Armstrong Cork Co.

National Labor Relations Board - Board Decisions

Aug 1, 1980

250 N.L.R.B. 1282 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Armstrong Cork Company and United Rubber,
Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO-CLC, Petitioner. Case 21-RC-
16150
August 1, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objections to an
election held on December 19, 1979, and the Re-
gional Director's report recommending disposition
of same.' The Board has reviewed the record in
light of the exceptions and briefs, and hereby
adopts the Regional Director's findings and recom-
mendations only to the extent consistent herewith.2
The Regional Director recommended, inter alia,
that Petitioner's Objections 8 and 9 be overruled.
We disagree.
Objection 8 is based on a letter sent to employ-
ees by Plant Manager Heffernan during the last
week of November 1979. The letter discusses the
election and encourages employees to vote against
the Petitioner. The letter states, in part:
I want to remind you of a key point we talked
about in our meeting this week. In the repre-
sentation election on December 19, you will
really vote to decide whether you want to
give the Rubber Workers or the Teamsters a
chance to collect part of your paycheck every
payday for as long as you work in this plant.
And you will decide whether you want to give up
your right to have any say about your job, and to
deal directly with me or your supervisor as you
have in the past.
The unions want very badly to take over your
affairs ....
* * * * l
When you cast your vote on December 19, I
hope you will decide that . . . handling your
own affairs is better than turning them over to
union bosses. [Emphasis supplied.]
i The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election, The tally was 61 for, and 98 against, the
Petitioner; there were 2 challenged ballots, an insufficient number to
affect the results.
I In view of our decision to sustain Objections 8 and 9, we deem it
unnecessary to pass upon the Regional Director's recommendations re-
garding Objections 2, 3, and 4.
250 NLRB No. 147
The Petitioner contends that this letter contains
several misrepresentations of fact and is, on this
ground, objectionable. We agree with the Petition-
er that the letter is objectionable and warrants set-
ting aside the election, for the following reasons.
We find that the above-quoted portion of the
Employer's letter constitutes a threat to employees
that selection of the union would result in the loss
of an existing benefit; namely the right under the
Section 9(a) proviso "That any individual employ-
ee . . . shall have the right at any time to present
grievances to their employer and to have such
grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment
is not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect
.... " Employees thus retain the right with cer-
tain limitations to present grievances to their em-
ployer. The extent to which the Act has preserved
this right in the collective-bargaining process is a
matter of great concern to employees. The Em-
ployer's letter reminds employees that in the past
they have been able to exercise their individual
rights and deal directly with their supervisors, and
conveys the unmistakable message that this right or
benefit will be completely and irreversibly 3 re-
voked if they vote for the union.
In these circumstances, we find that the Employ-
er threatened employees with the loss of an exist-
ing right or benefit, 4 and that this conduct reason-
ably tended to interfere with the employees' free
and uncoerced choice in the selection of a bargain-
ing representative. Accordingly, we shall sustain
the Petitioner's Objection 8.
Objection 9 is based on a sample ballot which
the Employer distributed to employees on the day
and evening before the election. The ballot is a
replica of the Board's sample ballot, except that it
contains no reference to the United States or the
Board, no representation that it is an official ballot,
and no instructions at the bottom. The reproduced
ballot is on the bottom half of a sheet of paper. Im-
mediately above it are printed in large type the
words "Vote Right And Be .... Right," with a
solid arrow extending from the second "Right"
down the outside of the right side of the ballot,
transecting the perimeter approximatley half-way
down, and pointing to the "no" box, which has an
"X" in it. The top half of the sheet of paper con-
tains the heading "Sample Ballot," followed by
3 In view of our decision that the letter constitutes an objectionable
threat, we deem it unnecessary to decide whether the "as long as you
work in this plant" statement constitues an additional ground for finding
the letter objectionable. See, e g, Robbins Myers. Inc., 241 NLRB 102
(1979); Sec.
9
(c) of the Act.
4See, e g, Colony Printing and Labeling, Inc., 249 NLRB No 2 (1980).
1282
ARMSTRONG CORK COMPANY
two paragraphs. The first paragraph states that the
ballot is only a sample and that a National Labor
Relations Board representative will distribute the
official ballot on the day of the election. The
second paragraph urges employees to place their
"X" in the "No" box "just as you see it below,"
and then states that "you are free to vote as you
please and can put your X in either of the blocks
.... " Nowhere on the sheet of paper is the Em-
ployer identified as the author.
The Petitioner, relying on Allied Electrical Prod-
ucts, Inc., 109 NLRB 1270 (1954), and its progeny,
contends that the Employer's conduct in reproduc-
ing and altering the sample ballot was objection-
able. We agree.
In order to insure a fair election, it is imperative
that the Board's neutrality remain inviolate both in
fact and in appearance. As we stated in Allied, and
reiterated in several recent decisions, 5 the repro-
duction of a document purporting to be a copy of
the Board's official secret ballot, which has been al-
tered for partisan purposes, must tend to suggest to
5 See, e.g., Silco. Inc., Atlas Division, 231 NLRB 110 (1977), Mercury
Industries. Inc., 238 NLRB 896 (1978); Building Leasing Corporation, 239
NLRB 13 (1978): EDM of Texas. Div. of Chromalloy American Corp.. 245
NLRB No. 119 (1979).
its reader that this Agency supports the proponent
of the document.
Here, the Employer's ballot is the same size, and
the layout is exactly the same, as the Board's
sample ballot. There is absolutely no indication that
the Employer was responsible for the alterations
appearing on the ballot, for the document bears no
identification which would inform the reader as to
its source. In these circumstances, we find that the
Employer's use of an altered Board ballot creates
the impression that this Agency has allied itself
with the Employer's campaign, and that by distrib-
uting the marked ballots the Employer interfered
with the employees' freedom of choice in the elec-
tion. Accordingly, we shall sustain the Petitioner's
Objection 9.
Having sustained the Petitioner's Objections 8
and 9, we shall set aside the election and we shall
direct that a second election be conducted.
ORDER
It is hereby ordered that the election be set
aside.
[Direction of Second Election and Exclesior foot-
note omitted from publication.]
1283