Archer Services, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1990

298 N.L.R.B. 312 (N.L.R.B. 1990)

312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Archer Services, Inc. and Paper Products and Mis-
cellaneous Drivers, Warehousemen, Helpers,
and Messengers, Local 27 a/w International
Brotherhood of Teamsters, AFL-CIO, Petition-
er. Case 2-RC-20349
April 30, 1990
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election held November 6, 1987, and the hearing
officer's report recommending disposition of them.
The election was conducted pursuant to a Stipulat-
ed Election Agreement. The tally of ballots shows
41 for and 382 against the Petitioner, with 16 chal-
lenged ballots, an insufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and briefs and adopts the hearing of-
ficer's findings and recommendations only to the
extent consistent with this decision.'
The hearing officer recommended that the Peti-
tioner's Objection 11 be overruled based on his
finding that an altered facsimile ballot circulated by
the Employer did not tend to mislead employees
into believing that the Board favored the Employ-
er. We disagree.
The Employer operates a courier messenger
service. The Union seeks to represent foot messen-
gers employed at 10 of the Employer's locations in
New York. The parties stipulated into evidence a
two-sided document that was distributed by the
Employer during the campaign.2 The document is
printed on blue paper. One side displays the boxed,
printed heading "Important Facts to Know About
Voting," and lists instructions to employees regard-
ing voting procedures and the time and place of
the election. At the bottom of the page the words
"See Sample Ballot" are followed by a series of
arrows indicating the reverse side of the document.
At the top of the reverse side, the printed heading
"To Vote Against The Union" is centered above a
reproduced sample ballot with a bold, handwritten
"X" in the "no" box. The ballot contains informa-
tion and instructions in English with Spanish trans-
lations; however, the name and location of the Em-
ployer and the name of the Union appear only in
' In the absence of exceptions , we adopt, pro forma , the hearing offi-
cer's recommendation that the withdrawal of Objections 2 to 5, 8, and 9
be approved and that Objections 1, 6, and 7 be overruled.
2 A copy of the document is attached as Exh . "A." The Employer,
however, objected on the basis that it had not been shown that the em-
ployees saw both sides of the document
English.-3 The hearing officer found that much of
the printed matter on the side of the document dis-
playing the facsimile ballot is illegible. The hearing
officer further found that the reproduced ballot
does not contain the Board's standard instructions
to voters to have spoiled ballots replaced, but that
such instructions do appear on the "voting facts"
side of the ballot.
Employee Earl Drummond testified that about 3
weeks before the election he saw the document on
a stack of papers on the desk in front of the office
dispatcher, along with other campaign literature
distributed by the Employer. Drummond stated
that the side of the document concerning voting
facts was visible and that he did not look at the re-
verse side. Employee James Kearse, who is em-
ployed at a different office from Drummond, also
testified that the document was on his dispatcher's
desk. Kearse stated that the dispatcher told him to
take a copy from the stack and read it, and that he
merely glanced at the "voting facts" side of the
document and then threw it away without looking
at the sample ballot on the reverse side.
In his report, the hearing officer initially found
that the parties' stipulation requires drawing the in-
ference that employees saw the altered facsimile
ballot because the Employer circulated the docu-
ment during the campaign. Next, applying the
Board's analysis in SDC Investment, 274 NLRB 556
(1985),4 the hearing officer found that neither side
of the document identified the Employer as being
responsible for its preparation. The hearing officer
further found that the nature and contents of the
material "provide only a clue to employees and
little more, especially in view of the overall close
similarity between the facsimile and the actual
Board ballot." Relying, however, on the testimony
that the document was made available to employ-
ees with stacks of other campaign literature at the
Employer's offices, the hearing officer found that
employees reasonably would have known that the
altered facsimile ballot was partisan propaganda
a In response to the Petitioner's contention , raised for the first time in
its exceptions, that the Employer's document is misleading because many
employees speak only Spanish and the "voting facts" side of the docu-
ment is printed only in English, the Employer submitted a Spanish ver-
sion of the document that it contends was made available to the work
force
4 SDC set forth a two-part analysis to determine whether an altered
ballot was likely to give voters the impression that the Board favored one
of the parties to the election. Relying on the belief that employees are
capable of recognizing campaign propaganda for what it is and evaluat-
ing its clauns, the Board held that an altered ballot that on its face clearly
identifies the party responsible for its preparation is not objectionable. If,
however, the source is not clearly identified, the Board stated that it is
necessary to examine the nature and contents of the material on a case-
by-case basis to determine whether the document is misleading
298 NLRB No. 42
ARCHER SERVICES 313
produced by the Employer.5 Therefore, based on
the circumstances of distribution, the statement
printed above the altered ballot, and the ballot's in-
distinct print, the hearing officer concluded that
the altered ballot was not misleading. The hearing
officer further found that any adverse impact the
document may have had on the outcome of the
election was minimal because of the large size of
the unit and the decisive outcome of the vote.
