Foster Poultry Farms

National Labor Relations Board - Board DecisionsAug 28, 2008

352 N.L.R.B. 1147 (N.L.R.B. 2008)

FOSTER POULTRY FARMS 352 NLRB No. 136 1147 Foster Poultry Farms1 and United Food and Com- mercial Workers 8 Golden State. Case 32–RC– 5539 August 28, 2008 DECISION AND DIRECTION OF SECOND ELECTION BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN The National Labor Relations Board has considered objections to an election held December 13, 2007, and the attached administrative law judge’s report recom- mending disposition of them.2 The election was con- ducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 75 votes cast for and 204 votes against the Petitioner, with 25 challenged ballots, an in- sufficient number to affect the results. The Board has reviewed the record in light of the ex- ceptions and briefs, has adopted the administrative law judge’s findings and recommendations with respect to the Petitioner’s Objection 1,3 and finds that the election must be set aside and a new election held. In Ryder Memorial Hospital, 351 NLRB 214 (2007), the Board modified its official ballot to include the fol- lowing language: “The National Labor Relations Board does not endorse any choice in this election. Any mark- ings that you may see on any sample ballot have not been put there by the National Labor Relations Board.” Ry- der, supra at 216. The explicit disclaimer language is to appear on both the actual ballots cast by employees and the sample ballot contained in the notice of election. The Board further required that this language appear on al- tered sample ballots distributed by the parties to an elec- tion, because “[w]hen the Board’s complete disclaimer language does not appear on separately distributed al- tered sample ballots . . . employees might perceive the ballots to be official Board documents that endorse one party or another.” Id. at 215. Under the new policy, “as any actual reproduction of the Board’s sample ballot will necessarily include the 1 We have modified the caption to accurately reflect the name of the Employer. 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 3 The Petitioner has excepted to the judge’s recommendation to overrule its Objections 5 and 6. In light of our adoption of the judge’s recommendation to sustain the Petitioner’s Objection 1, we find it unnecessary to pass on those objections. foregoing disclaimer language, employees will not rea- sonably be misled into believing that the Board supports a particular party, whether or not the reproduced ballot contains additional markings or promotes that party’s cause.” Id. (Footnote omitted.) The Board held that henceforth “we will decline to set aside elections based on a party’s distribution of an altered sample ballot, pro- vided that the sample ballot is an actual reproduction of the Board’s sample ballot, i.e., that it includes the newly added disclaimer language.” Id. at 216 (emphasis added) (footnote omitted). The phrase “actual reproduction of the Board’s sample ballot” thus, refers to the official sample ballot shown on the notice of election, which is identical to the actual ballot cast in the election and which includes the disclaimer in each language included on the ballot. In the present case, the judge recommended sustaining the Petitioner’s Objection 1. She found that the Em- ployer did not comply with the Board’s decision in Ry- der, because the Employer distributed and posted multi- ple copies of a campaign leaflet written in English and Spanish with an altered sample ballot in English, when the official sample ballot contained in the notices of elec- tion4 was also drafted in Spanish and Laotian. We adopt the judge’s recommendation for the reasons stated in her report. The altered sample ballot was not an actual re- production of the Board’s official sample ballot on the notices of election and did not include the Board’s com- plete disclaimer language, i.e., the Spanish and Laotian disclaimers as well as the English disclaimer shown on the Board’s official sample ballot. Therefore, we find, in agreement with the judge, that the Employer’s sample ballot failed to satisfy Ryder. [Direction of Second Election omitted from publica- tion.] Steven R. Feldstein, Esq., for the Employer. Donald C. Carroll, Esq., of San Francisco, California, for the Petitioner. REPORT AND RECOMMENDATIONS On November 13, 2007,1 United Food and Commercial Workers 8 Golden State (the Petitioner) filed a Petition for Certification of Representative seeking to represent a unit of production and maintenance employees at the Porterville, Cali- fornia facility of Foster Farms, Inc. (the Employer). The Employer, a California corporation, with its principal of- fice located in Livingston, California, is engaged in the process- 4 The Region provided the Employer with notices of election printed in English, Spanish, and Laotian. All of these notices included the official sample ballot, which was printed in all three languages and included the Ryder disclaimer language in English, Spanish, and Lao- tian. 1 All dates are in 2007, unless otherwise referenced. