Rosewood Mfg. Co., Inc.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosewood Mfg. Co., Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO, Peti- tioner. Case 26-RC-6469 26 February 1986 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held 1 October 1982 and the Regional Di- rector's report recommending disposition of them. The election was conducted pursuant to a Decision and Direction of Second Election issued by the National Labor Relations Board.' The tally of bal- lots shows 24 for and 73 against the Petitioner, with no challenged ballots. The Board has reviewed the record in light of the exceptions and brief, has adopted the Regional Director's findings and recommendations2 only to the extent consistent with this decision, and fords that a certification of results of election should be issued. In its objections, the Union alleged that the Em- ployer improperly used, defaced, and posted on its bulletin board official National Labor Relations Board election documents. The alteration consisted of the caption "Vote No" handwritten over the top half of the notice with an arrow drawn to the "No" portion of the sample ballot. The Union con- tended that the "No" box had been marked with an "X".3 The Employer acknowledged that its presi- dent was responsible for altering the notice. In his report, the Regional Director found that the Employer defaced an official Board notice of election for its own partisan campaign purposes and in a manner tending to mislead potential voters by creating the impression that the Board has allied itself with a particular viewpoint in the election. The Regional Director recommended that the ob- jection be sustained and the second election be set aside based on Allied Electric.4 In a recent case, SDC Investments., 274 NLRB 556 fn. 4 (1985), which issued after the Regional Director's report herein, we reexamined the Allied Electric rule in light of our decisions in Midland ' 263 NLRB 420 (1982) 2 In the absence of exceptions, we adopt, pro forma, the Regional Di- rector's recommendation that the Union's Objection 2 be overruled 8 In the copy of the altered notice supplied by the Employer, there-is no "X" in the "No" box. Further, the alterations were made to a notice of election for the first election held on 18 December 1981, rather than the notice of election for the second election 4 Allied Electric Products, 109 NLRB 1270 (1954) National Life Insurance Co.5 and Riveredge Hospi- tal.6 In SDC, we held that "the crucial question should be whether the altered ballot in issue is likely to have given the misleading impression that the Board favored one of the parties to the elec- tion. When it is evident that the altered ballot is the work of a party, rather than the Board, em- ployees are perfectly capable of judging its persua- sive value." Above, 274 NLRB 556. Accordingly, we adopted the view expressed by former Member Penello in his dissent in Mercury Industries, 238 NLRB 896, 897 (1978), "that an altered ballot that on its face clearly identifies the party responsible for its preparation is not objectionable and will not serve as the basis for setting aside an election." Id. We also held in SDC that when the source of the altered ballot7 is not clearly identified, as is the case here, it becomes necessary to examine the nature and content of the material in order to de- termine whether the document has the tendency to mislead employees into believing that the Board favors one party's cause. We will make such deter- minations on a case-by-case basis, since "bright line" distinctions are difficult to draw in this area. As we noted in SDC, parties wishing to avoid the uncertainties inherent in this area may do so by re- fraining from using ballot reproductions as cam- paign materials or, if such materials are used, by clearly identifying the source of the materials on the face of the documents. In this case, the Board notice used by the Em- ployer bore no indication of the party responsible for its alteration. Therefore, we must examine the nature and contents of the document to determine whether it was likely to give voters the misleading impression that the Board favored the Employer in the election. As indicated above, the message "Vote No" was handwritten in large letters across the top of the notice for the first election and an arrow was drawn to the "No" box on the sample ballot below. We fmd that the handwritten message "Vote No" scrawled across the notice as well as the drawn arrow was clearly discernible as an addi- tion made by the Employer and sufficiently distinct from the printed notice and sample ballot so as to preclude the suggestion that the Board was endors- ing the Employer.8 Additionally, we find that the 5 263 NLRB 127 (1982) 6 264 NLRB 1094 (1982) 7 Although the conduct found objectionable in Allied Electric Products, supra, and subsequent cases involved the alteration of a sample ballot, we apply the rationale set forth in SDC to the alteration of official Board notices of election 