Oak Hill Funeral Home

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 532 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 35
532
Service Corporation International d/b/a Oak Hill Fu-
neral Home and Memorial Park and Laborers’
International Union of North America, AFL–
CIO, Local Union 270, Petitioner and Cemetery
Workers and Greens Attendants Union, Local
265, Service Employees International Union,1
Intervenor. Case 32–RC–5235
August 27, 2005
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections to an election held July 16, 2004, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The revised tally of ballots
shows 23 for the Petitioner, 0 for the Intervenor, and 20
against the participating labor organizations. There was
one challenged ballot, which was insufficient to affect
the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and briefs,2 has adopted the hearing officer’s

1 We have amended the caption to reflect the disaffiliation of the
Service Employees Intervention Union from the AFL–CIO, effective
July 25, 2005.
2 In its brief in support of its exceptions, the Employer asserts that
the record of this proceeding discloses that counsel for one party re-
ferred to counsel for the other party as a “fu__ing slime ball.” The
record also reflects that, when questioned by the hearing officer, the
counsel to whom the record attributed the remark denied making it.
Sec. 102.177 of the Board’s Rules and Regulations addresses, inter
alia, “Misconduct by attorneys and party representatives before the
Agency.” An obligation under that section is as follows:
Any attorney or other representative appearing or practicing before the
Agency shall conform to the standards of . . . professional conduct re-
quired of practitioners before the courts. . . . [Sec. 102.177(a).]
The section then sets forth a disciplinary process which may result in
a formal reprimand, suspension, or disbarment from practice before the
Board.
Conformance to the standards of professional conduct is required of
attorneys or other representatives appearing or practicing before the
Agency in the same manner as is required of counsel appearing before
the courts. Under the American Bar Association Model Rules of Pro-
fessional Conduct, adopted by many states, “[a] lawyer shall not . . .
engage in conduct intended to disrupt a tribunal.” Rule 3.5 (Impartial-
ity and Decorum of the Tribunal). The Model Rules’ annotation ex-
plains that “[r]efraining from abusive or obstreperous conduct is a
corollary of the advocate’s right to speak on behalf of litigants.”
Administrative law judges and hearing officers should be mindful of
the standards of professional conduct mandated under Sec. 102.177 in
conducting proceedings before the Agency. Where counsel engages in
conduct that allegedly violates these standards of professional conduct,
the administrative law judge or a hearing officer should refer the con-
duct for investigation, in accordance with Sec. 102.177(e), to determine
if misconduct occurred and if discipline is warranted. Similarly, any
findings3 and recommendations,4 and finds that a certifi-
cation of representative should be issued.
In Objection 2, the Employer alleges that a marked
sample ballot flyer sent by the Petitioner to the Em-
ployer’s maintenance employees had the tendency to
mislead employees into believing that the Board favored
the Petitioner in the election. The hearing officer rec-
ommended that the Employer’s Objection 2 be overruled
based on his conclusion that the employees would have
understood that the marked sample ballot emanated from
the Petitioner and was merely propaganda. We adopt the
hearing officer’s recommendation, but not his entire ra-
tionale. As discussed below, we find that employees
would not have been misled by the sample ballot flyer at
issue based on the physical appearance of the document
itself, and the totality of the circumstances surrounding
its source and distribution.
I. FACTS
On March 15, 2004,5 the Petitioner, Laborers’ Interna-
tional Union of North America, AFL–CIO, Local 270
(the Union or Local 270), filed a petition for election.

