APPENDIX A
NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of
September 28, 2007
DECISION AND CERTIFICATION OF REPRESENTATIVE
By Chairman Battista and Members Schaumber
and Walsh
The National Labor Relations Board, by a three-member panel, has considered objections to an election held April 23, 2004, and the hearing officer’s report (attached as Appendix B) recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement and in four units, designated as Units B, C, D, and E, respectively. The tally of ballots for Unit C shows 181 for and 88 against the Petitioner, with 1 void ballot and 39 challenged ballots, an insufficient number to affect the results. The tally of ballots for Unit E shows 164 for and 101 against the Petitioner, with 49 challenged ballots, an insufficient number to affect the results.[1]
The Board has reviewed the record in light of the exceptions and briefs, has adopted the hearing officer’s findings[2] and recommendations as explained below, and finds that a certification of representative should be issued for Units C and E.
This case involves, inter alia, an election objection based on a party's distribution of an altered sample ballot during its preelection campaign.[3] For the past 25 years, the Board, on a case-by-case basis, has examined allegedly objectionable altered sample ballots to determine whether they would have a tendency to mislead voters into believing that the Board favors one party over another in the election. As explained in detail below, we are today revising the Board’s official election ballot, so that it will now include language that asserts the Board’s neutrality in the election process and disclaims the Board’s participation in the alteration of any sample ballot. As we believe that this disclaimer language will preclude any reasonable impression that the Board endorses a particular choice in the election, we will cease to evaluate altered sample ballots on a case-by-case basis.
The Board's Historical Treatment of
Altered Sample Ballots
The Board's primary concern in cases involving altered
sample ballots is that a party's reproduction and use of an official Board
document as campaign propaganda might mislead employees into believing that the
altered document represents an official statement of the Board and,
consequently, that the Board endorses that party in the election. To address this concern, the Board initially
adopted the position that if a party reproduced and in any way altered
the Board's election ballot, the Board would set aside the election upon the
losing party's objection. See Allied
Electric Products, 109 NLRB 1270 (1954).
Subsequently, in SDC Investment,
274 NLRB 556, 557 (1985), the Board determined that the per se rule adopted in Allied
Electric failed to take account of employees' ability to recognize altered
sample ballots as campaign propaganda and to evaluate them as such; consequently,
the Allied Electric rule resulted in
the needless invalidation of Board elections.[4] Accordingly, the Board modified its approach,
explaining that the critical inquiry in these cases is whether the altered
ballot at issue "is likely to have given voters the misleading impression
that the Board favored one of the parties to the election." SDC,
274 NLRB at 557. To aid it in its
resolution of this question, the Board adopted a two-part analysis. The Board first examines whether the altered
ballot on its face clearly identifies the party responsible for its
preparation; if it does, the Board will find that the ballot is not objectionable,
as the employees would know that the document emanated from a party and,
consequently, they would not be led to believe that the party had been endorsed
by the Board. If, however, the altered
ballot does not on its face clearly identify its source, the Board further
evaluates the nature and contents of the document to determine whether it would
have a tendency to mislead employees into believing that the Board favors one
party over another.
The SDC Board may have expected that parties rationally would choose to avail themselves of one of those options rather than risk the possibility of a re-run election based on their use of unattributed altered ballots in their election campaigns. Subsequent experience, however, has not borne out that expectation. Following SDC, parties have continued to use unattributed altered sample ballots as campaign propaganda,[5] and the Board and the courts have continued to find it necessary to scrutinize the documents and the circumstances of their distribution[6] on a case-by-case basis. The ultimate result has been to draw out postelection litigation and to compromise the finality of Board elections.
In an effort to curtail altered sample ballot litigation, the Board in 1993 revised its official Notice of Election to include language expressly disavowing the Board's participation in the alteration of any sample ballot and proclaiming the Board's neutrality in the election process.[7] Shortly thereafter, confronted with an election objection based on a party’s defacement of the sample ballot contained within the Notice of Election, the Board, in Brookville Healthcare Center, 312 NLRB 594 (1993), concluded that the disclaimer language on the revised Notice of Election was sufficient to preclude a reasonable impression that the Board favors or endorses any choice in the election, and that the SDC analysis would no longer be required in cases involving defacement of the Notice of Election (including the sample ballot portion of the notice).[8]
Notwithstanding the disclaimer language on the Board’s election notices, parties have continued to file objections on the basis of altered sample ballots that have been disseminated to employees in connection with a party’s preelection campaign. Those separately distributed sample ballots, in contrast to the sample ballot contained on the Notice of Election, often do not include the Board’s disclaimer language. The absence of the disclaimer language on those sample ballots can be attributed, at least in part, to the graphical layout of the Notice of Election and the placement of the disclaimer language. Although the disclaimer appears in large, bold-print lettering, it is printed along the bottom of the Board's 14 by 25 inch Notice of Election, spanning all three of the panels constituting the notice.
