3-Day Blinds, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1990

299 N.L.R.B. 110 (N.L.R.B. 1990)

110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3-Day Blinds, Inc. and Amalgamated Production
Workers, Local 803, International Union of
Allied, Novelty and Production Workers, AFL-
C10, Petitioner. Case 21-RC-18533
July 20, 1990
DECISION ON REVIEW AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 21
dated September 15, 1989, an election was conduct-
ed by secret ballot on October 13, 1989 Following
the election, the parties were furnished a tally of
ballots that showed that of the approximately 570
voters, 197 voted for and 306 voted against the Pe-
titioner, with 5 nondetermmative challenged ballots
and 8 void ballots
On October 19, 1989, the Petitioner filed timely
objections to conduct affecting the results of the
election Pursuant to National Labor Relations
Board Rules and Regulations, the Acting Regional
Director conducted an investigation On December
14, 1989, he issued a Supplemental Decision and
Certification of Results of Election in the above-en-
titled proceeding, in which, among other things, he
overruled Petitioner's Objection 1, in which the
Petitioner alleged in pertinent part that the Em-
ployer had committed objectionable conduct by
distributing, within 24 hours of the election, an al-
tered Board ballot that gave employees the impres-
sion that the Board favored the Employer In so
doing, the Acting Regional Director found that the
sample ballot distributed by the Employer to em-
ployees had been sufficiently altered so as to be
clearly discernable as to its source, and thus would
have appeared to employees to be part of the Em-
ployer's campaign material rather than an official
communication from the Board
Thereafter, in accordance with Section 102 67 of
the Board's Rules and Regulations, the Petitioner
filed a timely request for review of the Acting Re-
gional Director's Supplemental Decision The Peti-
tioner argued that the altered ballot did not identi-
fy its distributor on its face, and improperly gave
the impression that the Board favored the Employ-
er By Order dated March 6, 1990, a panel of the
Board 1 granted the Petitioner's request for review
with respect to the Acting Regional Director's
overruling of Objection 1
'Members Cracraft and Devaney, Chairman Stephens dissenting
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the entire record in
this case 2 and finds the following
The election was held on October 13 On both
October 12 and 13, the Employer distributed a fac-
simile of the sample ballot used on the official
Notice of Election 3 The ballot was an altered pho-
tocopy, and had a large handwritten "X" placed in
the "NO" box The sample ballot contained explan-
atory language at the bottom that stated in both
English and Spanish "THIS IS HOW TO MARK
YOUR BALLOT TO GIVE THE NEW
OWNERS A CHANCE" Other parts of the
ballot, including the question on the ballot and var-
ious instructions, were also translated into Span-
ish 4
The Employer distributed the facsimile ballot to
employees at their work stations The Employer's
president, Art Schumann, and vice president,
Roger O'Brien, together with various supervisors
and others, visited with individual employees
These corporate officers introduced themselves to
the employees as the employees' new owners and
distributed the altered ballot, as well as another,
unattached "guarantee" handbill 5 During these
meetings, the Employer also asked employees to
vote "no" in the election There is evidence that
many employees were approached in this manner
The Employer's facsimile ballot was produced
and distributed to employees on light green paper
Colored paper had been used by both parties on
other campaign materials 6 The ballots used by the
Board in conducting the election were also printed
on light green paper
In overruling the Petitioner's objection, the
Acting Regional Director concluded that the
marked box on the Employer's distributed ballot
had been sufficiently altered "so as to be clearly
discernable as to its source" He noted that the al-
'The Employer's request for oral argument is denied
'A copy of the document is attached as an appendix
4 Deleted from the top of the facsimile ballot were the words, "United
States of America," "National Labor Relations Board," and "Official
Secret Ballot," as well as the United States and National Labor Relations
Board seals
'Unlike the altered ballot handbill, the "guarantee" handbill is signed
by the Employer's president and vice president Entitled "3 Day Blinds,
Inc Guarantee," the handbill states, "As new owners of 3 Day Blinds,
Inc we hereby guarantee that no 3 Day Blind Employee will be fired or
disciplined by the Company because of the way he or she votes in the
election 'The handbill is dated, and contains a notary seal and signature
6 Pnor to the Employer's distribution, the Petitioner distributed a
handbill on light green paper that was addressed to the Employer's em-
ployees In the handbill, the Petitioner asked employees to vote "Yes" in
the election The handbill contained the name of the Petitioner, and a
large "X" in a hand-drawn "Yes" box The handbill also contained parti-
san, proumon text, and stated that It came from the Petitioner's "Organiz-
ing Committee"
299 NLRB No 6
3-DAY BLINDS 111
tered ballot was "invariably" distributed to em-
ployees with material clearly identifying the Em-
ployer as the material's source He' thus concluded
that the ballot would have appeared to employees
to be part of the Employer's campaign matenal, in-
stead of an official communication from the Board
