Biw Employees Federal Credit Union

BIW EMPLOYEES FEDERAL CREDIT UNION BIW Employees Federal Credit Union and Truck Drivers, Warehousemen and Helpers Union Local #340, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 1-RC- 18874 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS CRACRAFT AND JOHANSEN The National Labor Relations Board, by a three- member panel, has considered objections to an election held 7 May 1987 and the Regional Direc- tor's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally of ballots shows 7 for and 16 against the Petitioner, with 1 chal- lenged ballot, an insufficient number to affect the results. The Board has reviewed the record in light of the exceptions and brief and has adopted the Re- gional Director's findings and recommendations only to the extent consistent with this Decision and Order. Petitioner filed five objections, but it subsequent- ly withdrew Objections 1, 2, 5, and a portion of Objection 3. The Regional Director authorized the issuance of a complaint alleging a violation of Sec- tion 8(a)(1) and (3) by the Employer based on con- duct which is identical with Objection 3. He rec- ommended that the remaining portion of Objection 3 be consolidated with the unfair labor practice case for hearing before an administrative law judge. We agree. The Regional Director also recommended that Objection 4 be sustained and that the election be set aside because the Employer circulated an al- tered ballot which tended to mislead employees into believing that the Board favored the Employ- er. We disagree. In support of Objection 4 the Petitioner present- ed a two-page document admittedly distributed by the Employer to all employees the day before the election. The first page of the document is a memo- randum on Employer stationery from the Employ- er's manager. It is addressed to all employees and urges them to vote "no." The memorandum refers to the attached sample ballot as demonstrating a "no" vote. The second page of the document at- tached by staple to the first page appears to be a copy of an official Board sample ballot with the additions above the reproduction giving the time and place of the balloting and the counting of bal- lots. There is an "x" in the "no" box; a handdrawn 423 arrow directing attention to that box and a state- ment explaining that a mark in the "no" box means the employees do not wish to be represented by the Union. The phrase "Distributed for Informa- tion" is adjacent to the explanatory statement. In SDC Investment, 274 NLRB 556 (1985), the Board adopted a two-part analysis to determine if an altered ballot is objectionable . First, the Board will examine the ballot in order to determine if the source of the altered document is clearly identified on its face. If the source can be clearly identified on examination of the document itself, then the Board will find that the document is not mislead- ing, as employees will understand that the docu- ment emanated from a party rather than the Board. If, however, the source cannot be clearly identi- fied, the Board will examine the nature and con- tents of the material in order to determine whether the document has a tendency to mislead employees into believing that the Board favors one party over the other. Id. at 557. The Regional Director applied the test set forth in SDC, and found that the altered ballot does not, on its face, clearly identify which party prepared it. Applying the second part of the SDC analysis, he found that an employee could conclude that the Board favored a "no" vote. We accept the Regional Director's first conclu- sion that the identity of the party that altered the sample ballot does not appear on the face of the ballot, but we reject his other conclusions. While the check in the "no" box on the ballot suggests that employees should vote against the Petitioner, we do not think that the altered sample ballot in context' tends to give employees the misleading impression that the Board favors a "no" vote. The altered ballot was attached by staple to a partisan memorandum that unmistakably emanated from the Employer, as the memorandum was prepared on Employer stationery . That Employer memorandum directed employees' attention to the attached sample ballot as demonstrating a "no" vote and urged employees to vote "no." Therefore, we con- clude that the altered ballot would appear to em- ployees to be part of the Employer's election cam- paign material, which was plainly identified as such, and not an official communication from the Board. Accordingly, we overrule Objection 4 and remand the remaining portion of Objection 3 to the Regional Director for further proceedings. ' See Worths Stores Corp., 281 NLRB 1191 (1986), and C J. Krehbiel Co, 279 NLRB 855 (1986), indicating the appropriateness of considering extrinsic evidence in examining the nature and contents of a document to determine if it is misleading. 287 NLRB No. 45 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that a hearing be held for the pur- pose of receiving evidence to resolve the issues raised by the portion of Objection 3 concerning the reprimanding and issuance of warnings to employ- ee Joan Karkos and that such hearing be consoli- dated with any hearing held in Case 1-CA-24679 before an administrative law judge. In the event that the unfair labor practice proceedings are dis- posed of before the hearing, a hearing officer will be designated to hear the representation matter. IT IS FURTHER ORDERED that the administrative law judge or hearing officer designated for the pur- pose of conducting the hearing shall prepare and cause to be served on the parties a decision or report containing resolutions of credibility of wit- nesses, findings of fact, and recommendations to the Board as to the disposition of the issues. Any party may, within the time prescribed by Section 102.46 and 102.69 of the Board's Rules and Regula- tions, whichever is applicable, file exceptions to the judge's decision or the hearing officer's report. If no exceptions are filed, the Board will adopt the recommendations of the judge or hearing officer. IT IS FURTHER ORDERED that this proceeding be referred to the Regional Director for Region 1 who shall arrange and issue notice of the hearing. MEMBER JOHANSEN, dissenting. I disagree with the finding of the majority and agree with the Regional Director's position that the election should be set aside. The sample ballot fails to indicate on its face, nor is it obvious, that it was altered, what the alterations were, and who made them. This could mislead the employees into believing that. the ballot was prepared by the Board. See my dissent in Professional Care Centers, 279 NLRB 814 (1986).