and Shaw-Harrison Corp., 121 NLRB 1007; The Glidden Company, 121 NLRB 752: Paula Shoe Co., Inc., 121 NLRB 673. and Independent Nail & Packing Company, 120 NLRB 677. 112 SILCO, INC., ATLAS DIV. AT=f3IZ B SC~~PSE o-Lal .U ITTED -STATES OF AM,ERICA INAT O !.L' L/A,,OR RELATIONNS.5-&93I O'FFI CIAL Sr ECrT ALL f ro:. C=>r^Al E.:PLO';-EES OF ST LC3. __..r- I-TLA's Div. -N ":2fL VI SI;'io D5 C.- .''r_-.S F'R PU.LCTESD OF COLLECTIVE BFRGAI'' BY¥: S!i--L,,O,:, OF Ar-L-CIO IA,.IK Ail '' IN T ;* i-:' '- J OF "fOUR C'!,Y''CE £5 LiCS NO Y .'n 9, ' -UiiuoED -- i~ 113 I I I Xt. Yl.- 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C l--,Se > ;t, el c I. - " ' " * oD non c :, :l 4 , i-.ce c'!;!"ion, _,,.C -. -, .or' tr Co'" . Co icri (,:' ,, < :r t'4, i-ai'-0 1 :: r;. ot c1!'£ .'hm~ 10, 1"/',4 hlnt r:;-:c1d,,il a ll plA". clr-icrnl crr-?lc'es, route snlcnsren, ,*ffi c(' c'crircl1 * .>:pt,far-, I:Lt:':r nnd . rrl ,t~'r/or c nr . r.fjnod in t:le /,rct. T A n.:: ^a. I'1.',.<: 0 *. 0'(/~C'['Oi 9S' !l'otrh Fourtl, Str-cc, Col,,"cuv, Chio: 6:30 n.n. to 7:15 a.n . !4,/, 'orth r.rnxv ccrc. , Cntlvr , Oi , o: C:15 n.a . to -:1S5 n.r. ALT rALLOrS '!ThTL 0E COI'2D tM CAi .hD -'D T Ct-.o ol vv lt'c A- v11 POLL-, 164 o02'.-: .;-r S"--T. JLISY 2, 1976 UN _ED STA.TES OF AV.*'-CA National Labor ?Relotions Boa-rdc OIt(rCTiA A: " " -IL- { ,SlU O YR" CHO C , i E ii__S_ -~s l:; c -- , . .......... .... .. UY...r - .. ' . r, .' .. c. .. ' . . [ .. L- o.. " " .... .,,.,,.,,, ,,.,. ..... _ , ,,,,.,,,,,,,,,,,,,,, ....... ' , C| SILCO, INC., ATLAS DIV. APPLNDiX D DATE: Febr.ary 21, 1973 -V, u gTiE 4ACE: = _ 7_4~~~PLCE: 115 "'r 10:00A.VM. to 11:S A. M. Cafeteria UNTED STATES OF AMER.CA National Labor Relations 3 rd AFr , s/>< EiOLLYE CS ASrtpr 4OP o A),'kRI Ck, JC. 2 / iAC aAVUILLV, 7Lr:0A Do yoC to be represrented l'o, purposes of co:lctare bar.a;-.:,n by · iTArAIL, UXOLSALZ AN'O LPA '.kJ7?T SOLkz UN'lON, ATL-C;07 MARK AN "X" IN THiE SQUARE OF YOUR CHOICE NO DO NOT SIGN THIS ALLOT7. Fold and drop in ballot box. It you spc;l this ballot return it to Ihe Eori Afscnt for a new one. yoat, X ,/v 7-/$S SQ4,AR' W/L/ & ./v y'V o 0 o ~ V/s r A 1~$ ~v^olo Issued by Lerner Siops I i i