The altered sample ballots examined by the Board in objections cases have usually been photocopies of the sample ballot contained on the middle panel of the Board's tri-fold Notice of Election.[9] See, e.g., Oak Hill, supra; Sofitel, supra; Dakota Premium Foods, supra; 3-Day Blinds, 299 NLRB 110 (1990). Given the placement of the Board's disclaimer language on the election notice, photocopies of the sample ballot frequently either fail to capture any of the disclaimer appearing several inches below or, alternatively, incorporate only truncated portions of the disclaimer language, i.e., the words appearing on the middle panel of the election notice. See, e.g., Oak Hill, supra.
When the Board’s complete disclaimer language does not
appear on separately distributed altered sample ballots, we are concerned that
employees might perceive the ballots to be official Board documents that
endorse one party or another.
Accordingly, the Board has generally been reluctant to conclude that the disclaimer language on the Notice of
Election—which may not be immediately accessible to the employees as they are
reading and evaluating the altered sample ballots—would preclude any reasonable
impression that the Board favors one party’s cause in the election.[10] Consequently, in cases involving separately
distributed defaced or altered sample ballots, the Board has continued to apply
the SDC analysis, while citing the disclaimer language contained on the
Notice of Election as one factor that may be considered. See, e.g., Oak Hill Funeral Home and
Memorial Park, 345
The Board’s Revision of Election Ballots
and the Prospective Treatment of Altered
Sample Ballot Objections
Upon consideration of our prior efforts to deal with this issue, we are now persuaded that a simple modification to the Board’s official election ballot will not only eliminate the need for a case-by-case evaluation of altered sample ballots—and thereby minimize postelection litigation—but will additionally accomplish the principal objective of ensuring that employees clearly understand that the Board does not endorse any choice in elections. Accordingly, we are revising the Board’s official election ballot to include the following language, taken from the disclaimer language on the Notice of Election, which specifically asserts the Board’s neutrality in the election process and disavows any Board involvement in the defacement or alteration of any sample ballots:[11]
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
Labor Relations Board.
This explicit disclaimer language will appear on both the actual 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 Notice of Election. We believe that this modification to the ballot 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, employees will not reasonably 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.[12] As such, the case-by-case analysis of the nature and contents of altered sample ballots developed in SDC will no longer be required. Rather, we will decline to set aside elections based on a party’s distribution of an altered sample ballot, provided that the sample ballot is an actual reproduction of the Board’s sample ballot, i.e., that it includes the newly added disclaimer language.[13]
In our view, this approach has the advantage of establishing clear guidelines for parties who choose to utilize sample ballots in their preelection campaigns. In addition, and more importantly, this approach both will ensure that employees are not misled into believing that the Board favors a particular party to an election, and will reduce the likelihood of postelection litigation, thereby enhancing the finality of Board elections.
Application of the SDC Analysis to This Case
Although our revision of the Board’s official election ballot and Notice of Election, explained above, renders unnecessary the application of the SDC two-part analysis in all future cases involving election objections based on altered sample ballots, the employees in the instant case did not have the benefit of those revised Board documents, and the altered sample ballot at issue here did not include the new disclaimer language. Accordingly, our resolution of this case, as well as any other arising before the new sample ballot and Notice of Election are in use, requires application of the standard articulated in SDC.
The relevant facts are fully set forth in the attached
hearing officer’s report. Briefly,
during its preelection campaign, the Petitioner distributed flyers and other literature
throughout the Employer’s facility.