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148 ing of poultry at its Porterville, California facility. From No- vember 28, 2006, to November 28, 2007, the Employer shipped and sold poultry products valued in excess of $50,000 to firms located outside the State of California. The Employer admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Em- ployer admits, and I find, that Petitioner is a labor organization within the meaning of Section 2(5) of the Act. Pursuant to a Stipulated Election Agreement, approved on November 28, a secret-ballot election was conducted on De- cember 13, in the following appropriate unit: All full-time and regular part-time production and sanitation employees, receiving clerks, forklift drivers, stackers, and lead employees employed by the Employer at its Porterville, Cali- fornia facility; excluding all managerial and administrative employees, quality control employees, maintenance employ- ees, shipping clerks, salespersons, office clerical employees, all other employees, guards, and supervisors as defined in the Act. The tally of ballots reflected that of the approximately 331 eligible voters, 75 votes were cast for the Petitioner, 204 were cast against Petitioner, and 25 ballots, an insufficient number to affect the election results, were challenged. Following the elec- tion, Petitioner filed timely objections to conduct affecting the election. Pursuant to the Acting Regional Director’s Report on Objections and notice of hearing issued February 29, 2008, certain of these objections have been referred for hearing. The hearing was conducted on March 20 and 21, 2008, in Porter- ville, California. All parties were afforded full opportunity to appear, to intro- duce relevant evidence, to examine and cross-examine wit- nesses, and to argue the merits of their respective positions. On the entire record,2 including my observation of the demeanor of the witnesses,3 and after considering the briefs filed by Peti- tioner and Employer, I make the following findings of fact and recommendations. Objection 5 The Employer through its then Plant Manager Paul Bravinder on or about November 20 invited employees to come to him with any complaints that they had with their working condi- tions. Reading from scripted talking points, Plant Manager Paul Bravinder4 conducted four to six meetings on November 20. After each bulleted item, Bravinder paused and his prior state- ment was translated into Spanish by Tessie Molina, human resources manager for the Porterville facility. Bravinder agreed 2 Petitioner’s unopposed motion to correct the transcript is granted. 3 Credibility resolutions have been made based upon a review of the entire record and all exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have been utilized to assess credi- bility. Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited testimony or docu- ments or because it was inherently incredible and unworthy of belief. 4 At the time of the speech, Bravinder was an admitted supervisor and agent of the Employer within the meaning of Sec. 2(11) and (13) of the Act. He left employment with the Employer shortly thereafter. that he read the following sentence: “Porterville employees, like all non-Union employees, enjoy an open door policy to resolve concerns.” Bravinder agreed that at each meeting held that day, he diverted from the scripted message to add his per- sonal experience that when he worked at a unionized plant, it took much longer to resolve disputes than the nonunion method of employees sitting down with management and resolving problems at the time of the occurrence. Bravinder denied that he invited employees to bring problems to him (other than the sentence quoted above) or said anything about fixing employ- ees’ problems. Bravinder’s testimony was corroborated by Tessie Molina. Additionally, Molina testified that she faithfully interpreted Bravinder’s words into Spanish using the scripted talking points. An employee fluent in both Spanish and English testi- fied that Molina’s translation of Bravinder’s speech was accu- rate and that Molina did not add any additional comments or deviate from Bravinder’s statements. This employee recalled that Bravinder told employees it was more comfortable to have an open door policy than a third party, a Union. Bravinder told employees that they should not be afraid to come to manage- ment with their thoughts, feelings, or anything on their minds. Another employee presented by the Employer recalled that Molina stated that the Employer had an open door policy for employee problems and employees did not need a third