356 N.L.R.B. 32 (N.L.R.B. 2010)

The Humane Society for Seattle/King County

National Labor Relations Board - Board DecisionsOct 28, 2010

356 N.L.R.B. 32 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 The Humane Society for Seattle/King County and Animal Control Officers Guild, Petitioner. Case 19–RC–15235 October 28, 2010 DECISION AND DIRECTION BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE The National Labor Relations Board has considered objections to and determinative challenges to an election held September 29, 2009, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 15 for and 14 against the Peti- tioner, with 2 challenged ballots. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the record in light of the ex- ceptions and briefs, and has adopted the hearing officer’s findings and recommendations.1 I. The Employer operates an animal welfare and place- ment center. The Animal Control Officers Guild (the Petitioner or ACOG) seeks to represent certain of the Employer’s advisors, technicians, assistants, coordina- tors, and receptionists. At the time of ACOG’s petition, it represented one bargaining unit of animal control of- ficers, sergeants, veterinary technicians, and adoption counselors employed by another employer, King County Animal Care and Control Shelter (KCACC). After the election was conducted on September 29, 2009,2 the Employer filed objections to the election alleging, inter alia, that ACOG misrepresented to the employees the identity of their prospective bargaining representative. According to those objections, ACOG represented to employees that they were voting for their own, inde- pendent, Seattle Humane Society (SHS) Union. After ACOG petitioned for an election, around August 24, the Employer held an all-staff meeting at which Hu- man Resources (HR) Director Tina Leader spoke. There had been rumors of a possible closing of KCACC, with the possible transfer of animals from KCACC to SHS. At the meeting, employees expressed concern about a KCACC closing and the possibility of KCACC employ- ees claiming jobs at SHS if animals were transferred there, to the detriment of SHS employees. It was well known that ACOG was the representative of the employ- 1 In the absence of exceptions, we adopt, pro forma, the hearing of- ficer’s overruling of the two challenged ballots and Objections 5 and 6. 2 All dates are in 2009. ees at KCACC; in fact, KCACC constituted the only unit represented by ACOG. On August 25, 15–20 SHS employees gathered for the first meeting held to discuss union representation. Em- ployee Traci Garcia, ACOG’s agent and the leader of the organizing campaign, planned the meeting, and invited ACOG’s president, John Diel, to speak. Diel told em- ployees that ACOG was there to guide the employees on how to form and operate their own union. Garcia em- phasized that SHS would be separate from ACOG, that they would have their own SHS union if ACOG was voted in, that ACOG would have no involvement what- soever, and that they would have their own contract and own officers. Employees Maria Tcruz and Ashley Heller seconded Garcia’s statements, saying that SHS would have its own union and that ACOG would not be part of it. ACOG President Diel testified that there were ques- tions about how the SHS employees would be differenti- ated if they became members of ACOG. He assured the SHS employees that they would not necessarily be in the same unit as the animal control officers, that they would form their own executive board, and that ACOG would be there to give assistance and guide them, but would not dictate anything. During the meeting, employee Jennifer Juroch asked Diel whether ACOG would have any part in the SHS union. He replied that for now, if a yes vote went through, SHS would be just piggybacking ACOG until SHS union got established. The minutes from the meeting were distributed by email to employees who provided their email addresses at the meeting, and were also placed in the employee lounge. The minutes confirmed that SHS employees would have their own union separate from ACOG, and stated in relevant part, The KCAC Officers Guild is helping the SHS union petition process by sponsoring our petition with the NLRB and allowing us to use their labor union lawyer pro bono. Once the petition has been submitted the NLRB holds a secret ballot election at the workplace with eligible employees to determine if the union will be voted in at the organization, in this case SHS. When and if the SHS union is voted in we will be a separate independent union, as in separate from the KCAC Of- ficers Guild and not affiliated with any national or in- ternational union organization. The minutes further stated that the SHS union would create its own contract and decide bargaining points. Upon reviewing the minutes at the hearing, ACOG Pres- ident Diel testified that the author probably meant “sepa- rate bargaining unit,” not “separate independent union,” 356 NLRB No. 