Utilizing similar distribution methods, the Petitioner also distributed
reproductions of the sample ballot appearing on the Spanish-language version of
the Board’s Notice of Election, with a bold handwritten “X” marked in the “Si”
box and extending well beyond the borders of that box. Those reproductions included the seals of the
Because the preparer of the sample ballots at issue was not identified on the ballots, SDC and 3-Day Blinds require an examination of the altered ballots’ nature and contents and the circumstances of their distribution. For the reasons explained by the hearing officer, we agree with her finding that the altered sample ballots were not objectionable under that precedent. The Petitioner used the same methods to distribute the altered sample ballots as it used to distribute other campaign propaganda; only fragments of the Board’s disclaimer language appeared on the ballots; and the fact that the document was a photocopy was apparent from the off-center image, the cut-off words, and the copy-machine markings. Additionally, the Employer posted the Board’s official Notice of Election in several locations throughout the facility. The language in that Notice disclaimed “any markings that you may see on any sample ballot” and announced the Board’s nonendorsement of “any choice in the election.” Although not dispositive of the second step of the SDC analysis,[14] the disclaimers support a finding that the sample ballots are not objectionable. In these circumstances, the hearing officer properly recommended under SDC that this portion of Employer’s Objection 2 be overruled. See Oak Hill Funeral Home, supra, 345 NLRB No. 35, slip op. at 3-4 (overruling objection where the altered sample ballot was openly distributed by union, included only fragmentary language from the Board’s election-notice disclaimer, and displayed an off-center image and stray marks characteristic of photocopied documents).[15]
Remaining Objections
In addition to the objection based on the Petitioner’s circulation of the altered sample ballot, discussed above, at issue are three objections (Objections 1,5, and the remaining portion of Objection 2) filed by the Employer to conduct allegedly affecting the results of the elections in Units C and E. Employer Objections 1 and 5 allege that particular actions by the Board agents conducting the elections affected the election results. As described in greater detail in the hearing officer’s report, these objections relate to the Board agents’ handling of questions as to whether certain respiratory-department employees should have voted in Unit C or Unit E, and the related issue of whether the election in Unit E was affected by a 45-minute hiatus during the voting period while a Board agent obtained additional ballots needed to complete the election. We adopt the hearing officer’s recommendation to overrule both Objections 1 and 5 because, as the hearing officer found, the number of voters potentially affected was insufficient to affect the outcome of the elections, and because the record does not show any accompanying circumstances suggesting that the Board agents’ conduct at issue otherwise affected the results of either election. See Midwest Canvas Corp., 326 NLRB 58, 58 (1998); Jobbers Meat Packing Co., 252 NLRB 41, 41 (1980).
The remaining portion of Objection 2 concerns the defacement of Board election notices. We agree with the hearing officer’s finding that the defaced election notices do not require that the elections be set aside, because the inclusion of the Board’s standard disclaimer language on the notices “preclude[s] a reasonable impression that the Board favors or endorses any choice in the election.” Brookville, supra at 594. Accordingly, we adopt the hearing officer’s recommendation to overrule this part of Objection 2.
CERTIFICATION OF REPRESENTATIVE
It is certified that a majority of the valid ballots have been cast for Union Insular de Trabajadores Industriales y Construcciones Electricas, Inc., and that it is the exclusive collective-bargaining representative of the employees in the following appropriate units:
UNIT C
Included: All regular full time and part time professional employees including licensed practical nurses (LPN), respiratory therapy technicians, sterile supply technicians, X-Ray technicians, operating room technicians, pharmacy assistants, occupational therapy assistants, record room technicians, magnetic resonance technicians, medical emergency technicians, cardiovascular technician, orthopedic technician, sonograph technicians, CT scan technicians, dental assistant, ophthalmic technicians, doppler technicians, EKG technicians, and mammography technologists.
Excluded: All other regular full time, part time and managerial employees including the classification[s] included in other units, physicians, register[ed] nurses, supervisors and guards as defined in the Act.
UNIT E
Included: All regular full time and part time nonprofessional employees including clerks of the emergency room, operating room, medical record, admissions, laboratory, skilled nursing, X-Ray, physical therapy and home care areas, ward clerks, secretaries of the pharmacy, quality assurance, CT scan and MRI, home care, nutrition, nuclear medicine, maintenance, hospice, nursing, Ryder Academy, skilled nursing, chaplains, preventive medicine, laboratory, respiratory therapy, record room, resident projects, social service and Ryder home department, housekeeping employees, lunch room and dietary employees, transcribers, seamstress, laundry employees, cooks, maintenance employees, dental assistance helper, assistant librarian, warehouse employees, orderlies, data entry employees of home care and materials department, lunch room, pharmacy and gift shop cashiers, drivers, teacher’s assistants, record room codification officer[,] plumbers, painters, mechanics and cabinet ma[]kers.
Excluded: All other regular full time, part time managerial employees including the classifications set forth in other appropriate units, physicians, registered nurses, Human Resources office employees, secretaries to the executive director, administrator, legal counsel, medical director, and medical faculty supervisors and guards as defined in the Act.
