Dakota Premium Foods

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228 Dakota Premium Foods and United Food and Com- mercial Workers Local 789, Petitioner. Case 18– RC–16679 August 27, 2001 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to an election held July 21, 2000, and the hearing officer’s report rec- ommending disposition of them. The election was con- ducted pursuant to a Stipulated Election Agreement. The tally of the ballots shows 112 votes for and 71 against the Petitioner, with 7 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs, and has adopted the hearing officer’s findings1 and recommendations,2 and finds that a certifi- cation of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for United Food and Commercial Work- ers, Local 789, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time production and maintenance employees, including line leads, em- ployed by the Employer at its 425 South Concord Street, South St. Paul, Minnesota facility, and shipping employees employed at the Employer’s Newport facil- ity, excluding office clerical employees, professional and managerial employees, and guards and supervisors as defined in the Act. 1 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. 2 Consistent with his dissent in Systrand Mfg. Corp., 328 NLRB 803 (1999), our dissenting colleague seeks to establish a new “bright line” test in which he would require that an altered sample ballot circulated as election campaign propaganda must contain either a written or oral disclaimer. As in Systrand, we decline to modify well-developed Board precedent with respect to the use of altered or defaced sample ballots as election propaganda. We find that the hearing officer appro- priately applied the Board’s two-part analysis set out in SDC Invest- ments, 274 NLRB 557 (1985), in determining that the Union’s distribu- tion of marked sample ballots was not objectionable because employees receiving these documents could easily conclude that they came from the Petitioner. In addition, contrary to our dissenting colleague, we agree with the hearing officer that the language on the Board’s revised Notices would have effectively disclaimed any participation by the Board in the preparation of the sample ballot, and would have suffi- ciently reassured employees of the Board’s neutrality in the election. We further find no objective record basis for the dissent’s general ob- servation about the Employer’s Spanish-speaking employees’ ability to understand the Board’s election process. CHAIRMAN HURTGEN, dissenting. As I explained in my dissent in Systrand Mfg. Corp., 328 NLRB 803 (1999), I would require a clear written disclaimer on the face of any altered sample ballot, or in the alternative, an oral disclosure by the defacing party that it is responsible for the altered sample ballot. Be- cause the altered sample ballot at issue in this case was accompanied by no such disclaimer, I find merit in the Employer’s objection. Thus, I would set aside the elec- tion. The Employer’s objection contends that the Petitioner interfered with the election by distributing to employees copies of the official sample ballot, defaced with the “Yes” box checked. These sample ballots did not iden- tify the source of the defacement. The only other lan- guage printed on these sample ballots (in English and Spanish) was the following: “[t]he company cannot take away or change your benefits during an organizing cam- paign or contract negotiations. That means the company cannot lower your wages, take away your bonuses or attempt to change your insurance.” The Employer argues that these altered sample ballots gave employees the mis- leading impression that the Board supported the Union. The evidence establishes that, 5 days prior to the elec- tion, the Petitioner created the sample ballots to be passed out at a Petitioner-sponsored prayer service. In the days that followed, the altered ballots were distrib- uted to employees, by anonymous placement in high traffic areas within the plant, including near the employ- ees’ timeclock and in the break room. These altered ballots did not contain a written ac- knowledgment of their origin. Nor was it obvious that the Union was the author of the document. In this latter regard, I recognize that the Union was the party that dis- tributed the sample ballots at the prayer service. How- ever, this does not necessarily mean that employees would understand that the Union was the author of the ballot. It is not unusual for a private person or organiza- tion to pass out governmental documents. The impres- sion of Board authorship is heightened by the message on the sample ballot which purports to set forth Board law. Further, when these ballots were later found near the timeclock and in the break room, the source of the altered ballots would not have been apparent, and em- ployees would not know that the ballots were union 335 NLRB No. 19 DAKOTA PREMIUM FOODS 229 documents. Under these circumstances, and in agree- ment with the Employer, I am concerned about the dan- ger that employees would be misled into believing that the Board supported the Petitioner.3 Concededly, the official Board election notice (in Eng- lish only) posted in the Employer’s facility affirmatively disclaimed Board involvement in any altering of sample ballots.4 However, that disclaimer was not apparent on the face of the altered ballots. Employees are far more likely to see the “yes” mark on a ballot handed to them than they are to read the fine print on a notice placed on a wall. In any case, as I said in my dissenting opinion in Systrand, to protect the Board’s vital interest in preserv- ing its actual and perceived neutrality, and to establish a “bright line” test, I would require a clear disclaimer on the face of any defaced sample ballot or a disclosure by the defacing party that it is responsible for the altered sample ballot. 3 This concern is especially true for the Employer’s Spanish- speaking employees who may not be familiar with our language or political system, and can therefore be less than clear about the Board’s role in the election. 4 The language on the Notice of Election 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 REALATIONS BOARD IS AN AGENCY OF THE UNITED STATES GOVERNMENT, AND DOES NOT ENDORSE ANY CHOICE IN THE ELECTION. Accordingly, I would sustain the Employer’s objec- tion, set aside the election and order that a new election be held.