Sdc Investment, Inc.

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SDC Investment, Inc. and Butchers' Union Local 498, United Food and Commercial Workers, Pe- titioner. Case 20-RC-15319 28 February 1985 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered an objection to an election held on 16 Decem- ber 1982 and the hearing officer's report recom- mending disposition of the objection. The election was conducted pursuant to the Acting Regional Director's Decision and Direction of Election. The revised tally of ballots, made after the parties agreed to the counting of 7 previously challenged ballots, shows 49 for and 40 against the Petitioner (Local 498) with 2 challenged ballots, an insuffi- cient number to affect the results. The Regional Director overruled all of the Employer's objections to the election except one, on which he directed a hearing be held before a hearing officer. The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer's findings and recommendations only to the extent consistent with this decision, and finds that the election must be set aside and a new election held. The hearing officer's recommendation that the election be set aside was based on his finding that, shortly before the election, Local 498 prepared a leaflet that displayed on one side a handwritten Spanish language facsimile of the official NLRB election ballot stating at the bottom in Spanish, "Remember to vote yes on December 16th." On the reverse side was an unaltered photocopy of the Board's official sample ballot in English. Local 498 excepts to the hearing officer's findings that it was responsible for distribution of the leaflet and that the leaflet constituted an objectionable reproduc- tion of a Board document altered for partisan pur- poses. The Employer excepts to the hearing offi- cer's failure to order that the notice of the new election include a statement of the reason why the initial election was set aside, as was done in Lufkin Rule Co., 147 NLRB 341 (1964). While we find merit only in the Employer's exception, we modify the hearing officer's report as follows. 1. The hearing officer found that union organizer James Sierra, an undisputed agent of the Petitioner, gave one copy of the leaflet to union sympathizer Moses Esquivel at Esquivel's home in the presence of a second employee. Although the hearing officer discredited certain testimony the Employer offered concerning distribution of the leaflet, the hearing officer did find that the leaflet "was circulated and ultimately came to the attention of the Employer." The hearing officer concluded that Sierra's conduct warranted setting aside the election because the leaflet constituted a reproduction of a Board docu- ment and, under Allied Electric Products, 109 NLRB 1270 (1954), reproduction of such a docu- ment for partisan purposes was per se objectionable conduct. The hearing officer also concluded that Esquivel was not an agent of Local 498, but orga- nizer Sierra nevertheless must be held to have rea- sonably foreseen that Esquivel would circulate the leaflet. We agree with the hearing officer's implicit find- ing that Esquivel circulated the leaflet and the hearing officer's conclusion that Local 498 must be held responsible for this conduct, but we disagree with the hearing officer's finding that Esquivel was not an agent of Local 498, at least for the purpose of circulating the leaflet. Sierra testified that he was prompted to prepare the leaflet by the request of Esquivel, a union adherent, who told Sierra that "there wasn't anything in Spanish." Sierra testified that he gave a single copy of the leaflet to Esquivel so Esquivel could tell his Spanish-speaking co- workers, who comprised about half of the bargain- ing unit, what the English-language sample ballot said and could show them how to vote. Sierra also testified that he did not ask Esquivel to distribute the leaflet, but told him to "talk to the people about it." In explaining the reason for the language on the leaflet saying, "Remember to vote yes on December 16th," Sierra stated that he told Esqui- vel to "remember to tell these people to vote yes on the 16th, that's the most important thing." Since the leaflet was given to Esquivel as an aid for him in soliciting votes, we will presume, absent evi- dence to the contrary and in light of Esquivel's failure to testify, that Esquivel showed the leaflet to other employees.' Accordingly, we conclude that the leaflet was circulated to a sufficient number of employees that it could have affected the election results. Additionally, since Sierra instructed Esquivel to "talk to the people" about the leaflet in the course of soliciting their votes, Esquivel was acting within the scope of his general authority from the Union's organizer when he circulated the leaflet, even though Sierra did not specifically authorize that 1 Member Dennis finds it unnecessary to "presume" that Esquivel showed the leaflet to other employees, because the record supports the hearing officer's implicit finding that Esquivel did in fact distribute the leaflet 274 NLRB No. 78 SDC INVESTMENT particular act. Therefore, at least for the purposes of circulating the leaflet, Esquivel was acting as an agent of the Union. See Bio-Medical Applications of Puerto Rico, 269 NLRB 827 (1984). Accordingly, Esquivel's circulation of the leaflet is attributable to Local 498, and we reject Local 498's argument to the contrary. II. We decline to adopt the hearing officer 's state- ment that the reproduction of Board documents for partisan purposes is per se objectionable conduct. In Allied Electric, supra, the Board announced that it would not permit reproduction of any document purporting to be a copy of the Board's official ballot, other than one completely unaltered, and that it would set aside the results of an election in which the winning party violated this prohibition. The Board's interpretation of this rule over the three decades of its existence has varied . In some cases, the Board has taken a strict , literal approach, focusing on whether the rule by its terms was vio- lated without considering whether the altered ballot at issue would have given the voters the mis- leading impression that the Board favored the party that circulated the altered ballot . In other cases, the Board has placed primary emphasis on the question whether the altered ballot would have been likely to mislead the voters . Compare Mercury Industries, 238 NLRB 896 (1978), and Custom Molders of Puerto Rico, 121 NLRB 1007 ( 1958), with Associated Lerner Shops of America, 207 NLRB 348 (1973), and Stedman Wholesale Distribu- tors, 203 NLRB 302 (1973). In Midland National Life Insurance Co., 263 NLRB 127 ( 1982), we recently held that we would no longer set aside elections on the basis of mis- leading statements made during election campaigns. Subsequently, in Riveredge Hospital, 264 NLRB 1094 (1982), we extended this holding to encom- pass misrepresentations of Board actions. The deci- sion in Midland was grounded in part on our belief that employees are mature individuals who are ca- pable of recognizing campaign propaganda for what it is and evaluating its claims. Thus, we stated in Midland, "As long as the campaign material is what it purports to be, i.e., mere propaganda of a particular party, the Board [will] leave the task of evaluating its contents solely to the employees." 