We disagree
In SDC Investment, 274 NLRB 556 (1985), the
Board adopted a two-part analysis to determine
whether an altered ballot is objectionable First, the
Board will examine the ballot in order to determine
whether 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 misleading, as employees will understand that
the document emanated from a party rather than
from the Board If, however, the source cannot be
clearly identified, the Board will examine the
nature and contents of the matenal in order to de-
termine whether the document has a tendency to
mislead employees into believing that the Board
favors one party over the other Id at 557 In ex-
amining the nature and contents of a document to
determine whether it is misleading, the Board also
considers extrinsic evidence See Baptist Home For
Senior Citizens, 290 NLRB 1059, 1060 fn 4 (1988) 7
However, parties wishing to avoid the uncertainties
inherent in this area may do so by refraining from
using ballot reproductions as campaign matenals
or, if such materials are used, simply by clearly
identifying the source of the materials on the face
of the documents Rosewood Mfg Go, 278 NLRB
722 (1986)
In this case, the altered ballot used by the Em-
ployer did not indicate the party responsible for
the alteration The Employer's name appears no-
where on the face of the ballot The reference to
"the new owners" on the face of the document
does not sufficiently identify the Employer as the
source of the altered ballot There is no direct
statement indicating that these owners, or some
other official of the Employer, actually prepared
the document 8 See Worths Stores Corp. 281 NLRB
7 In Baptist Home for Senior Citizens, above, and BIW Employees Feder-
al Credit Union, 287 NLRB 423 (1987), the Board examined the circum-
stances of chstnbution as part of its analysis of the nature and contents of
the material In so doing, the Board relied on statements in Worths Stores
Corp, 281 NLRB 1191 (1986), and C J Krehbiel Co. 279 NLRB 855
(1986), indicating that it is appropriate to consider extrinsic evidence in
examining the nature and contents of a document to determine if It is mis-
leading We recognize that Baptist Home for Senior Citizens and BIW Em-
ployees Federal Credit Union have implicitly overruled the majority posi-
tion in SDC, above, to the extent that it appears to preclude examination
of the circumstances of distribution See SDC, above at 557 fn 3
8 The lack of any indication of the identity of the preparer of the al-
tered ballot stands in stark contrast to the other document distributed by
the Employer at the same time The "guarantee" handbill was signed by
the Employer's president and vice president, who specifically stated they
1191, 1192 (1986), compare Professional Care Cen-
ters, 279 NLRB 814 (1986)
Therefore, we must examine the nature and the
contents of the document to determine whether it
was likely to give employees the misleading im-
pression that the Board favored the Employer in
the election We first note that on the basis of the
content of the partisan additions, an employee
would not necessarily believe that the Board did
not issue the ballot The "X" in the "No" box on
the ballot suggests that the employees should vote
against the Petitioner The additional language on
the handbill and the physical appearance of the
document do not make the altered ballot any less
misleading The ballot is displayed prominently at
the top of the page, and appears centered It is
marked "Sample," contains official language from
the Board's sample ballot on the Notice of Elec-
tion, and poses the critical question for which the
election is being held It contains instructions to
employees on how to mark the ballot, and what to
do if the ballot is spoiled, specifically referring to
the Board agent 9 Moreover, the "partisan addi-
tions" at the bottom of the handbill are not readily
discernable as non-Board statements The message
below the altered ballot, "This Is How to Mark
Your Ballot to Give the New Owners a Chance,"
is no less neutral than the "Remember to vote yes
on December 16" message in SDC, 274 NLRB at
558 Indeed, the message was not handwritten, but
printed in English and Spanish in a format not dis-
similar to that on the ballot or on Board Notices of
Election Additionally, there are no clearly partisan
additions such as cartoons, slogans, headings, or
salutations that would make it unreasonable for em-
ployees to believe that the document came from
the Board See Archer Services, 298 NLRB No 42
(Apr 30, 1990), compare C J Krehbiel Go, 279
NLRB 855 (1986), summary judgment granted 281
NLRB No 33 (Aug 29, 1986), enfd 844 F 2d 880
(D C Cir 1988), Worths Stores, supra For these
reasons, the material does not present itself as prop-
aganda, and employees would not be capable of
evaluating it as such "
were providing the assurances set forth in the handbill The "guarantee"
handbill was dated, and sworn before a notary, and an official notary seal
appears on the "guarantee"
9 Compare Worths Stores, supra at 1195 (citing Stedman Wholesale Dis-
tributors, 203 NLRB 302 (1973))
10 Although the ballot lacks official seals and references to certain
other language that is included on official Board ballots, the facsimile
ballot here nonetheless is more complete and looks more official than the
partial sample ballot in Worths Stores It poses the critical question re-
garding the election, and contains instructions that appear on the official
ballot The "X" in the "No" box, and the printed message, appear to be
part of a complete photocopy handout And although the Employer may