13 HUMANE SOCIETY FOR SEATTLE/KING COUNTY 33 but admitted that ACOG did not send employees any clarifying correspondence related to the minutes. On either September 10 or 11, the Employer held a de- partmental meeting with employees. Employee Tcruz commented that ACOG was not going to have anything to do with them and that they would be a completely different union. HR Director Leader reiterated that ACOG was the petitioner and that there was a difference between a union having separate units and contracts and a completely separate union. Both employees, Tcruz and Peter Brodkin, adamantly stated, however, that “[w]e are going to be a completely separate union. ACOG will have nothing to do with us.” On September 11, a second union meeting was held with employees. ACOG President Diel and ACOG At- torney Sydney Vinnedge were present, and sample bal- lots were passed around. Diel testified that he explained at the meeting that ACOG would not be getting involved in separate bargaining agreements and units. Diel stated that “[t]he intention of forming their bargaining unit wasn’t to take control of them. It was to assist them in improving their working conditions.” Diel further testi- fied that he said the SHS employees would have their own collective-bargaining agreement separate from ACOG members in the King County employees bargain- ing unit, their own negotiation committee, their own by- laws, and decide on union dues. Consistent with his statements to employees at this meeting, Diel testified at hearing that he did not believe SHS employees would even participate in the election of ACOG officers. The minutes from this meeting were similarly distrib- uted to employees, and stated in part (emphasis in origi- nal): Sydney [ACOG Attorney] says that the most common thing for the anti-union campaign to attack is the peti- tioning union (which would be King County Animal Control Officer’s Guild in our case). This is a mistake. Why? Because we are voting to create our OWN un- ion; which leads to the biggest question of this election. What does King County ACOG have to do with the union election at SHS? King County is representing SHS employees to petition to create a union. They’re representing us by lending us their lawyer (Syd Vinnedge) pro-bono (since SHS employees do not have the funds to hire our own lawyer). We (SHS em- ployees) have the choice of joining the ACOG or creat- ing our own union . . . ACOG is representing SHS em- ployees by allowing us to piggy-back off another union in order to create OUR OWN union. Upon reviewing the minutes at the hearing, Diel again testified that the author “had the terms mixed up,” and used the word “union” where “bargaining unit” was meant. ACOG agent Garcia admitted that she misused the words union and bargaining unit during the cam- paign, but claimed that by the September 11 meeting she had a better understanding of the terms. On September 17, the Employer held an all-staff meet- ing. HR Director Leader presented a poster-sized version of the ballot and read the language on it. Employee Tcruz retorted that the ballot was not right. Employee Brodkin said that what they were voting on was untrue and what Leader was holding was false. Chief Operating Officer David Loewe testified that employee Cindy Briggs said she had called the NLRB and was informed that the ballot wasn’t true and did not represent what they would be voting on. Leader explained that the employ- ees would be voting for representation by ACOG and would have a separate agreement, but that that was dif- ferent from having a separate union. Other employees raised concerns and questions as to what the vote meant and whether the vote was for SHS union or ACOG. On September 23, a final union meeting with employ- ees was held. It is unclear how many employees attended this meeting. President Diel testified that during this meeting he explained that ACOG was the exclusive rep- resentative with separate KCACC and SHS bargaining units. He also discussed how the SHS unit would have to decide their own bylaws, dues and bargaining agreement and would have their own negotiating committee as well as their own executive board to conduct daily business. Employee Brodkin testified that at a meeting with a small group of employees on September 24 or 25, ACOG agent Garcia passed out a document that clarified that ACOG would be the bargaining representative and that a unit consisting only of SHS employees would be created. There is no evidence of who authored the document or whether any other employees received this document. HR Director Leader sent “all-staff” emails on Septem- ber 15, 22, and 24 explaining that the employees would be voting to be represented by ACOG, the petitioning bargaining representative. Leader testified that despite these attempts, no one acknowledged her explanation or believed what was on the sample ballot she held up at the September 17 meeting. On September 25, ACOG agent Garcia responded