Professional Care Centers Of North America, Inc.

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Professional Care Centers of North America, Inc. and Institutional and Public Employees Union, Local 410, American Federation of State, County and Municipal Employees , AFL-CIO. Case 14-RC-10016 30 April 1986 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered an objection to an election held 26 September 1985 and the Acting Regional Director's report recommending disposi- tion of it (pertinent portions attached as an Appen- dix). The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 77 for and 34 against the Petitioner, with 15 challenged ballots, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief, has adopted the Acting Regional Director's findings and recommendations, and finds that a certification of representative should be issued.' CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Institutional and Public Em- ployees Union, Local 410, American Federation of State, County and Municipal Employees, AFL- CIO, and that it is the exclusive collective-bargain- ing representative of the employees in the follow- ing appropriate unit: All employees employed by the Employer at its 5700 Arsenal, St. Louis, Missouri facility, ' Applying our recent decision n SDC Investment, Inc, 274 NLRB 556 (1985), the Acting Regional Director recommended that the Employer's objections be overruled and the Petitioner be certified We agree The Acting Regional Director correctly concluded that "since the name, ad- dress, telephone number, and seal of the Petitioner appear on the face of the altered notice of election, and since the reverse side of that notice identifies the Petitioner as the party responsible for its distribution, it is evident that the Petitioner prepared the document , and that voters would not be misled into believing that the Board favored the Petitioner's cause " Contrary to our dissenting colleague, there is nothing in SDC that re- quires a campaign document expressly "to note that alterations were made, what the alterations were, and who made them " Rather, we stated plainly and directly in SDC 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 (See also Rosewood Mfg Co, 278 NLRB 722 (1986), where the members of this panel affirmed the SDC principles, but differed in their application) Here, as the Acting Regional Director found , the altered ballot in ques- tion satisfies the SDC standards because the Petitioner is clearly identified as the source on the face of the document EXCLUDING confidential employees, busi- ness office clerical and professional employees, guards, and supervisors as defined in the Act. MEMBER JOHANSEN, dissenting. I disagree with the finding of the majority and the Acting Regional Director that the election should not be set aside despite the distribution by the Union of a document containing an altered election ballot. The document fails to indicate any- where that the ballot was altered and what the al- terations were. In SDC Investment, Inc.,' the Board stated that the crucial question in altered ballot cases should be whether the altered ballot in issue is likely to have given voters the misleading impression that the Board favored one of the parties to the elec- tion, and rejected the prior view that the mere ex- istence of an altered ballot is a per se violation of the Allied Electric Products2 rule. The document in dispute fails to note that alter- ations were made, what the alterations were, and who made them. This can mislead voters who may perceive the document as emanating from the Board in that form. The disputed document here has two sides with a reduced photostatic copy of the Board's sample ballot and voting information on the front. At the top of the front page, the Board's name and seal have been deleted and replaced by the Union's name, address and seal. On the ballot itself the "Yes" box has been marked with an "X." Below the ballot, the phrase "The National Labor Rela- tions Board protects your right to a free choice" has been lifted from another portion of the notice and inserted. Side two of the flyer has a reduced photostatic copy of the Rights of Employees. The Board's seal and heading have been removed from the top of the page. The Board's seal and addition- al identifying information have also been excised from the lower portion of the page and have been replaced with, "You have the right to vote by secret ballot-the boss will not know how you vote. Vote union-vote to improve your conditions [-] stand up for your rights"and "Distributed by- Local Union 410-AFSCME, AFL-CIO, St. Louis, MO." The party responsible for the "X" on the ballot is not clear from the face of the document. The im- plication is that the Board is endorsing a "yes" vote. Due to the failure to note that alterations were made, and what the alterations were, I find ' 274 NLRB 556 (1985) 2 109 NLRB 1270 (1954) 279 NLRB No. 106 PROFESSIONAL CARE CENTERS the ballot to be objectionable and would order that a new election be held. Whatever SDC "requires," or whatever "stand- ard" it sets, I do not believe a per se rule which permits a party to alter official Board documents and ignores whether or not voters would be aware the document was altered furthers the objectives of the statute. It seems unlikely, however, that in in- veighing against a per se standard the Board in- tended only to substitute yet another per se stand- ard. Indeed, the repeated references in SDC to identifying the "party responsible for preparation of the altered ballot" (and equivalent language) may, without straining, be read to mean "responsi- ble for the alteration." That reading plainly implies that the fact of alteration must be evident. What, after all, is the point of allowing distribution of al- tered documents so long as the responsible party is known when the recipient has no reason to know