Dated,
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Robert J. Battista, |
Chairman |
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Peter C. Schaumber, |
Member |
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Dennis P. Walsh |
Member |
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(Seal) National Labor Relations Board
APPENDIX A
APPENDIX B.
Hearing Officer’s Report and Recommendation on Challenged
Ballots and Objections
Pursuant to a Stipulated
Election Agreement approved by the Regional Director on March 26, 2004, an election
by secret ballot was conducted on April 23, 2004 among four units of employees
of the Employer1, to determine whether or
not said employees desired to be represented for the purpose of collective
bargaining by Union Insular de Trabajadores Industriales y Construcciones
Electricas, Inc, hereinafter the Petitioner or the
In accordance with the
Stipulated Election Agreement entered into by the parties, the election in all
four units was scheduled and held simultaneously on April 23, 2004 from 6:00 to
10:00 am and from 2:00 to 6:00 pm at the Employer’s lounge in the Hospital
facilities in Humacao,
The Tally of Ballots, made
available to the parties at that time, revealed the following:
Unit C
181 for the Petitioner
88 against the Petitioner
39 challenged ballots
1 void ballot
Unit E
164 for the Petitioner
101 against the Petitioner
49 challenged ballots
0 void ballots.
As the Petitioner did not
receive a majority of the votes cast in Units B and D and the Petitioner did
not file objections to the election, the Regional Director certified the
results of the election.
On April 30, 2004, the
Employer filed timely objections to the election and to conduct affecting the
results of the election in Units C and E.
Pursuant to the Stipulated
Election Agreement, and in conformity with Section 102.69 of the Board's Rules
and Regulations, the Regional Director caused an investigation to be made of
the Objections to the election and on June 4, 2004 issued a Report and
Recommendation on Objections overruling said objections in their entirety. The Employer filed exceptions to the Regional
Director’s Report and on January 26, 2005, the Board issued a Decision and
Order Directing Hearing. In its Decision and Order, the Board adopted the Regional
Director’s Report on Objections except that it found that Employer’s objections
1, 2 and 5 raised substantial and material issues of fact and law that
warranted the holding of a hearing and directed that the undeterminative
challenged ballots in both units be resolved in order to determine the
potential voter disenfranchisement issue raised by the Employer objections.
Consistent with the Board’s
remand, on May 4, 2005 the Regional Director issued a Supplemental Report on
Challenged Ballots and Objections and Notice of Hearing resolving a substantial
number of the challenged ballots and referring others to evidentiary hearing together
with objections 1, 2 and 5. The Employer
again filed exceptions to the Regional Director’s Supplemental Report. On June 6, 2005, the Regional Director
treated the Employer’s exceptions as a motion for reconsideration and issued a
Second Supplemental Report on Challenged Ballots and Objections. On June 22, 2005, the Board issued a Decision
and Order adopting the Region’s findings and recommendations.
Pursuant to this Order, a
hearing was conducted on July 6, 7 and 11, 2005 in
The findings, conclusions,
and recommendations herein are based upon the undersigned’s consideration of
the record as a whole and observation of the demeanor of the witnesses.2
For the reasons discussed
more fully below, I find that the revised tally of ballots in Units C and E
reflects that the Petitioner won the election in these units by substantially
more votes than the number of potentially disenfranchised voters and therefore
conclude that the delay and/or confusion allegedly caused by the Board Agent’s
decision to challenge the respiratory therapy technicians and home care
employees, as well as by the lack of sufficient ballots in Unit E did not
affect the outcome of the election herein.
Accordingly, I recommend that Objections 1 and 5 be overruled. I also find and conclude that the defaced
sample ballot did not lead employees to believe that the Board favored the
Petitioner in the election, and recommend that Objection 2 be overruled. I also
recommend that having overruled the Employer’s Objections 1, 2 and 5, that a
Certificate of Representative issue in favor of Petitioner in Units C and
E.