to Leader’s September 24 email, stating (emphasis in origi- nal): The ACOG is the petitioner but once the vote passes and we are certified, the SHS Union we will be sepa- rate from the ACOG in that we will have our own by- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 laws, elect our own board to represent us and create our own contract. If you look at the current ACOG by- laws it says basically that we are under them so we can utilize their resources since the SHS Union is a new or- ganization and will need assistance in the beginning. The ACOG will not be involved with the [sic] how the SHS Union will operate. On September 27, the Employer’s CEO, Brenda Bar- nette, sent an email to employees asking that they con- sider whether ACOG was the way to make changes at SHS. On September 29, HR Director Leader emailed employees a link to a third-party article regarding “KCACC Guild’s” petition and reasons the Guild would be bad for SHS. The election was conducted on September 29. Fifteen votes were counted for the Petitioner, 14 votes were counted against, and there were 2 challenged ballots.3 The Employer filed 6 objections to the conduct of the election. Objections 1 through 4 alleged that ACOG had made material misrepresentations concerning the mean- ing of a “yes” vote. A hearing on all of the objections and the challenges was held before a hearing officer of the Board. At the hearing, employees Brodkin, Lisa Evans, Tiffany Braitsch, Garcia, and Heller all testified that they knew that they were voting for ACOG as the bargaining repre- sentative. Brodkin stated that he based his belief on the numerous emails and meetings. Employee Jordan Olsen testified that based on the August 25 meeting and discus- sions with other employees, they thought they were go- ing to have their own separate union, apart from ACOG. He testified that given the hearsay regarding what was going on with KCACC, employees did not want to be affiliated with ACOG. Employee Juroch also testified that no one wanted to be under an ACOG union. She explained that those who favored the union found com- fort and assurance believing they could form and operate their own union, and have nothing to do with ACOG. She also testified that those who understood that they would be represented by ACOG, expressed that they did not want to be. The hearing officer recommended sustaining the Em- ployer’s objections, finding that throughout the cam- paign, ACOG agent Garcia repeatedly assured employees they would be represented by an SHS Union and that ACOG would have nothing to do with the SHS Union. Subsequent meetings and minutes, the hearing officer 3 As stated, there are no exceptions to the hearing officer’s recom- mendation to overrule the challenges to those 2 ballots. For purposes of this decision, we will assume that these ballots are votes for ACOG, making the election result 17–14 in ACOG’s favor. found, reinforced Garcia’s statements. The hearing of- ficer further found that the confusion engendered by the meetings and minutes were not dissipated by the Em- ployer or ACOG. Thus, the hearing officer found that at least some employees thought that they were voting for an SHS Union rather than for ACOG. ACOG excepts to the hearing officer’s recommendations to sustain the Employer’s objections.4 We agree with the hearing of- ficer’s recommendations based on those findings, for the reasons set forth below. II. The Board’s fundamental objective in representation cases is to ascertain whether the employees in the voting unit wish to be represented by a particular labor organi- zation or organizations. Achievement of this objective is impossible if, when they cast their ballots, the employees do not know the identity of the organization that they are voting for or against. In this case, there was widespread confusion among the unit employees regarding whether the voting concerned an existing union that represented employees of another employer or a newly organized union representing only the unit employees. This distinc- tion was of critical importance to many unit employees. The confusion, moreover, resulted from statements of the Petitioner and its agents and likely affected the very close election result. The combination of all of the above-described circumstances precludes a finding that a majority of the unit employees selected the Petitioner as their representative. Accordingly, the election must be set aside. The Board has previously set aside elections conducted under circumstances that created serious doubt over whether the employees knew which labor organization their vote addressed. In Pacific Southwest Container, 283 NLRB 79 (1987), the Board set aside an election in which the ballot contained the name of a local union that no longer existed. Prior to the election, as a result of the merger of international unions including the one with which the original petitioner was affiliated, the original petitioner ceased to exist