there has been an alteration in the first place? APPENDIX In its sole objection, the Employer alleges that on or about 25 September, the Petitioner caused to be delivered by hand and/or by mail an altered copy of the Board's official Notice of Election.3 The Petitioner, while acknowledging that its em- ployee organizing committee engaged in such a dis- tribution, contends such conduct does not provide a basis upon which the election may be set aside. In support of its objection, the Employer pre- sented its recreation supervisor, whose name ap- pears on the list of eligible voters used in the con- duct of the election. She states, in a sworn state- ment, that on 25 September, the day before the election, she discovered two sheets of paper which had been placed in the storm door at her home by an unknown person or persons. Those sheets in- cluded the altered copy of the Board's Notice of Election, Exhibit 2, and an additional document titled "information for Employees of Truman Re- storative Center."4 (For a number of years, prior ownership operated the facility under the name Truman Restorative Center.) The witness further states that Exhibit 3 had been previously distribut- ed by mail and that she provided copies of the doc- uments to the Employer. Further, she recieved similar documents at their homes. She states that in response to her questions, two employees told her that they also had found copies of Exhibit 2 left for them at their homes. ' A copy of the document in question is attached hereto and marked as Exh 2 4 A copy of the second document is attached hereto and marked as Exh 3 815 The Employer also provided as witnesses, the two above-mentioned employees who, in their re- spective sworn statements, state that copies of Ex- hibit 2 were left at their homes on 25 September, the day before the election, by an unknown person. The first employee witness states that Exhibit 2 was brought in the hours by a family member and did not have any accompanying documents. The second employee witness states that Exhibit 3 and a third letter from the Union's shop steward and sec- retary-treasurer.5 The Petitioner presented no witnesses during the investigation . However, in its statement of position, the Petitioner acknowledges that Exhibit 2 was prepared by volunteer members of its organizing committee and advises that the document received limited distribution by one person making house calls. The Petitioner contends that probably no more than four or five copies were so distributed and that no copies are known to have been mailed to eligible voters. The Petitioner further contends that the source of such document is clearly identi- fied and that the conduct does not constitute a basis for setting the election aside. In SDC Investment, Inc., 274 NLRB 556 (1985), the Board announced that it would no longer find that reproduction of Board documents for partisan purposes is per se objectionable conduct. In SDC Investment, the Board held, . . . we believe that the crucial question should be whether the altered ballot in issue is likely to have given voters the misleading im- pression that the Board favored one of the par- ties to the election. When it is evident that the altered ballot is the work of a party, rather than the Board, employees are perfectly capa- ble of judging its persuasive value. The Board also adopted the rule that where the party responsible for preparation of the altered ballot is clearly identified on the face of the materi- al itself, voters will know that the document came from the party and will not be let to believe that the party has Board endorsement. Even where the source of the altered material is not clearly identi- fied, an examination of the nature and content of the material on a case-by-case basis will determine whether the document has a tendency to mislead employees into believing that the Board favors one party's cause. In the instant situation, as acknowledged by the Petitioner, Exhibit 2 was prepared and distributed by volunteer members of its organizing committee with Petitioner's approval. The first side of that 5 A copy of the letter is attached hereto and marked as Exh 4 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD document contains a reproduction of the Board's Notice of Election, on which the sample ballot is marked with an "X" in the yes box. Above the re- produced notice of election is the name, address, telephone number, and seal of the Petitioner. On the reverse side, under an unaltered reprodcution of the notice of employee rights contained on a Notice of Election, is the identification, "Distribut- ed by-Local Union 410, AFSCME, AFL-CIO, St. Louis, MO." In its statement of position , the Employer con- tends that the placement of the Petitioner's name and seal above the reproduced Board document suggests that the Board and Petitioner were con- nected in conducting the election , thus corrupting the Board's neutral position . Further, the Employer contends that the identification on the reverse side of the document, that is, that the document was distributed by the Petitioner, is insufficient to iden- tify the Petitioner as the party responsible for the alteration of the document. However, in the circumstances herein , since the name, address, telephone number, and seal of the Petitioner appear on the face of the altered notice of election, and since the reverse side of that notice identifies the Petitioner as the party responsible for its distribution, it is evident that the Petitioner pre- pared the document, and that voters would not be misled into believing that the Board favored the Petitioner's cause. The undersigned, therefore, con- cludes that the Petitioner's preparation and distri- bution of Exhibit 2 does not constitute a basis for setting the election aside. Accordingly, the undersigned recommends that the Employer's objection be overruled.