i. the challenged ballots and final vote tallies
Pursuant to the Second
Supplemental Report on Challenged Ballots and Objections Supplemental Decision
on July 6, 2005 and before the commencement of the hearing, 74 of the 88
remaining challenged ballots in Units and C and E were opened and counted and a
revised tally of ballots issued. With
regard to the remaining 14 challenged ballots, the parties stipulated on the
day of the hearing that these individuals were not eligible to vote in the
election.3 Thus, the final revised tally of ballots
reflects the following results:
Unit C
325 eligible voters
209 votes for Petitioner
102 against the Petitioner
311 Total Valid Votes
Counted
Unit E
307 eligible voters
179 votes for Petitioner
114 votes against Petitioner
293 Total Valid Votes
Counted
ii. factual
background—ryder memorial hospital operations
The Employer operates a
non-profit acute care hospital located in Humacao,
iii. the objections
A. Objections 1 and 5: The Delay in the Voting
Process Had the Potential of Disenfranchising
Prospective Voters
1. Issue
Because the Employer’s
Objections 1 and 5 essentially relate to the same conduct, I have decided to
treat them together in this decision. In
essence, the Employer‘s Objection No.1 alleges that on the day of the election,
around 7:10 a.m. the Board agents conducting the election ran out of pink
ballots for Unit E and the election process for said unit was stopped while the
agents photocopied additional ballots at the hospital mail room, thereby
depriving eligible employees of the opportunity to vote for a period of 45
minutes during the morning session. The
Employer‘s Objection No. 5 alleges that through the voting process Board Agents
advised employees classified as respiratory therapists that they should vote in
Unit E instead of in Unit C as stipulated by the parties in the description of
the included classifications in Unit C.
2. Findings and Conclusions
Based on the record as a whole,
and as more fully explained below, I find that this conduct did not have the
effect of disenfranchising potential voters.
Therefore, I recommend that Objections 1 and 5 be overruled.
3. Statement of Relevant Facts
The evidence relating to
these objections is essentially undisputed.
Various witnesses5
testified that the election was held on April 23, 2004, at the
At about appropriately 7:10
in the morning, one of the Board agents noticed that they were running out of
the pink ballots utilized for Unit E and began making phone calls to the Region’s
office without being able to contact anybody.
Another Board agent also began making phone calls6 and shortly thereafter the voting
process for unit E was halted for about 45 minutes to an hour due to the lack
of pink ballots. At that point, the
Board agent located at the door was instructed to inform Unit E employees to
return later during the voting process until additional ballots were obtained.7
The voting process for the other units continued during this period. The voting process for Unit E was resumed at
approximately 8:00 or 8:10.a.m.
The pink ballots for Unit E
were photocopied at the hospital’s photocopying machine in the Hospital’s
internal mailroom which is located near to the voting area. A Board agent came to the mailroom office
accompanied by the Employer’s in-house counsel to make the copies, and several
minutes later another Board agent came to the mailroom to pick-up the ballots. Both Board agents were wearing the
Witnesses Felicita Agosto
Delgado, Laura Aviles Santana and Luis J. Sepulveda testified that during the
voting process several employees in the classification of respiratory therapist
and Home Care employees were instructed by a Board agent to cast their vote
under challenged ballot in unit E.8 The evidence also established that the
Employer’s observers argued with the Board agent about these employees being required
to vote in the wrong unit given their academic preparation. According to these witnesses the situation
caused some unspecified delay in the voting process. Nevertheless, it is undisputed that all the
employees that entered at the polling area during the voting period were
allowed to vote.
The proper standard for
determining whether delays caused by Board Agent conduct in the opening of
polls warrant setting aside an election is whether the number of employees
possibly disenfranchised is sufficient to affect the election outcome, not
whether those voters, or any voters at all, were actually disenfranchised. Wolverine
Dispatch, Inc., 321
The evidence revealed that all the voters that
entered the voting area were allowed to vote9
and that all valid challenged ballots, including those of the respiratory
therapist and home care employees who voted under challenged ballots, were
opened and counted in the revised tally of ballots issued in both Units C and
E. The evidence also revealed that by virtue of the Second Supplemental Report
on Challenged Ballots and the Stipulation of the parties, all challenged ballots
were resolved.
With regard to Unit C, the
evidence reflects that 325 out of 346 of the approximate number of eligible voters
actually voted in this bargaining unit. Thus, the delay and/or confusion allegedly
caused by the Board Agent’s decision to challenge the respiratory therapy
technicians and home care employees, as well as by the lack of sufficient
ballots in Unit E, potentially caused 21 voters to be disenfranchised from voting
in Unit C. On the other hand, the
revised tally of ballots reflects that the Petitioner won the election in this
Unit by 107 votes or 86 more votes than the number of potentially
disenfranchised voters.