and was included in a much larger local union of the international union that resulted from the merger. The new local union, in addition to be- ing much larger than the original petitioner and covering 4 ACOG argues that the election should be upheld because the Em- ployer has taken actions since the election that would affect laboratory conditions in a rerun election. ACOG has allegedly filed charges against the Employer regarding some of those actions. The postelec- tion allegations in the charges, however, have no bearing on our deci- sion here. Moreover, whether or not ACOG’s charges would affect the scheduling of any second election is appropriately left for the Regional Director to resolve, subject to any party’s right to request review by the Board, consistent with this Decision and Direction. HUMANE SOCIETY FOR SEATTLE/KING COUNTY 35 a much larger geographical jurisdiction, was “governed by entirely different officers, its executive board [was] 10 times larger, and its members [were] subject to a new constitution and bylaws.” Id. at 80. The ballot, however, contained only the name of the original petitioner, not the new local into which it had been subsumed. At least one employee was unaware of the merger when he voted. The Board directed a new election, stating, “[W]e find that the election did not comport with Sec. 9(a) because we cannot ascertain that a majority of the employees intended to designate [the new, merged local] as their collective-bargaining representative.” Id. at 80 fn. 7. In Nevada Security Innovations, 337 NLRB 1108 (2002), on the other hand, a local union affiliated with, but a different labor organization than, the intervenor sent a letter to the unit employees inviting them to in- spect the local’s financial reports and visit the local’s web site, and stating, “[w]e stand ready to represent you and invite you to be a member of the greatest Local Un- ion on the West Coast.” Id. at 1108 (internal quotation marks omitted). One week later, the intervenor sent its own letter to the unit employees urging them to vote for it, without mentioning the local union. Then, a few days later, the employer sent a letter to the unit employees responding to the local union’s letter, stating that the local was not on the ballot and that the intervenor was. The employer’s letter emphasized that the local and the intervenor were different and distinct organizations. The Board’s notice of election clearly listed the intervenor on the sample ballot, and the ballots sent to and marked by the voters clearly identified the intervenor and did not include the local union. Id. After the intervenor prevailed in the election, the em- ployer filed an objection based on the local union’s letter to the unit employees holding itself out as the proposed representative. The Board overruled the objection and certified the intervenor: [W]e conclude that by the time the ballots were cast, employees would not reasonably have been confused over the identity of the labor organization seeking to represent them. Any confusion engendered by [the lo- cal union]’s letter would have been dissipated by the subsequent communications from [the intervenor] and the Employer, as well as by the Board’s Notice of Elec- tion and the official election ballots. Thus, we conclude that the employees knew for which union they were voting, and that their right to select their bargaining representative was not compromised. [Id. at 1109.] In the case before us, we are unable to conclude that the employees knew for which union they were voting. They had been told by responsible officials of ACOG itself that their union, if they voted for union representa- tion, would be separate from ACOG and that ACOG would have no involvement whatsoever. The record es- tablishes that some employees’ belief in ACOG’s repre- sentations was so strong that when the Employer’s HR director stated in a meeting that ACOG was the petition- er, these employees adamantly insisted in opposition that the employees would have a completely separate union and that ACOG would have nothing to do with them. When, at a subsequent meeting, the HR director dis- played the sample ballot bearing ACOG’s name, some employees insisted that the ballot displayed was false. Significantly, the employee confusion reflected in the testimony at the hearing was the result of statements by officers and agents of ACOG itself. Moreover, ACOG stood to benefit from this confusion: the unit employees were outspokenly opposed to having anything to do with the employees of another employer, KCACC, and the collective-bargaining representative of the KCACC em- ployees was ACOG. It is true that both the ballot and the Board’s notice of election clearly identified ACOG as the petitioner, and that an ACOG representative subsequently distributed a document clarifying that ACOG would be the bargaining representative and a separate unit would be created, though the record does not establish