In its exceptions, the Petitioner contends that the
Board should overrule SDC .and find altered repro-
ductions of official Board material per se objection-
able. Alternatively, the Petitioner contends that,
even applying the SDC test, the document here is
objectionable because it is not readily discernible as
propaganda and is an almost exact and reasonably
clear reproduction of an official ballot.
In SDC and subsequent cases, the Board has ap-
plied the two-part analysis, described above, to de-
termine whether an altered facsimile ballot is ob-
jectionable. Most often, the source of the altered
ballot is not clear, and the Board has examined the
nature and contents of the material to determine
whether voters would be misled into believing that
the Board favored one party to the election.6 For
example, the leaflet at issue in SDC, above, dis-
played on one side a handwritten Spanish-language
facsimile of an official Board ballot. At the bottom
of the page, in Spanish and in the same handwrit-
ing, appeared the message "Remember to vote yes
on December ' 16th"; at the top was, a copy of the
Board's seal . On the reverse side was an unaltered
photocopy of the Board's official sample ballot in
English. The Board concluded that the leaflet was
misleading because the partisan message appeared
to be an integral part of the leaflet and because the
seal and official sample ballot made the document
appear official. Further, the Board noted that em-
ployees might have assumed that the Board had
prepared the handwritten Spanish ballot for the up-
coming election.7
By contrast, the documents in C. , J Krehbiel Co.,
279 NLRB 855 (1986), and Worths Stores Corp., 281
NLRB 1191 (1986), contained additions that were
more clearly partisan than the leaflet in SDC. The
document at issue in Krehbiel consisted of repro-
6 The hearing officer found no evidence, however, to support the Peti-
tioner's assertion that the Employer distributed the ballot on the day of
the election.
6 Cf. Professional Care Centers, 279 NLRB 814 (1986), in which the
Board found that the altered document clearly identified the petitioner as
its source.
' Cf. Rosewood Mfg. Co., 278 NLRB 722 (1986), in which the Board
found that the handwritten message "Vote No" scrawled across a notice
of election and an arrow drawn to the "no" box were clearly discernible
as partisan additions and were , therefore, sufficiently distinct from the
printed notice and sample ballot to preclude the suggestion that the
Board endorsed the employer.
ductions of portions of an administrative law
judge's decision, with partisan slogans and cartoons
on the same page. At the top of the document in
Worths Stores, the word "Congratulations" twice
appeared forming a semicircle around salutations to
each employee and election information; below
was, inter alia, information about bargaining and a
partial reproduction of a sample ballot with an "X"
in the "yes" box. In both Krehbiel and Worths
Stores, the Board held, on the basis of content as
well as appearance, that voters could easily con-
clude that the additions in those cases were parti-
san and not part of "official" Board material. Re-
garding the unofficial appearance of the document
in Worths Stores, the Board further noted that the
printed material was not centered on the page and
that markings from a photocopy machine were evi-
dent.
In this case we initially find, in agreement with
the hearing officer, that it is reasonable to infer, be-
cause of the document's distribution, that employ-
ees saw the side of the document containing the al-
tered facsimile ballot. Further, the testimony to the
contrary of only 2 of 583 eligible voters, from 2 of
the Employer's 10 offices, does not persuade us
that a significant number of employees saw only
the "voting facts" side of the document.