263 NLRB at 131, quoting General Knit of Califor- nia, 239 NLRB 619, 629 (1978) (Member Penello dissenting). Having reexamined the Allied Electric rule in light of our decisions in Midland and Riveredge, we believe that the crucial question should be whether the altered ballot in issue is likely to have given 557 voters the misleading impression that the Board fa- vored one of the parties to the election. When it is evident that the altered ballot is the work of a party, rather than the Board, employees are per- fectly capable of judging its persuasive value. We therefore reject the view that the mere existence of an altered ballot is a per se violation of the Allied Electric rule, as this approach results in invalidating elections even when the supposedly objectionable campaign material is unlikely to mislead any rea- sonable voter into believing that the Board sup- ported a particular party in the election. Accord- ingly, we adopt the view expressed by former Member Penello in his dissent in Mercury Indus- tries, supra, that an altered ballot that on its face clearly identifies the party responsible for its prepa- ration is not objectionable and will not serve as the basis for setting aside an election. See also Best Western Motel, 248 NLRB 1319 fn. 3 (1980) (view of Member Penello). When the party responsible for preparation of the altered ballot is clearly iden- tified on the face of the material itself, 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. 2 When the source of the altered ballot is not clearly identified, 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.3 Such determinations must be made on a case-by-case basis, and "bright line" distinctions are difficult to draw in this area. However, parties that wish to avoid the uncertain- ties inherent in this area may do so by refraining from using altered ballots as campaign materials or, if such materials are used, by clearly identifying the source on the face of the documents. III. In the present case, the leaflet prepared by Local 498 bore no indication of the party responsible for its preparation. Therefore, we must examine the 2 Prior Board decisions that failed to apply this standard, such as Mer- cury Industries, supra , and Custom Molders of Puerto Rico, supra , are over- ruled to the extent they are inconsistent with our decision today In accordance with our usual practice , we shall apply our new stand- ard to all pending cases in whatever stage Midland National Life Insur- ance, supra, 263 NLRB at 133 fn 24 s When the source of an altered ballot is not clearly identified, Member Hunter would find it appropriate to examine the circumstances of the altered ballot 's circulation , as well as its nature and contents, in determining whether the document has the tendency to mislead employ- ees into believing that the Board favors one party over the other Member Hunter believes that in some circumstances the manner in which an altered ballot is distributed makes clear to employees that it has been prepared by one of the parties In his view , a rule prohibiting the use of altered ballots in such circumstances is unnecessarily rigid 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nature and contents of the leaflet to determine whether it was likely to give the voters the mis- leading impression that the Board favored Local 498 in the election. As stated above, one side of the leaflet contained a hand-printed Spanish translation of the ballot structured in the same format as the Board's sample ballot with an additional line at the bottom stating in Spanish, "Remember to vote yes on December 16th." At the top of this side was the NLRB seal, which had been taken from an official Board document. The "[r]emember to vote yes" statement was hand-printed in the same style as the rest of the Spanish side of the leaflet and appeared to be an integral part of the text, rather than an ad- dition to it. Although the Spanish language side of the leaflet was hand-printed, the presence of the Board seal at the top and the official Board sample ballot on the reverse side did much to make the document appear to be official. Moreover, employees might well have assumed that the Board's printed sample ballots were available only in English,' so the fact 4 Neither party requested the Board to supply ballots in Spanish for the election, and it did not do so that the Spanish version of the sample ballot was handwritten would not necessarily exclude the pos- sibility that it was prepared informally by the Board for this election.5 Therefore, we conclude that, by its nature and contents, the leaflet was likely to be perceived by voters as an official Board document and was likely to lead Spanish- speaking voters into believing that the Board wanted them to vote "yes" in the election. Accord- ingly, we conclude that by circulating the leaflet, Local 498 engaged in objectionable conduct, and we adopt the hearing officer's recommendation that the election be set aside and a second election be held.6 [Direction of Second Election omitted from pub- lication.] s Indeed , the Board has held an English -language sample ballot pre- pared by a party to be an objectionable ballot reproduction even though handwritten See Sdca Inc, 231 NLRB 110 (1977) 8 As the Employer has objected to the hearing officer's failure to order that the notice of the new election include, pursuant to Lufkin Rule Co., supra, a statement of the reason for the first election being set aside, we order that such language shall be included in the notice of the new elec- tion See NLRB Casehandling Manual (Part Two ), Representation Pro- ceedings, sec. 11452 1