not have been aware of it, the handout was printed on light green paper
that was similar to that used by the Board in the election Thus, employ-
Continued
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, we find that the circumstances of the
distribution here did not clearly serve to identify
the Employer as the source of the altered facsimile
ballot The Acting Regional Director noted that
the ballot was "invariably" distributed to employ-
ees with material clearly identifying the Employer
as the material's source, and that all witnesses iden-
tified the sample ballots they saw as having been
handed out by the Employer However, that the
ballots were handed out under the Employer's aus-
pices as they were distributed with other Employer
material does not establish that the Employer was
the source of the ballot The ballot was not stapled
or attached to any other campaign matenal identi-
fying the Employer as the source of the material
Indeed, the evidence establishes that the ballot was
handed out separately and distinctly from other
matenal There is no evidence that the Employer
told employees that it had prepared the document
Compare Baptist Home for Senior Citizens, above
(altered ballot not misleading where it was stapled
to a partisan memorandum on the employer's let-
terhead and most employees received an explana-
tion from the employer that it was the employer
who had altered the ballot), and BIW Employees
Federal Credit Union, 287 NLRB 423 (1987) (al-
tered ballot not misleading where it was stapled to
partisan memorandum that was prepared on the
employer's stationery and referred to the attached
ballot) 11 The Employer also handed out an unat-
tached statement of the Employer's guarantee to
employees of nonrepnsal for voting This guarantee
handbill prominently featured the Employer's
name, the president's and vice president's names
and signatures, a date, and a notary public's seal
No such identification appears on the altered
ballot The contrast between this "guarantee" doc-
ument and the altered ballot may have further con-
tributed to misleading employee perceptions that
the altered ballot emanated from the Board Fur-
ther, because there is nothmg connecting the two
documents—neither refers to the other—the distn-
bution logically has nothing to do with who pre-
pared the altered ballot Simply stated, the distribu-
tion of a document by a party does not necessarily
mean that the party, rather than the Board, pre-
pared the document The sample ballot could have
been prepared by the Board and only handed out
by the party There is no evidence here to suggest
to the contrary, or that employees would have
been able to determine that to be the case 12
Therefore, contrary to the Acting Regional Di-
rector, we sustain the Petitioner's Objection 1 In
so doing, we emphasize that parties wishing to
avoid the uncertainties in analysis of altered ballot
cases where such campaign tactics are attempted
may do so by clearly identifying the source of the
material on its face Accordingly, the election here
is set aside, and we shall direct a second election
[Direction of Second Election omitted from pub-
lication]
ees could reasonably believe that the document came from the Board or
that the Board favored the Employer Stratford Furniture Corp, 116
NLRB 1721 (1956), Stedman Wholesale Distributors, 203 NLRB 302
(1973), and Triangle Super Dollar Market, 225 NLRB 403 (1976), are not
to the contrary In each of those cases, an employer reproduced only a
small portion of the ballot, 1 e, the critical question, the union's name,
'Mark an 'X' in the Square of Your Choice," and the "Yes" and "No"
boxes Here, by contrast, the Employer set forth a more complete ballot
More Importantly, in each of those cases, the face of the document con-
taining the ballot clearly revealed that the party distnbuting the ballot
had actually prepared the handout Involved Such is not the case here
li The dissent Incorrectly suggests that we are distinguishing this case
from Baptist Home and BIW on the basis that the ballot here was not
"stapled" to the "guarantee" handbill As we have made plain, however,
our decision rests on the entire circumstances of the distribution here We
particularly note that in both Baptist Home and BIW, employees general-
ly were made aware, either by the distnbuting party or accompanymg
matenal, that the party, and not the Board, had prepared the altered
ballot
12 That the Employer's new owners Introduced themselves as such to
employees at meetings shortly before the distribution of the altered bal-
lots, and that these owners handed out the altered ballot that referred to
the "new owners," does not mean the "new owners" prepared the altered
ballot, or that employees would necessarily understand that they did
Do you wish to be represented se nec
APPENnTY
FOI Goma Employees al
Pam Cams Empmados Os
3—DAY BLINDS, INC.
I.Desea usted estar tado
•
,
T • PRODUCTION WORKERS
803• INTERNATIONAL UNION
OF ALLIED, NOVELTY AND PRODUCTION
WORKERS, AFL—CIO
Ines e negooar colectivamente pot
4111•11111•11111
P—
MARK AN "X" IN THE SOUARE OF YOUR CHOICE
MAROUESE CON UNA "X" DENTRO DEL CUAORO DE SU SELECC1ON
YES NO
SI NO
3-DAY BLINDS 113
00 NOT SIGN THIS BALLOT Fold and woo in boot boA 1160.0 Ni.1111411/Nt• and fthan110 014
NO F1RME ESTA PAPELETA. DOblela y depositeia en at utria eiectorai
If you spoil this ballot return it to the Board Agent for a new one
Si us1ed dana esta papeleta devuelvaia al Agenie da ia Junta y ()wale una nueva
THIS IS HOW TO MARK YOUR BALLOT TO
GIVE THE NEW OWNERS A CHANCE
MARQUE SU BOLETA DE ESTA MANERA Y
DELE A LOS NUEVOS DUEFIOS UNA OPORTUN1DAD
EXHIBIT A