to how many em- ployees the clarifying document was distributed. Five employees testified that by the time of the election they knew that they were voting for ACOG as representative. One employee, however, testified that he and other em- ployees still thought that they were going to have their own separate union, apart from ACOG. Because of the strong showing of employee confusion over the identity of the organization seeking representa- tive status and the importance of the identity of the or- ganization to this particular group of voters, because of the closeness of the vote, and because the confusion was created by ACOG’s own conduct, we cannot conclude that a majority of the employees selected ACOG as their representative. See Pacific Southwest Container, 283 NLRB at 80 fn. 7.5 5 Our dissenting colleague argues that this case is governed by Mid- land National Life Insurance Co., 263 NLRB 127 (1982), and not Pa- cific Southwest Container, supra. In the latter decision, however, the Board distinguished between the issue addressed in Midland, whether false statements in campaign propaganda may serve as grounds for setting aside an election, and the question of whether the Board is able to ascertain that a majority of the employees in fact designated a partic- ular union as their representative. 283 NLRB at 80 fn. 7. The latter inquiry, the Board held in Pacific Southwest Container, does not impli- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36 Our dissenting colleague asserts that communications to employees from the Employer and ACOG subsequent to ACOG’s repeated misstatements about the identity of the union would have been sufficient to dissipate the confusion produced by the Petitioner’s statements by the time of the election. The relevant communications in- clude emails from the Employer to employees on Sep- tember 15, 22, and 24, the September 17 all-staff meeting at which the Employer’s HR director displayed a poster- size sample ballot, and union meetings held on Septem- ber 23 and 24 or 25. The dissent argues that on the basis of these communications, reasonable employees would have concluded that ACOG would be their representative if they voted for representation, but they would constitute a separate bargaining unit and a separate, autonomous division within ACOG. Even if reasonable individuals might have reached the conclusions suggested by the dissent, that does not ex- clude the likelihood that a significant number of employ- ees reasonably remained confused about the true nature of the union on the ballot. Indeed, it is clear from the record that confusion in fact persisted among the em- ployees. At the September 17 all-staff meeting, despite the Employer’s September 15 email message and the HR director’s display of an enlarged sample ballot, employ- ees insisted that their vote for representation was for a union separate and independent from ACOG. Whether the later communications relied on by the dissent might have achieved greater success is highly speculative, es- pecially since the record does not reflect that many em- ployees attended the union meetings at which clarifica- tions were offered. The record does show, however, that at least some confusion remained through the election. As described, more than one employee thought at the time of the election that the voting was for or against a union other than ACOG. In those circumstances, we can- not agree that the employer and union communications dissipated the effect of ACOG’s earlier misstatements about the identity of the Petitioner sufficiently for us to conclude that the employees who voted “yes” were vot- ing for representation by ACOG.6 As a result, and con- cate the issue addressed in Midland and the result is not governed by Midland. The dissent also argues that Suburban Newspaper Publications, 230 NLRB 1215 (1977), was overruled by Midland. In reaching our deci- sion today, we do not rely on Suburban Newspaper Publications, and to the extent that the hearing officer relied on it, we do not adopt her re- port. 6 A crucial distinction between this case and Nevada Security Inno- vations, supra, upon which the dissent principally relies for this point, is that the source of the misinformation in that case was a third party, while in this case it was ACOG itself. Setting aside an election based on third-party conduct raises serious issues of fairness. For example, in Phoenix Mechanical, 303 NLRB 888 (1991), the Board declined to set sidering that a change of just two votes would change the election result, we cannot certify the ACOG as the repre- sentative of the employees. DIRECTION It is directed that the Regional Director for Region 19 shall, within 14 days from the date of this Decision and Direction, open and count the ballots of employees Ash- ley Heller and Christy Thomson. The Regional Director shall then serve on the parties a revised tally of ballots, including the count of the ballots named above. If