As noted, the revised tally
of ballots of Unit E reveals that 307 out of 337 of the approximate number of
eligible voters actually cast their vote in this voting unit.10
Thus, only 30 of the 337 eligible employees did not exercise their right
to vote and therefore, the delay caused by the lack of sufficient ballots in
Unit E, potentially caused 30 voters to be disenfranchised from voting in Unit
E. On the other hand, the revised tally
of ballots in this unit reveals that Petitioner won the election in this unit
by 65 votes. Consequently, the Petitioner
received 35 more votes than the 30 potentially disenfranchised voters. Accordingly,
as the number of potentially disenfranchised voters is insufficient to affect
the outcome of the election in Units C or E, I recommend that Objections 1 and
5 be overruled. Wolverine Dispatch, Inc., supra; Pea
Ridge Iron Ore Company, supra.
B. Objection 2:
The Defaced and/or Altered Sample
Ballot Misled Voters into Believing that
the Board
Favored Petitioner
1. Issue
In essence, Employer’s
Objection No. 2 alleges as objectionable conduct the distribution of a defaced
and/or altered sample ballot with an X mark in the “Yes” box; and the defacement
of the sample ballot with an X mark in the “Yes” box in two of the official
Board Notices of Election.
2. Findings and Conclusions
Based on the record as a
whole, and as more fully explained below, I find that the distribution of the
defaced and/or altered sample ballot does not constitute objectionable conduct
under the circumstances of this case.
Therefore, I recommend that Objection No. 2 be overruled.
3. Statement of Relevant Facts
The evidence11 established that during the Petitioner’s
pre-election campaign it distributed flyers and other literature throughout the
facility. In this regard the hospital’s
Executive Director José Feliciano testified that Union literature was placed on
the windshields of employees’ cars and on the hospital’s roof ledges with the
obvious intent of having them fly off ubiquitously in the hospital’s
premises. Besides the usual distribution
of leaflets the Petitioner also posted stickers, flyers and other campaign
propaganda on the hospital’s walls.
Security guard Pedro Lleras
Arroyo testified that several days prior to the election12 he saw a copy of a defaced sample
ballot marked with an “X” in the “Yes” box that descended from the higher
hospital floors to the ground. He also
saw several of these same flyers in the employees’ parking lot strewn on the
ground, a copy posted on the wall of the hallway leading to the image center,
and one on the Employer’s bulletin board located in the hallway between the
Jose Joaquin Morales, the
Employer’s security general supervisor, testified that during the first week of
April, he saw a copy of the same defaced sample ballot posted on the outer
portion of the glass encasement containing the hospital’s bulletin board next
to where the official Board Notice to Election was posted, on the second and
third floor bulletin boards, and at the entrance door of the Intensive Care
Unit on the fourth floor. Human Resources Director Maria del Rosario Figueroa
Lopez testified that she posted the official election Notices sent by the Board
in several areas of the Hospital and that she had to replace two of the Notices
(one in the area of the Hospital’s lobby and the other at “Casa de Salud”)
because they were defaced with a hand written X mark in the “Yes” box. She also testified that she replaced both
Notices immediately.
The standard for evaluating altered
Board documents was announced in SDC
Investments, 274
In Brookville Health Care Center, 312
With regard to the
distribution of defaced sample ballots as campaign propaganda, the Board has
held that where the Notice of Election includes language that there is no Board
involvement in any defacement of its notices, there is no longer a need to
determine whether altered or defaced ballots could reasonably mislead employees
into believing that the Board favored one of the parties to the election. Dakota
Premium Foods, 335
If the Board had continue to
adhere to the principles of Dakota
Premium, supra, the Employer’s objection regarding the distribution of a
copy of a defaced sample ballot marked with an X in the “Yes” box, should be
overruled without further analysis.
However, in Sofitel San Francisco
Bay, 343
The leaflet at issue in this
case is a white “8 1/2 by 10 “paper that contains a sample ballot with an X in
the “Yes” box.15 The X mark is a bold handwritten mark
crossing from side to side the “Yes” box area. Because the leaflet does not
identify the source of origin of the defaced sample ballot it become necessary
here to examine the nature and contents of the document.
Referring to the leaflet’s
nature and contents, the same is a reproduction of the Spanish version of the
sample ballot with the seal of the
Extrinsic evidence such as
the circumstances of the document distribution could be considered in analyzing
whether the document has the tendency to mislead employees into believing that
the Board favors one of the parties to the election. 3-Days Blinds, Inc., 299
An examination of the
physical appearance of the document further supports the conclusion that the
material is not misleading. It is clear
that the sample ballot has been photocopied from a form of a Notice of Election
and the X marking added. Moreover, the
document does not appear “official,“ thus the printed material in the bottom
portion is incomplete and not centered on the page, and markings from the
photocopy machine are evident.