8 In view of the fact that we do not find objectionable the Employer's alteration of the notice, we find it unnecessary to address the issue of whether the "No" box was marked Continued 278 NLRB No. 103 ROSEWOOD MFG. CO. Employer's use of a notice from the previous elec- tion would have alerted voters that the alteration was not endorsed by the Board. It is unlikely that once voters saw that the altered notice was for an election held over 9 months previously they would have thought that it was an official notice from the Board for the upcoming election. We therefore conclude that the Employer's use of-the notice was not likely to mislead employees into believing that the Board favored its cause. Accordingly, we over- rule the objection and certify the results of the election. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for Amalgamated Clothing and Textile Workers Union, AFL-CIO, and that it is not the exclusive representative , of these bargain- ing unit employees. - MEMBER DENNIS, dissenting. Unlike my colleagues, I find the Employer's use in its campaign of a defaced notice of election ob- jectionable pursuant to authority this Board has ex- pressly validated. The Employer's president wrote by hand the words, "VOTE NO," across the top of the notice and drew an arrow to the sample ballot's "NO" box. These were the sole alterations to the ballot on the , notice of election. In reconsidering parties' campaign use of altered Board election documents Contrary to our dissenting colleague, we find that the facts in this case differ from those in Silco, In'c., 231 NLRB 110 (1977). In Silco, the mes- sage "Vote `No' on July 2!" was handprinted in the same style as the hand-printed sample ballot posted by the employer. The partisan message was not sufficiently distinct from the facsimile ballot and tended to sug- gest that the alteration bore the Board's approval. We are not, as our col- league contends, creating a per se rule upholding alterations except where handwritten ballots are involved. Consistent with the Board's deci- sion in SDC, supra, we have examined the nature and content of the ma- terial at issue here . We have determined that under the circumstances of this case, because the handwritten message was clearly discernable as an addition to the printed ballot it was not likely to have given voters the impression that the Board favored one of the parties in the election I 723 in SPC Investment, Inc., 274 NLRB 556, 556 (1985), we held that "the crucial question should be whether the altered ballot in issue is likely to have given voters the misleading impression that Board favored one of the parties . . . ." We further de- cided employees would not be misled by an altered ballot clearly identifying on its face the party re- sponsible for any changes, but that the "nature and contents of the material" would have to be exam- ined on a "case-by-case basis" in other circum- stances. Id. As the Employer here did not identify itself on the document's face as having altered the notice of election, this case must be judge on its individual circumstances. In Silco, Inc., 231 NLRB 110 (1977), cited with approval footnote 5 of SDC, above, the Board found objectionable the 'Employer's posting of handprinted facsimile sample ballots with the words "Vote 'NO' ON JULY 2!" written just be- neath the facsimile and an arrow drawn to the "NO" box. The Board observed the document did not show the Employer was responsible, and rea- soned that, 'although not an exact NLRB ballot replica, "this facsimile necessarily tends to suggest that the material appearing thereon bears the Board's approval." (Footnote omitted.) Id. As no meaningful distinction exists between the instant facts and those in Silco, a case remaining viable after SDC, I would ; set aside the election.' 1 The majority seeks to distinguish Silco on the ground that the alter- ation there was handprinted, as was 'the facsimile ballot, while here the "Vote No" message was handwritten across the face of a conventionally printed notice of election and sample ballot. My colleagues thus conclude that the Silco addition was not "sufficiently distinct" from the ballot and, unlike here, likely to mislead potential voters. The difficulty with this position is'that the Sdco Board concluded the election should be set aside even though an "exact" ballot replica was not used ("[TJhat the ... facsimile posted by the Employer was not an `exact' replica of the Board's ballot does not suffice to neutralize the mis- leading effect of the altered ballot ..." 231 NLRB 110.) Accordingly, my colleagues turn inside out $ilco's reasoning by suggesting the use of a printed ballot justifies upholding the election . Most often alterations to a printed ballot are by hand. If the fact that the underlying ballot is printed suffices to validate any addition, then the majority has created a per se rule upholding alterations except where handwritten ballots are involved, contrary to Slice and SDC. See SDC, 274 NLRB 557.