the revised tally shows that the Petitioner received a majority of the valid votes cast, the Regional Director is directed to set aside the election and order a new election, at such time as the Regional Director deems appropriate. If the revised tally shows that the Petitioner did not receive a majority of the valid votes cast, the Regional Director shall issue a certification of results of election. MEMBER BECKER, dissenting. Contrary to my colleagues and the hearing officer, I would overrule the Employer’s Objections 1 through 4 asserting essentially that the Petitioner, Animal Control Officers Guild (ACOG), made misrepresentations to unit employees suggesting that a majority vote in favor of representation would result in the employees being rep- resented by a union consisting only of Humane Society employees. I would overrule the objection for two rea- sons. First, the evidence here establishes “that by the time the ballots were cast, employees would not reasonably have been confused over the identity of the labor organi- zation seeking to represent them.” Nevada Security In- novations, 337 NLRB 1108, 1109 (2002) (holding that subsequent communications dissipated effect of “letter sent to employees by an affiliate of the Intervenor mis- represent[ing] that the affiliate would be appearing on the ballot”). The evidence reveals the following clarifying communications. On September 17, 12 days before the election, the Employer held a meeting of all staff at which its human resources director presented a poster- sized reproduction of the ballot and read it aloud. She explained that the employees would be voting for repre- sentation by ACOG. At the final union organizing meet- ing held on September 23, 6 days before the election, ACOG’s president clarified to employees that ACOG would be the employees’ bargaining representative. The aside an election based on conduct of a third party that might have created confusion about the identity of the petitioner, explaining that it “accords less weight to conduct by a nonparty.” Id. at 888. This was undoubtedly among the “circumstances” considered by the Board in Nevada Security in declining to set aside the election, 337 NLRB at 1109, though it was not specifically articulated. HUMANE SOCIETY FOR SEATTLE/KING COUNTY 37 very next day, the Employer sent an email message to all employees making the same point: that employees would be voting for ACOG as their bargaining representative. Indeed, the Employer had already sent a similar email message to all employees on September 22. On Septem- ber 25, the lead employee union activist reiterated this point at an employee meeting. Further dispelling any doubt was the Board’s notice of election clearly naming ACOG on the sample ballot. Finally, of course, it is un- disputed that the official election ballots marked by every voter plainly stated that employees were voting for ACOG as their bargaining representative. Any confusion engendered earlier in the election cam- paign as to whether employees were voting to create and be represented by their own union rather than to be rep- resented by ACOG was dissipated, as in Nevada Security Innovations, supra, by both the union’s and employer’s subsequent communications as well as by the Board’s notice of election and the official election ballots. Id., 337 NLRB at 1109 (applying objective standard and finding employees not reasonably confused as to which union they were voting for in light of clarification by both parties and official Board documents). Having seen the poster-sized reproduction of the ballot, been told by both the Employer and the Union that they were voting to be represented by ACOG, possibly having read the Board’s election notice, and certainly having read the unambiguous ballot, employee-voters could not reasona- bly have believed that a yes vote would do anything oth- er than designate ACOG as their representative.1 In light of the Union’s clarifications, the Employer’s explanations, and the Board’s official notice and ballot, reasonable employees would have understood the Un- ion’s earlier representations to be what they were— promises that ACOG would grant the unit the greatest possible autonomy. ACOG might well have kept those promises by, for example, creating a separate division for the Humane Society employees, permitting them to elect their own officers, select their own stewards, and negoti- ate their own collective-bargaining agreement. After creating such an autonomous division, ACOG might 1 The testimony of voters cited by my colleagues concerning their subjective understanding of the implications of a yes vote should be discounted. Such testimony may show that individual voters remained confused, but our standard is an objective not a subjective standard, and the evidence here clearly shows that no voters could reasonably have remained confused about what they were voting for. See Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995) (Board