In any event, in this case
the employees could reasonably conclude that the altered and/or defaced sample
ballots were campaign propaganda as these documents omitted the name of the
Employer and contained an excerpt of the same disclaimer language used by the
official Notice of Election that was posted in the various hospital locations.
As noted, the disclaimer specifically advises employees that any marks that are
seen on any sample ballot or on the Notice has been made by someone other the
National Labor Relations Board. It also further advises that the National Labor
Relations Board does not endorse any choice in this election. The excerpt
included in the defaced sample ballot partially included the official
disclaimer. The fact that the language
of the disclaimer is incomplete will reasonably lead the employees to conclude
that the document was not made by the Board.
It is unlikely that once employees saw the altered sample ballot which
had incomplete language in the disclaimer portion would be misled to believe
that it is an official document prepared by the Board. Rather, it is more probable than not, that it
would remind them of the disclaimer language contained in the official Notice
of Election.20
While recognizing the
Board’s ruling in Sofitel, supra, the facts of the instant case are somewhat
different, specifically because the defaced ballot in controversy in this case
partially contains the disclaimer language, which provides sufficient basis to
negate the involvement of the Board in the production of the leaflet. Reaching a different conclusion would require
one to conclude that a government agency, such as the Board, would produce and
distribute a document which from its face is defective and incomplete. I’m unwilling to reach this conclusion.
Rather, I find that under the totality of circumstances in this case, the
eligible employees are more apt to reasonably concluded that the leaflet with
the defaced ballot was originated and distributed by some other persons rather
that the Board. Further, I note that
the nature of the marking appearing in the “Yes” box, which are large, wide and
disproportionate to the printed material on the reproduced sample ballot leave
the observed with the reasonable impression that said marks were added to the
sample ballot and not part of it as originally issued by the government. See Taylor
Cadillac, 310
Consequently, I conclude
that employees were not led to believe that the Board favored the Petitioner in
the election, and recommend that Objection No. 2 be overruled. In reaching this
conclusion, I note that during the period the official notices were posted in
different place of the hospital.22
RECOMMENDATION
Having recommended that the
Employer’s objections be overruled in their entirety it is recommended that the
Board issue the corresponding Certification of Representative to Union Insular
de Trabajadores Industriales Y Construcciones Electricas, Inc. as the exclusive
collective bargaining representative of the employees of the Employer in Units
C and E.23
Dated at
[1] In Units B and D, neither election resulted
in a majority of votes for the Petitioner, and the Regional Director certified
the results of both elections in the absence of objections.
[2] The Employer has excepted to some of the
hearing officer’s credibility findings.
The Board’s established policy is not to overrule a hearing officer’s
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect.
Stretch-Tex Co., 118
[3] Employer Objection 2 concerns both the
defacement of Board election notices, discussed infra, and the Petitioner’s distribution
of an altered sample ballot.
[4] The Board's determination in SDC was premised on its decisions in Midland
National Life Insurance Co., 263
[5] See, e.g., Oak Hill Funeral Home and Memorial Park, 345
[6] In 3-Day Blinds, 299
[7] The revised 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
NATIONAL LABOR RELATIONS BOARD. THE
NATIONAL LABOR RELATIONS BOARD IS AN AGENCY OF THE UNITED STATES GOVERNMENT,
AND DOES NOT ENDORSE ANY CHOICE IN THE ELECTION.
[8] Specifically, the Board stated: "Given the prominence of the bold, large-print
'warning,' we think it extremely unlikely that an employee would overlook the
disclaimer of Board involvement in any markings; in fact, we think an employee
would be at least as likely to see the 'warning' as any marking such as [the
"X" marking in the box indicating a choice for the petitioning union]
in the instant case."
[9] The sample ballot that appears on the middle
panel of the Board's Notice of Election is the official election ballot that
will be used in the particular election at issue. The Board’s regional offices type the names
of the employer(s) and union(s) involved in an election onto the Board’s ballot
form, and then photocopy that official election ballot onto the Notice of
Election.
[10] See, e.g., Sofitel, 343
[11] We have appended to this decision a copy of
the newly revised official election ballot (Appendix A).
[12] In addition, the Board’s neutrality in the
election process will be further reinforced in the minds of the employees as
they cast their ballots in the election, given that the disclaimer language
appears on the official ballot itself.
[13] Given the layout of the new ballot, it is
highly unlikely that an altered sample ballot’s failure to include the new
disclaimer language will be inadvertent.
