239 N.L.R.B. 13 (N.L.R.B. 1978)

Building Leasing Corp.

National Labor Relations Board - Board DecisionsOct 16, 1978

239 N.L.R.B. 13 (N.L.R.B. 1978)

BUILDING LEASING CORPORATION Building Leasing Corporation and Service Employees International Union Local No. 96, AFL-CIO, Peti- tioner. Case 17-RC-8532 October 16, 1978 DECISION AND DIRECTION OF SECOND ELECTION By MEMBERS JENKINS. MURPHY. AND TRUESDALE Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the Na- tional Labor Relations Act, as amended, a three- member panel has considered the objection to an election held July 19, 1978,' and the Regional Direc- tor's report recommending disposition of same. The Board has reviewed the record in light of the excep- tions and brief and hereby adopts the Regional Di- rector's findings and recommendations. 2 [Direction of second Election and Excelsior foot- note omitted from publication.] 'The election was conducted pursuant to a Stipulation for (Cerilficatlon Upon Consent Election. The tally was 17 for and 20 against the Petitiner: there were no challenged ballots. 2 The Regional Director's report, in pertinent part, is attached to and incorporated in this Decision as Appendix A Member Murphy again emphasizes that the Board has a responsibilil) to assure the public that its processes remain completely neutral and that no use of these processes shall be sanctioned that will in any was provide partisan advantage. Allied Electric Pridlucts, Inc.. 109 NLRB 1270 (1954). Formco, Inc.. 233 NLRB 61 (1977). See also her dissent in Monmouth Medi- cal Center. 234 NLRB 328 (1978) APPENDIX A Pursuant to paragraph 6 of the Stipulation for Cer- tification Upon Consent Election, and in conformity with the Board's Rules and Regulations, the under- signed, after reasonable notice to all parties to pres- ent relevant evidence, has concluded the investiga- tion of the objections and hereby issues this report thereon. The objections allege the following: 1. The Employer, Building Leasing Corpora- tion, through its officers, agents, and representa- tives including, but not limited to, Joshua D. West did distribute to all bargaining unit em- ployees on or about July 12, 1978, an envelope which contained a letter urging employees to vote "NO" and a second sheet which repro- duced the official secret ballot of the National Labor Relations Board and indicated a "NO" vote. This employer conduct did have the effect of constituting an endorsement by the National Labor Relations Board of a "NO" vote. The letter'. .. is innocuous and does not consti- tute a meritorious basis for an objection. It merely urges the employees to vote "NO" in the election. It is not coercive and does not contain a threat of re- prisal or promise of benefit. Enclosed with the letter, attached as Appendix B, was a reproduction of an official National Labor Re- lations Board secret ballot [omitted from publica- tion]. The Employer added to this two hands point- ing to the "NO" box (one on the right margin of the ballot and one below the ballot), some general in- structions, and the following language: YOUR X IN THIS SQUARE WILL MEAN YOU DO NOT W'ANT A UNION The Board stated in Allied Electric Products, Inc., 109 NLRB 1270 (1954), that it would look with disfa- vor on any attempt to misuse its processes, especially where one of the parties to an election suggests to the voters that one of the choices is endorsed by the Board. More particularly, the Board ruled that it would not permit the Board's official ballot to be reproduced unless it is unaltered and clearly marked "sample" on its face. In cases where the added information is clearly that of the author and not the Board, and the commcnis are outside of the perimeter of the ballot, and the voters are not, therefore, misled by the infor- mation, the Board has found the reproduction to be not objectionable. A.-ssociated Lerner Shops, 207 NLRB 348, 351. In Lerner, the Board also pointed out that the added writing was in longhand, and therefore identifiable as the author's. In the instant case, contrary to Lerner, the author of the added comments is not revealed, the comments are in type similar to that of the ballot itself, and the hands ap- pear to be stamped rather than sketched. In addi- tion, the upper hand intrudes upon the actual dimen- sions of the official Board ballot. .... Where there is no indication who is responsible for the altered bal- lot, the Board has found that there exists the basic objection found in Allied Electric and will set aside the election. Silco, Inc., 231 NLRB 23. The Employer's letter, stating that the attached ballot re- sembles the official one, is not sufficient to identify the author and his comments. The material added to the reproduction of the ballot by the Employer is not distinguishable from the ballot itself and thereby ap- pears to have the Board's approval. The addition of the material is, therefore, a misuse of the Boards pro- cesses and objectionable conduct under Allied Elec- tric. I he letter was altached to the Regional D)lreclor's report It has not been included herein 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, 1I Is RECOMMENDED that the Board find merit to the Petitioner's objection insofar as it concerns the Employer's altered reproduction and mailing of the Board's official ballot and that the election previously held be set aside and a new elec- tion be ordered and held at a time to be set by the Regional Director. 14