applies objective test to determine whether the conduct of a party to an election has the ten- dency to interfere with employees’ free choice). Moreover, the fact that of the six employees who testified, five stated that they understood that they were voting to be represented by ACOG and only one re- mained confused strongly suggests that the remaining confusion was not reasonable under the circumstances that existed here. even have severed the division as an autonomous local, which could have successfully demanded that the Em- ployer continue to recognize it as ACOG’s successor under the standards for finding “substantial continuity” applied in Raymond F. Kravis Center for the Performing Arts2 and similar Board decisions, or even petitioned the Board to amend the original certification to name the new, autonomous organization.3 If a union does not keep such promises and especially if a union never intended to keep such promises, it should suffer the consequences both in bargaining, when it may confront a lack of em- ployee support, and at the polls after the filing of a decer- tification petition. The Board should not and need not police such promises, and certainly not through objec- tions to an election occurring before the promised actions could be taken. Second, I would hold that the alleged misrepresenta- tion at issue here should be evaluated under Midland National Life Insurance, 263 NLRB 127 (1982), and make clear that Suburban Publications, 230 NLRB 1215 (1977), cited by the hearing officer, was overruled by Midland. In Suburban Publications, the Board held in 1977 that an election should be set aside when a union that had filed a petition to jointly represent employees together with a separate union erroneously represented to employees that it would be the sole representative after certification. But 5 years later, in 1982, the Board held in Midland: “we rule today that we will no longer probe into the truth or falsity of the parties’ campaign state- ments, and that we will not set elections aside on the ba- sis of misleading campaign statements.” Id. at 133. The exception to this general rule created in Midland, for forged documents, has no application here. The holding in Midland was based on the entirely appropriate premise that employees are capable of assessing campaign repre- sentations. Id. at 132–133. If anything, that premise is more true here than in ordinary cases of campaign prom- ises and charges, because here the simple fact that a yes vote would result in representation by ACOG was plainly stated on the Board’s official election notice and on the ballot. While the hearing officer observed that the Board de- clined to apply Midland in Nevada Security Innovations, in fact, the Board overruled the objection in the latter case as explained above. Moreover, the Board in Nevada Security Innovations based its decision not to apply Mid- 2 351 NLRB 143, 145, 147–148 (2007) (employer’s bargaining obli- gation remains following merger creating a new local so long as it does not result in changes sufficiently dramatic to alter the union’s identity), enfd. 550 F.3d 1183 (D.C. Cir. 2008). 3 See Board Rules and Regulations Sec. 102.60(b) (labor organiza- tion may file a petition for amendment of certification). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38 land on the holding in Pacific Southwest Container, 283 NLRB 79 (1987), not Suburban Publications. My col- leagues rely exclusively on Pacific Southwest, but Pacif- ic Southwest was not, in fact, a misrepresentation case. Rather, in Pacific Southwest, after the petition was filed, the petitioning union merged with a new, larger labor organization with different officers, constitution, bylaws, and geographic jurisdiction. The resulting problem was thus not a party’s misrepresentation of the effect of the vote, but rather, as explained in Nevada Security Innova- tions, that “the correct, surviving labor organization was not listed on the ballot.” 337 NLRB at 1108. Thus, the Board made clear in Pacific Southwest that the hearing officer had correctly distinguished Midland because it was “not setting aside the election” based on any misrep- resentation. 283 NLRB at 80 fn. 7. Rather, the Board based its holding on the premise “that the correct labor organization must be listed on the ballot.” Id. at 80 and fn. 7. The instant case and the earlier Nevada Security Innovations case are both distinguishable from Pacific Southwest on the simple but fundamental grounds that the Board’s notice of election and election ballots accu- rately stated the choice being presented to employees. The holding in Security Innovations thus in no way sug- gests that misrepresentations concerning the effect of employees’ vote should not be treated under the Midland standard. Because, as explained above, there is no rea- son grounded in policy not to do so, I would apply Mid- land here and dismiss the objections for that reason as well.