Next, applying SDC, we also agree with the
hearing officer that the document does not identify
the Employer as the source of the altered facsimile
ballot, Therefore, it becomes necessary here to ex-
amine the nature and contents of the document.
Having done so on the basis of both content and
physical appearance, we find that the document
had a tendency to mislead employees into believing
that the material came from the 'Board, or that the
Board favored the Employer.
In terms of content, the document is not clearly
partisan. The "voting facts" side of the document
covers some of the same issues addressed in the
Board's notice of election. Further, nothing on the
"voting facts" side, including the instructions to see
the sample ballot, in any way suggests that the
document is campaign propaganda from the Em-
ployer. Moreover, the message above the altered
ballot, "To Vote Against the Union," sounds even
more "neutral" than the "Remember to vote yes on
December 16" message in SDC, and is therefore
more likely to be interpreted as coming from the
Board. Additionally, as in SDC, there are no other-
wise clearly partisan additions, such as the cartoons
and slogans in Krehbiel and the headings and salu-
tations in Worths Stores. For these reasons, the ma-
terial does not present itself as propaganda and,
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therefore, employees are not capable of evaluating
it as such."
An examination of the physical appearance of
the document further supports our conclusion that
the document is objectionable. Although lacking
instructions regarding spoiled ballots, the facsimile
ballot here is more complete and looks more offi-
cial than the partial sample ballot in Worths Stores.
In this regard, although its print is somewhat indis-
tinct, the facsimile ballot contains the official U.S.
Government and Board seals and states that it is an
official secret ballot. Additionally, the ballot poses
the critical question of union representation for
which the election is being held. Moreover, al-
though photocopy markings and the general layout
of the leaflet in Worths Stores indicated that the
ballot had been added to partisan material, the
printed partisan message and the "X" in the "no"
box appear to be an integral part of the document
displaying the altered ballot. See SDC. For these
reasons, employees could reasonably believe that
the document came from the Board or that the
Board favored the Employer."
Finally, we find that a significant number of unit
employees were affected by the Employer's objec-
tionable conduct. In determining whether certain
objectionable conduct is de minimis, the Board
considers the number of incidents, their severity,
the extent of dissemination, the size of the unit, and
other relevant factors. Metz Metallurgical Corp.,
270 NLRB 889 (1984); Caron International, Inc.,
246 NLRB 1120 (1979). Here, because of the par-
ties' stipulation that the Employer distributed the
document during the campaign-and our inference
that employees saw the side of the document con-
taining the altered ballot-we fmd that its tendency
to affect the outcome of the election was more
than minimal, notwithstanding the large size of the
unit and the decisive outcome of the vote. Cf. Sci-
entific Atlanta, Inc., 278 NLRB 467 (1986).
Therefore, contrary to the hearing officer, we
sustain the Petitioner's Objection 11. Accordingly,
the election is set aside, and we -shall direct a
second election.
[Direction of Second Election omitted from pub-
lication.]
8 Because of the fact that the document as a whole, as well as each
side individually , is not clearly partisan and does not identify the Em-
ployer as its source, we find that it is irrelevant whether Spanish-speaking
employees were able to read the "voting facts" side of the document.
Additionally, we find that, in the absence of record evidence regarding
the number of Spanish-speaking employees or allegations of new and pre-
viously unavailable evidence , this issue was untimely raised in the Peti-
tioner's exceptions.
8 In finding the document to be objectionable , we have retied solely on
its nature and contents . We find, however, that even if we were to exam-
ine the circumstances of its distribution , it still would not have been clear
to employees that the document was prepared by the Employer. In this
regard , it is likely, as the Petitioner contends , that employees circulated
copies of the document among themselves and, therefore, that not all em-
ployees associated the document with the other Employer campaign liter-
ature on the dispatchers' desks. Cf BIW Employees Federal Credit Union,
287 NLRB 423 (1987), in which the Board found that an altered ballot
was not misleading because it was stapled to a partisan memorandum that
was prepared on the employer's stationery and referred to the attached
ballot. Moreover, the document here is so misleading that even those em-
ployees who did see it stacked on the dispatchers' desks could reasonably
conclude, based on its nature and contents, that the Board had provided
copies for distribution by the Employer.