party to mediate. There is no dispute that the Employer maintained an open door policy at least several years prior to the filing of the peti- tion herein. It is contained in an employee handbook and hu- man resources manager, Molina, routinely communicated the policy to all new hires. Although the exact language from the handbook was not submitted at the hearing, anecdotal evidence about the use of the procedure was. For instance, on one occasion Jose Rodri- guez utilized the open door policy to complain about bad treat- ment. He was aware of the open door policy throughout his 5- year employment with the Employer. Rosalinda Nevarez util- ized the open door policy throughout her employment. At times she met with Irma Hernandez in human resources and at other times she met with Bravinder. Nevarez recalled that about 2 years prior to the hearing, she met with Bravinder about a foreman. Petitioner presented witnesses who testified that Bravinder, through Molina, stated that employees should come directly to him. A third party was not necessary for resolving problems. One witness testified that Bravinder said, “[I]f you guys have problems, come to me, I can help you, myself or Tessie.” An- other recalled that Bravinder stated, “[W]e could go directly to him to resolve [complaints]. That we don’t need a third person to help us resolve our problems.” Another witness testified that Bravinder said, “[Y]ou guys can come with me with your prob- lem and I’m going to try to resolve it but, I’m going to be leav- ing soon.” To the extent there is discrepancy between Petitioner’s and Employer’s witnesses on this issue, I credit the testimony of Bravinder and Molina and find that employees were reminded that they had an existing open door policy to resolve their con- cerns. My credibility finding is based on the uncontroverted FOSTER POULTRY FARMS 1149 testimony of Bravinder and Molina that there was no deviation from the scripted remarks, except that Bravinder told employ- ees that he thought the open door policy was more expeditious than dealing with a union about employee concerns. I find that these statements did not interfere with the conduct of the election. In the absence of a preexisting open door pol- icy, solicitation of employee grievances during an election campaign tends to restrain and coerce employees when the employer promises to remedy those grievances. Uarco, Inc., 216 NLRB 1, 2 (1974). “The solicitation of grievances alone is not unlawful, but it raises an inference that the employer is promising to remedy the grievances.” Center Service System Division, 345 NLRB 729, 730 (2005), enfd. in relevant part 482 F.3d 425 (6th Cir. 2007). However, when an employer utilizes an open door policy prior to the beginning of a union campaign, the employer may lawfully continue the policy during the cam- paign provided it does not significantly alter “its past manner and methods of solicitation during the campaign.” Center Ser- vice System Division, supra at 730, citing House of Raeford Farms, 308 NLRB 568, 569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert. denied 511 U.S. 1030 (1994).5 There is no evidence that Bravinder’s remarks altered the contours of the open door policy as it existed prior to the elec- tion campaign. That is, the record reflects that employees were free both before and during the election campaign to consult Bravinder in order to resolve their concerns. Thus, I recom- mend that Petitioner’s Objection 5 be overruled. Objection 6 On December 4 and December 11 . . . the Employer held gen- eral meetings with the employees in which the Employer threatened employees with a reduction of wages and a loss of health insurance and retirement benefits as well as with elimi- nation of bonuses if the Union was elected. The employer also threatened to bargain from zero with the Union if the Un- ion was elected. The Employer held a series of meetings on December 4 and 11. About 20–40 employees, typically those in one department or line, attended each meeting. Approximately seven meetings were held on both December 4 and 11. The meetings were conducted by Ritchie King, vice president of chicken opera- tions.6 King spoke in English, reading from prepared charts. The charts were positioned in the front of the room and were in both English and Spanish. When King finished reading a page of the English chart, his speech was repeated in Spanish by Becky Reyes, a human resources supervisor, who read the cor- responding Spanish chart. Neither King nor Reyes regularly worked in the Porterville facility. A portion of the presentation dealt with comparison of wages and benefits at two unionized facilities of Respondent to the wages and benefits at the Porterville nonunion facility. The charts reflected that the unionized facilities had lower wages, 5 See also PYA/Monarch, Inc., 275 NLRB 1194, 1195–1196 (1985); Butler Shoes New York, Inc., 263 NLRB 1031 (1982), relied upon by the Employer. 