Brookville Healthcare Center

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 594 (N.L.R.B. 1993)

594
312 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 274 NLRB 556 (1985).
2 The Notice of Election specifically states, in large, bold lettering:
WARNING: THIS IS THE ONLY OFFICIAL NOTICE
OF THIS ELECTION AND MUST NOT BE DEFACED
BY ANYONE. ANY MARKINGS THAT YOU MAY SEE
ON ANY SAMPLE BALLOT OR ANYWHERE ON THIS
NOTICE HAVE BEEN MADE BY SOMEONE OTHER
THAN THE NATIONAL LABOR RELATIONS BOARD,
AND HAVE NOT BEEN PUT THERE BY THE NA-
TIONAL LABOR RELATIONS BOARD. THE NA-
TIONAL LABOR RELATIONS BOARD IS AN AGENCY
OF THE UNITED STATES GOVERNMENT, AND DOES
NOT ENDORSE ANY CHOICE IN THE ELECTION.
Irvington Nursing Care Services, Inc. d/b/a
Brookville Healthcare Center and District
1199J, National Union of Hospital and Health
Care Employees, AFSCME, AFL–CIO, Peti-
tioner. Case 22–RC–10629
September 30, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the request for review of the Regional Director’s Sup-
plemental Decision and Certification of Election filed
by the Intervenor, 1115 Nursing Home and Service
Employees Union-New Jersey, a Division of 1115 Dis-
trict Council, HERE, AFL–CIO. The request for re-
view is denied as it raises no substantial issues war-
ranting review.
In denying review, we agree with the Regional Di-
rector’s conclusion that the Intervenor’s Objections 3
and 4, which alleged that several days before the elec-
tion the Employer caused a sample ballot to be marked
and displayed indicating the Board’s and the Employ-
er’s support for the Petitioner, should be overruled, but
for different reasons from those set forth by the Re-
gional Director.
The appropriate standard for evaluating altered
Board documents was announced in SDC Investment,1
in which the Board held that the central issue is wheth-
er the altered document is likely to have given voters
the misleading impression that the Board favored one
of the parties to the election. To resolve this issue, the
Board held that the initial inquiry is whether the source
of the defacement is clearly identified on the face of
the material. If so, then the Board will find that the
document is not misleading, because employees would
know it emanated from a party and would not be led
to view it as a Board endorsement of that party. If the
identity is not evident, then the Board will examine the
nature and contents of the material to determine wheth-
er the document has a tendency to mislead employees
into believing that the Board favors a particular party.
Applying this test in the instant case, the Regional Di-
rector found that since the only marking on the sample
ballot done in pen and ink was an ‘‘X’’ indicating the
choice for Petitioner, the remainder of the ballot was
clearly printed material, and there was no evidence that
the Petitioner or an employee supporting the Petitioner
marked the sample ballot, the ballot did not reasonably
tend to lead employees to believe that one party had
been endorsed by the Board.
The Board recently revised its Notice of Election to
include language specifically disavowing Board partici-
pation or involvement in any defacement, as well as
specifically asserting its neutrality in the election proc-
ess.2 Therefore, in all cases involving defacement of a
revised notice, the SDC Investment analysis no longer
is required. Rather, we deem the new language itself
as sufficient to preclude a reasonable impression that
the Board favors or endorses any choice in the elec-
tion, whether or not an ‘‘X’’ appears on the sample
ballot. Given the prominence of the bold, large-print
‘‘warning,’’ we think it extremely unlikely that an em-
ployee would overlook the disclaimer of Board in-
volvement in any markings; in fact, we think an em-
ployee would be at least as likely to see the ‘‘warn-
ing’’ as any marking such as that involved in the in-
stant case.
Accordingly, we agree with the Regional Director’s
conclusion that Objections 3 and 4 should be over-
ruled, but solely because the Notice of Election at
issue, which contains this new language, thereby pre-
cludes a reasonable impression that the ‘‘X’’ marking
in the box indicating a choice for the Petitioner ema-
nated from the Board.