other person, including the Regional Director or the opposing counsel,
may refer conduct for investigation in accordance with that section. In
addition to the procedures set forth in Sec. 102.177(e) for handling
allegations of misconduct, the administrative law judge or hearing
officer has “the authority . . . to admonish or reprimand, after due no-
tice, any person who engages in misconduct at a hearing.” Sec.
102.177(b).
3 The Employer has excepted to some of the hearing officer’s credi-
bility 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 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Employer was
permitted to call to the Board’s attention its recent decisions in Harbor-
side Healthcare, Inc., 343 NLRB 906 (2004), and Sofitel San Francisco
Bay, 343 NLRB 769 (2004). We deny the Employer’s request to file
additional briefs concerning these cases.
4 In Objection 1, the Employer alleges, inter alia, that Superintendent
of Construction Pat Kintzley engaged in objectionable prounion super-
visory conduct. The hearing officer recommended overruling this
portion of Objection 1. We adopt the hearing officer’s recommenda-
tion, but we rely solely on the hearing officer’s credibility determina-
tions, which establish that the supervisory conduct alleged to be objec-
tionable did not occur. We otherwise disavow the hearing officer’s
legal analysis in light of our recent decision in Harborside Healthcare,
supra (Members Liebman and Walsh dissenting), which issued after the
hearing officer’s report and which clarified the circumstances under
which “the prounion activity of a supervisor will be held to constitute
objectionable conduct, such that a new election is warranted.” Id., slip
op. at 1. Member Liebman, who dissented from the majority’s decision
in Harborside, concurs here in the decision to overrule the Employer’s
supervisory taint objection.
In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation that the remaining portions of Objection 1 be
overruled.
5 All dates are 2004 unless otherwise noted.
OAK HILL FUNERAL HOME & MEMORIAL PARK 533
For the next 4 months, the Union sent various flyers con-
taining prounion propaganda, in both Spanish and Eng-
lish, to the homes of the Employer’s maintenance em-
ployees. After the Union received the Excelsior list6 on
July 2, it sent two successive flyers, each containing a
marked sample ballot, to all eligible voters.
The first of these flyers, which is the primary subject
of the Employer’s exceptions, was sent on or about July
5. This flyer is two-sided, one in Spanish, the other in
English, and consists of an off-center photocopy of the
center panel of the Board’s official notice of election.
Located at the top of the flyer is the unit description; at
about the middle of the flyer, the date, time, and place of
the election are listed; and at the bottom half of the flyer
is the sample ballot.7 A handwritten “X” is marked in
the box for Local 270, extending beyond the borders of
the box. While most witnesses testified to receiving the
flyer in a union envelope bearing a union logo, together
with a union business card, the flyer on its face does not
identify its source.
Turning to the Spanish language version of the flyer
(the native language of most of the Employer’s mainte-
nance employees), at the top and bottom of the page
there appears preprinted language that is included on
every official Spanish language version of the Board’s
official notice of election. The Spanish language version
of the flyer, however, does not reproduce the preprinted
language in full; rather, the sentences are truncated and
words that appear in the official notice are missing. For
example, at the top margin, only the words “JUNTA
NATIONAL DE” (“NATIONAL BOARD OF”) are
visible. At the bottom, where the Board’s official notice
disclaims Board involvement in any defacement of the
sample ballot and specifies the Board’s neutrality in the
election process,8 only the following words appear in
full: “Y NO DEBE SER MUTILADO POR NINGUNA
PERSONA . . . A LA JUNTA NATIONAL DE
RELACIONES DE TRABAJO, Y NO . . . DEL
GOBIERNO DE LOS ESTADOS UNIDOS Y NO

6 Excelsior Underwear, 156 NLRB 1236 (1966).
7 A copy of the Spanish language version of the flyer is attached as
an appendix.
8 The Board’s official disclaimer reads as follows: “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.”
ENDOSA A NINGUNA” (“AND MUST NOT BE
DEFACED BY ANYONE . . . THE NATIONAL
LABOR RELATIONS BOARD, AND NOT . . . THE
GOVERNMENT OF THE UNITED STATES DOES
NOT ENDORSE ANY”).9
The week of the election, the Union sent a second
marked sample ballot flyer. The second flyer is also
two-sided, one in Spanish, the other in English, and also
includes a photocopy of the sample ballot section of a
Board election notice. A handwritten “X” is marked in
the box for Local 270, extending beyond the borders of
the box. The second flyer includes various exhortations
to vote for the Union, including, “Votando si por la union
local 270=Ganar un mejor pago, Seguridad en tu trabajo,
Seguro Medico y un Plan de Pension que garantize tu
futuro y el de tu familia” (“Voting yes for the union local
270=Earning better pay, Security in your job, Health
Insurance and a Pension Plan that guarantees your future
and that of your family”). The Employer acknowledges
that the second flyer was clearly identified as Union
propaganda.
In addition to these two flyers, the testimony of both
Employer and union witnesses establishes that the Union
sent somewhere in the range of 20–30 other flyers to the
employees in the months leading up to the election on
July 16.
The Employer also posted the Board’s official notice
of election in prominent places in and around its facility
(i.e., the lunchroom, the main administrative building,
and the maintenance yard). Nothing on these notices was
defaced, including the full language of the Board’s dis-
claimer, because the Employer had the documents lami-
nated. Further, the Employer held meetings with em-
ployees (in the same locations in which it posted the offi-
cial Board notices) in order to, among other things, an-
swer any questions employees had about the materials
they were receiving from the Union. At these meetings,
the Employer reviewed sample ballots with employees.
The hearing officer recommended overruling the Em-
ployer’s objection. The hearing officer found that while
the source of the first marked sample ballot was not
clearly identifiable on its face, it was evident from the
circumstances of the document’s distribution that em-