6 King is an admitted supervisor and agent of the Employer within the meaning of Sec. 2(11) and (13) of the Act. lower wage increases, higher medical plan deductibles and less medical coverage, different retirement benefits, and no bo- nuses. Petitioner presented witnesses who attended the December 4 and 11 meetings. Uniformly, they testified that the Employer threatened employees with a reduction of wages, loss of health insurance, retirement benefits, and bonuses if the Union was elected. As to bargaining from zero, witnesses testified that the Employer threatened to bargain from zero: “Well, they said that if the Union came in, they were going to lower wages. That we were going to start from the bottom, from minimum.” Another witness testified that if the Union came in, “the wages were going to be diminished to the minimum.” Petitioner’s witnesses either denied or could not recall that the Employer’s speeches explained that items such as wages, health insurance, retirement benefits, and bonuses were subject to negotiation. However, one of the witnesses understood the Employer’s speech to say, “Well, they only said that the Union could only give what the company accepted to give. That if the company did not accept to give, the Union cannot give.” The Employer produced the original English and Spanish- language charts. The December 4 charts stated that the Union could only receive what the Employer agreed to. The Decem- ber 11 charts stated as to wages, medical benefits, and retire- ment benefits, “It is negotiable . . . benefits may go down, not change, go up . . . but History says NO.” Petitioner’s witnesses recognized some of the pages of these charts but disputed the accuracy of other pages of the charts or data on those pages. On the other hand, the Employer produced employee and man- agement witnesses who attended the same meetings. The Em- ployer’s witnesses agreed that the charts at the hearing were identical to the charts at the meetings. Additionally, the Employer’s witnesses testified that both King and Reyes stated, “The UFCW Union can only receive what Foster Farms agrees to.” These witnesses did not hear King or Reyes state that medical benefits would be taken away or that wages would be reduced. Neither King nor Reyes said that employee pension or retirement plans would be eliminated. Neither said the Employer would cease making contributions to the 401(k) plan. Neither the employees would lose bonuses if the Union came in. When employees asked questions about wages or benefits, the response was uniformly that these items could go up, down, or stay the same. These were negotiable items and the answer would depend on what happened at the bargaining table. Similarly, King and Reyes testified that no threat of loss of benefits or reduction of wages was made and that the often repeated phrase in response to questions was, “It could go up, down, or stay the same. Everything is negotiable.” Of course, threats of wage reduction and loss of benefits constitute objectionable conduct affecting the results of an elec- tion. See, e.g., Interstate Truck Parts, 312 NLRB 661, 663 (1993), enfd. mem 52 F.3d 316 (3d Cir. 1995) (threat to reduce wages and benefits reasonably tended to interfere with employ- ees rights under the Act); Truss-Span Co., 236 NLRB 50 (1978), enfd. in relevant part 606 F.2d 266 (9th Cir. 1979) (threat to eliminate pension and profit sharing plans interfered with conduct of election). Certainly, statements about bargain- ing from zero should the Union win an election may constitute DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150 objectionable conduct if conveyed as a threat that wages will depend “in large measure upon what the Union can induce the employer to restore.” See, e.g., Federated Logistics & Opera- tions, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005). However, based on the record as a whole, I find that no such objectionable conduct occurred. Although Petitioner’s wit- nesses displayed credible demeanors and appeared to be hon- estly convinced that they had been threatened, I find that the Employer’s witnesses’ testimony and demonstrative evidence belies the recollections of Petitioner’s witnesses. Thus, Re- spondent’s documentary evidence, utilized at the December 4 and 11 meetings, demonstrates that Porterville wages are higher than two other Employer facilities, both of which are unionized. Perhaps Petitioner’s witnesses assumed that if they selected the Union, their wages would be the same as the two unionized facilities. However, I find that this was not communicated to the employees by King and Reyes. Similarly, I credit the testi- mony of King, Reyes, and other Employer witnesses that there were no statements that employees would lose health