Therefore, if a party distributes altered sample ballots from which the
disclaimer language has been deleted, we will deem the deletion intentional,
and designed to mislead employees. The
distribution of such altered ballots will be treated as per se objectionable.
[14] See Sofitel,
supra, 343
[15] Consistent with his dissenting opinion in Oak Hill Funeral Home, supra, slip op.
at 5-6, Chairman Battista would find the marked sample ballots here to be
objectionable. The Chairman finds Oak Hill indistinguishable from this
case. In both cases, the ballots were
exact photocopies of a sample Board ballot and contained no extraneous markings
except for the ‘X’ in favor of the petitioning union. Although, in both cases, the documents
containing the marked sample ballots included stray printer markings and a
portion of the standard disclaimer language, there was a reasonable concern
that an employee would believe that the ‘X’ was on the original ballot, and
would be misled into believing that the Board favored a vote for the union.
Accordingly, here, as in Oak Hill, the Chairman would find that the
sample ballots were objectionable.
1 Petitioner withdrew its original request in
its Petition to represent a group of employees which covered the Employer’s
registered nurses (Unit A). The
remaining units, as described in the Stipulated Election Agreements, are:
UNIT B
Included: All
regular full time and part time professional employees including pharmacists,
chaplains, physical therapist, nutritionists, auxiliary service officers,
programmers, quality assurance officers, accountant, teachers, medical
technologist, health educator of CIS project, community specialist social
workers, auditor, health advisor, nuclear medicine technologists, CPR
Instructor and nursing school instructor.
Excluded: All other regular full time, part time and
managerial employees including the classification included in other appropriate
units, physicians, register nurses, supervisors and guards as defined in the
Act.
UNIT C
Included: All regular full time and part time
professional employees including licensed practical nurses (LPN), respiratory
therapy technicians, sterile supply technicians, X-Ray technicians, operating
room technicians, pharmacy assistants, occupational therapy assistants, record
room technicians, magnetic resonance technicians, medical emergency
technicians, cardiovascular technician, orthopedic technician, sonograph
technicians, CT scan technicians, dental assistant, ophthalmic technicians,
doppler technicians, EKG technicians, and mammography technologists.
Excluded: All other regular full time, part time and
managerial employees including the classification included set forth in other
units, physicians, register nurses, supervisors and guards as defined in the
Act.
UNIT D
Included: All regular full time and part time business
office clerical employees including billing clerks, account receivable clerks,
general cashiers, auditors office, material office, accounting office secretaries,
data processing system operator, receptionist, switch board operators,
accounting clerk, sale specialist, registration clerks, sale specialists,
registration clerk and data entry of the processing department.
Excluded: All
other regular full time, part time employees including the classifications set
forth in other appropriate units, physicians, registered nurses, Human
Resources office employees, secretaries to the executive director,
administrator, legal counsel, medical director, and medical faculty supervisors
and guards as defined in the Act.
UNIT E
Included: All regular full time and part time
nonprofessional employees including clerks of the emergency room, operating
room, medical record, admissions, laboratory, skilled nursing, X-Ray, physical
therapy and home care areas, ward clerks, secretaries of the pharmacy, quality
assurance, CT scan and MRI, home care, nutrition, nuclear medicine,
maintenance, hospice, nursing, Ryder Academy, skilled nursing, chaplains,
preventive medicine, laboratory, respiratory therapy, record room, resident
projects, social service and Ryder home department, housekeeping employees,
lunch room and dietary employees, transcribers, seamstress, laundry employees,
cooks, maintenance employees, dental assistance helper, assistant librarian,
warehouse employees, orderlies, data entry employees of home care and materials
department, lunch room, pharmacy and gift shop cashiers, drivers, teacher’s
assistants, record room codification officer plumbers, painters, mechanics and
cabinet markers.
Excluded: All
other regular full time, part time managerial employees including the
classifications set forth in other appropriate units, physicians, registered
nurses, Human Resources office employees, secretaries to the executive
director, administrator, legal counsel, medical director, and medical faculty
supervisors and guards as defined in the Act.
2 While I have
addressed the credibility of specific witnesses with regard to certain matters
more fully herein, the absence of a statement of resolution of a conflict in
specific testimony, or the absence of an analysis of such testimony, does not
mean that such did not occur. See, ABC Specialty Foods, Inc., 234
3 Although the number of challenged ballots reflected in the Revised Tally of Ballots in both Units C and E is 14 challenged ballots, these pertain to the same 14 individuals whose