benefits, bonuses, or retirement plans or that the Employer would bar- gain from zero. Thus, I recommend that Petitioner’s Objection 6 be overruled. Objection 1 The Employer distributed to employees a sample ballot which did not comply in Spanish or Laotian with the Board’s deci- sion in Ryder Memorial Hospital, 351 NLRB No. 26 [214]. The parties stipulated that the election should be conducted in Spanish and Laotian as well as English. In Ryder Memorial Hospital,7 the Board altered its official ballot as part of its effort to conclusively cease case-by-case analysis of whether voters might be misled by partisan use of official ballots during preelection campaigns.8 Specifically, the Board added a two-sentence disclaimer to its official ballots, as follows: The National Labor Relations Board does not endorse any choice in this election. Any markings that you may see on any sample ballot have not been put there by the National La- bor Relations Board. The Board also announced that if, as part of preelection propa- ganda, a party utilized facsimiles of official Board ballots in the future, the two-sentence disclaimer must be present on the bal- lot or a new election will be ordered.9 As the Board stated, 7 351 NLRB 214 (2007). 8 Prior to Ryder Memorial Hospital, a party utilizing an altered NLRB ballot as part of its election propaganda was not obligated to include the neutrality statement or the marking disclaimer on the sam- ple ballot. The potential interference caused by utilizing an unattrib- uted altered NLRB ballot as election propaganda was analyzed on a case-by-case basis pursuant to SDC Investments, 274 NLRB 556, 557 (1985) (not misleading if source of altered ballot identified or, if uni- dentified, nature and contents of material reveal employees would not be mislead). By changing the law, the Board sought to eliminate litiga- tion of this issue and, thus, eliminate the delay inherent in such litiga- tion. 9 Ryder, supra at 216. This explicit disclaimer language will appear on both the ac- tual ballots cast by employees in the election and the sample ballot contained on the Notice of Election, and is in addition to the existing disclaimer language on the bottom of the No- tice of Election. We believe that this modification to the bal- lot will effectively preclude any reasonable inference that the Board favors or endorses any choice in the election. That is, as any actual reproduction of the Board’s sample ballot will necessarily include the foregoing disclaimer language, em- ployees will not reasonably be misled into believing that the Board supports a particular party, whether or not the repro- duced ballot contains additional markings or promotes that party’s cause. Turning to the facts herein, as part of its election propa- ganda, the Employer prominently posted and broadly distrib- uted leaflets containing reproductions of NLRB ballots. This occurred during the week of the election. The “NO” box was marked with an “X” on the sample ballot portion of the leaflet. The leaflets were in both Spanish and English. None of the leaflets was in Laotian. The sample ballot portion of both the Spanish and English leaflets was in English only, regardless of whether the sample ballot was contained in a Spanish or Eng- lish leaflet.10 Pursuant to the stipulated election agreement, official ballots were printed in English, Spanish, and Laotian. Moreover, no- tices of election were printed in English, Spanish, and Laotian. These notices contained the two-sentence Ryder disclaimer in English, Spanish, and Laotian on the lower part of the sample ballot in the center of each trifold notice. The record does not reflect an exact number of employees who were unable to read the English-language Ryder disclaimer on the Employer’s sample ballot. Various sorts of evidence of this kind were discussed during on and off the record conversa- tions. However, neither of the parties had any specific facts or figures regarding unit employees’ abilities to read English. Certainly the four witnesses produced by Petitioner testified that they were unable to read English. Moreover, Petitioner averred, and there is no reason to doubt, that it could produce additional witnesses to testify to the same inability to read Eng- lish. The Employer agreed that many employees speak Spanish but had no estimate regarding abilities to read English.11 The issue is thus whether Ryder requires that the two- sentence disclaimer statement on a sample ballot utilized during an election campaign be printed in all languages utilized for official ballots. I find that it does. Although utilization of foreign-language ballots is a discre- tionary matter,12 Ryder mandates that any party utilizing an 10 In utilizing English-only Ryder disclaimers, I further note that the Employer did not copy the sample ballots on the notices of election. The notices of election contain the Ryder disclaimer in three languages, no matter whether the notice of election is in English, Spanish, or Lao- tian. All of these notices contain a sample ballot with the Ryder dis- claimer written in three languages on each ballot. 11 There is no evidence regarding Laotian employees’ ability to read English. 12 See NLRB Casehandling Manual, Part Two, Representation Pro- ceedings, Sec. 11315; NLRB v. Precise Castings, 915 F.2d 1160 (7th Cir. 1990). FOSTER POULTRY FARMS 1151 altered NLRB ballot during an election campaign communicate the NLRB’s neutrality and its disclaimer of markings to the voters. The rule was adopted due to concern that if the Board’s official ballot was reproduced and then altered, it might mislead employees into believing that the Board endorsed that party. The rule was made mandatory to avoid further litigation of representation matters, thus delaying certainty of election re- sults. Here, the Employer’s altered ballot was posted prominently in the entrance, the security area, the timeclock area, and even in employee restrooms. All employees would have been able to observe the altered ballot. Further, although the Employer carefully translated much of its preelection campaign materials and speeches into Spanish, there was no attempt to translate the Ryder disclaimer language into Spanish or Laotian. I reject any argument that this objection should be overruled due to the actual tally of ballots in a ratio of about 1 vote for the Petitioner to 2.7 votes against representation by the Petitioner. The close- ness of the election as well as other factors enunciated in Cam- bridge Tool & Mfg.13 are not relevant under the Ryder analysis. Recognizing that the NLRB did not specifically enunciate a requirement that foreign-language Ryder disclaimers be present in any sample ballots distributed as campaign propaganda, the Employer argues that such an “extension” of Ryder be given prospective application only, while Petitioner argues that the Board did not intend its holding in Ryder solely for those voters who could read English. Petitioner argues that application of Ryder to the facts in this case does not amount to an “exten- sion” of Ryder. Rather, Petitioner asserts that foreign-language Ryder disclaimers are required implicitly in Ryder. Petitioner further argues that if a foreign-language Ryder disclaimer does constitute “extension” of Ryder, it should nevertheless be given retrospective effect. For the reasons set forth below, I find in agreement with Pe- titioner, that requiring a foreign-language disclaimer on the sample ballots utilized herein is inherent in the holding in Ry- der. Moreover, even were such a requirement not inherent in Ryder, I find that retroactive application of a foreign-language requirement does not work a manifest injustice. In Ryder, the Board added the statement of the Board’s neu- trality and a disclaimer of any markings in order “to ensure that employees are not misled into believing that the Board favors a particular party to an election, and [to] reduce the likelihood of postelection litigation, thereby enhancing the finality of Board elections.”14 It is impossible to reach these goals without for- eign-language Ryder disclaimers. Moreover, the foreign- language Ryder disclaimers were readily available to the Em- ployer because they were already present on the Board’s no- tices of election. Thus, I find that the use of foreign-language 13 316 NLRB 716 (1995): the number of incidents, the severity of the incidents and whether they were likely to cause fear among unit em- ployees, the number of unit employees subjected to the misconduct, proximity of misconduct to the election, degree to which misconduct persists in the minds of employees, extent of dissemination, effect of opposing party to cancel out the effects of original misconduct, close- ness of the vote, degree to which misconduct can be attributed to the party. 14 Ryder, supra at 216. Ryder disclaimers does not constitute an extension of the Ryder decision. Further, were such a requirement considered new or addi- tional to the original Ryder decision, it would nevertheless de- serve retroactive application. The parties agree that the rele- vant inquiry regarding retrospective application is a balance of the ill effects of retroactivity “against the mischief of producing a result which is contrary to a statutory design or to legal or equitable principles.” Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 203 (1947). All decisions are applied retroactively, Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958), unless retroactive application would cause manifest injustice. See, e.g., SNE Enterprises, 344 NLRB 673 (2005) (application of decision retroactively would not result in manifest injustice). Examination of the following factors is utilized to determine whether manifest injustice will occur: “reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the underly- ing law which the decision refines, and any particular injustice to the losing party under retroactive application of the law.” Pattern Makers (Michigan Model Mfrs.), 310 NLRB 929, 931 (1993), citing NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th Cir. 1990). Balancing these factors, I find that retroactive application of a foreign-language Ryder disclaimer requirement creates no manifest injustice. As to reliance on preexisting law, the Em- ployer cites Systrand Mfg. Corp., 328 NLRB 803 (1999), and Dakota Premium Foods, 335 NLRB 228 (2001), in which Spanish-language altered ballots were utilized without benefit of a Spanish-language statement of the NLRB’s neutrality. In both cases, the Board adopted the hearing officers’ recommen- dations based on the SDC case-by-case analysis15 and held that the neutrality statement in the notice of election cured any de- fect in the sample ballots under the circumstances of those cases. These cases are unconvincing because they predate Ryder, Ryder specifically overruled the SDC case-by-case approach, and these cases dealt only with the Board’s neutrality statement rather than the two-sentence neutrality statement plus dis- claimer required by Ryder. If the Employer relied on Ryder to require that the disclaimer be written only in English, it has not advanced that argument here and, indeed, it would be difficult to understand such an argument. Based on these factors, I find the Employer relied upon precedent which could apply by anal- ogy only. Thus, I find that this factor only weakly suggests injustice by retroactive application. Regarding the effect of retroactivity on accomplishment of the purposes of the underlying law which the decision refines, a requirement of foreign-language Ryder disclaimers ensures the policies underlying the decision, i.e., it ensures that all employ- 15 Thus, the hearing officer in Systrand relied upon Worths Stores Corp., 281 NLRB 1191 (1986); C. J. Krehbiel Co., 279 NLRB 855 (1986); and Rosewood Mfg. Co., 278 NLRB 722 (1986). These cases, in turn, cited SDC Investments, 274 NLRB 566 (1985), as the appropri- ate framework for analysis of the issue. Although the hearing officer’s report is not included in Dakota Premium Foods, 335 NLRB 228 (2001), the Board notes that it adopts the hearing officer’s application of SDC. Id. at fn. 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152 ees understand the Board’s neutrality and ensures that employ- ees understand that the Board did not alter the ballot. Thus, I weigh this factor as strongly suggesting the retroactive applica- tion of a foreign-language Ryder disclaimer. Finally, I find there is no particular injustice to the Employer pursuant to retroactive application of a foreign-language Ryder disclaimer requirement. As in SNE Enterprises,16 there will be no finding of unfair labor practices or an order to pay damages in this case. The result here, as in SNE Enterprises, will be invalidation of a prior election and order of a rerun election. Balancing all of these factors, I find no manifest injustice in retroactive application. Accordingly, I recommend that Petitioner’s Objection 1 be sustained. Recommendation I recommend that Objections 5 and 6 be overruled and Ob- jection 1 be sustained. Due to violation of serious Ryder Me- morial Hospital policy considerations, I recommend that the election conducted on December 13, 2007, in Case 32–RC– 5539 be set aside and a new election be directed.17 Further, I 16 344 NLRB 673, 673–674 (2005). 17 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, exceptions to this Report may be filed with the Board in recommend that the following language be included in the No- tice of Second Election in accordance with Lufkin Rule Co., 147 NLRB 341 (1964), and Fieldcrest Cannon, Inc., 327 NLRB 109, 110 fn. 3 (1993): Notice to All Voters The election conducted on December 13, 2008 was set aside because the National Labor Relations Board found that certain conduct of the Employer interfered with the employees’ exer- cise of a free and reasoned choice. Therefore, a new election will be held in accordance with the terms of this notice of election. All eligible voters should understand that the Na- tional Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit and protects them in the ex- ercise of this right, free from interference by any of the par- ties. Washington, D.C. within 14 days from the date of issuance of this Report and Recommendations. Exceptions must be received by the Board in Washington, D.C. by May 16, 2008. Immediately upon the filing of such exceptions, the party filing same shall serve a copy thereof upon the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board may adopt this Recommended Report.