9 The Employer argues that the Union “redacted” the flyer in a man-
ner that “inverted” the meaning of the Board’s disclaimer to suggest
that the Board endorsed the Union in the election. We find, however,
as did the hearing officer, that the Employer’s translation of the words
that appear on the bottom of the flyer is both inaccurate and incom-
plete. Indeed, contrary to the Employer’s representations, the words
“MUST NOT BE DEFACED BY ANYONE” AND “THE
GOVERNMENT OF THE UNITED STATES DOES NOT ENDORSE
ANY” are consistent with, and not an “inversion” of, the concept of
Board neutrality.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD534
ployees would know that it emanated from the Union and
was merely propaganda. In its exceptions, the Employer
argues, inter alia, that the extrinsic evidence in this case
does not support the hearing officer’s conclusion that
employees would not have been misled by the marked
sample ballot at issue. The Employer asserts that under
the Board’s recent decision in Sofitel San Francisco Bay,
supra, the election should be set aside. We disagree, for
the reasons discussed below.10
II. ANALYSIS
The framework for analysis of altered sample ballot
cases, a two-pronged test, is set forth in SDC Investment,
Inc., 274 NLRB 556 (1985). First, if the source of an
altered sample ballot is clearly identifiable on the face of
the ballot, then the Board will find the distribution of the
document not objectionable because “employees would
know that the document emanated from a party, not the
Board, and thus would not be led to believe that the party
has been endorsed by the Board.” Id. at 557. If, how-
ever, as here, the source of the altered sample ballot at
issue is not clearly identifiable on its face, under the sec-
ond prong of SDC Investment, “it becomes necessary to
examine the nature and contents of the material in order
to determine whether the document has the tendency to
mislead employees into believing that the Board favors
one party’s cause.” Id. In making this determination, the
physical appearance of a document may support the con-
clusion that it is not misleading where the document
would appear to a reasonable employee to be an obvious
photocopy of an official document marked up by a party
as part of its campaign propaganda. See, e.g., Worths
Stores Corp., 281 NLRB 1191, 1193 (1986) (document
found not misleading where “it was clear that the sample
ballot had been cut from another form,” that the printed
material was not centered on the page, and that markings
from a photocopy machine would have led employees to
conclude that the documents were not “official” Board
material).
In 3-Day Blinds, Inc., 299 NLRB 110, 111 (1990), and
the cases cited therein, the Board expanded on the SDC
analysis. In that case, the Board made clear that in exam-
ining the nature and contents of the document at issue, an
inherently fact-based exercise, it will also look to the
extrinsic evidence of the document’s preparation, as well
as the circumstances surrounding the document’s distri-
bution. Id. at fn. 7 (citing cases). While evidence show-
ing that a party distributed the document, without more,
will not establish that the party prepared the document, it

10 Member Liebman did not participate in Sofitel. However, she
agrees with Member Schaumber that, for the reasons set forth infra,
Sofitel is distinguishable from this case.
is relevant extrinsic evidence to be viewed in the totality
of the circumstances of the document’s distribution. Id.
at 112. Likewise, evidence of the proper posting of the
Board’s official notice of election with its language that
disavows the Board’s role in any defacement and speci-
fies the Board’s neutrality in the election process will
not, without more, be dispositive in cases involving a
separate distribution of marked sample ballots.11 Sofitel,
supra, slip op. at 3. However, as the court stated in VIP
Health Care Services v. NLRB, 82 F.3d 1122, 1130 (D.C.
Cir. 1996), it is reasonable to rely on this evidence to
bolster the determination that the sample ballot satisfies
the SDC Investment analysis.
As in the cases cited above, the two-pronged SDC In-
vestment standard should be applied to the marked sam-
ple ballot at issue in this case. We agree with the hearing
officer that under the first prong of the inquiry, nothing
on the face of the sample ballot clearly identified the
Union as the organization responsible for preparing the
document. We also agree, however, that under the sec-
ond prong of the inquiry, a reasonable employee would
know, based on both the physical appearance of the
document and the extrinsic evidence of its source and
distribution, that this sample ballot emanated from the
Union and was merely propaganda.
With respect to the physical appearance of the docu-
ment itself, as in Worths Stores, supra, it is apparent that
the flyer at issue here is an off-center photocopy of a
portion of another document. In addition, the partial
reproduction of the Board’s disclaimer at the bottom of
the page, coupled with the partial phrases and words that
appear at the top and the bottom of the document, would
tend to lead an employee to conclude that the flyer is not
“official” Board material. Moreover, while certainly not
dispositive, the partial reproduction of the Board’s dis-
claimer that was included in the flyer, “Y NO DEBE
SER MUTILADO POR NINGUNA PERSONA . . . A
LA JUNTA NATIONAL DE RELACIONES DE
TRABAJO, Y NO . . . DEL GOBIERNO DE LOS
ESTADOS UNIDOS Y NO ENDOSA A NINGUNA”
(“AND MUST NOT BE DEFACED BY ANYONE . . .
THE NATIONAL LABOR RELATIONS BOARD,
AND NOT . . . THE GOVERNMENT OF THE
UNITED STATES DOES NOT ENDORSE ANY”)
would tend to reinforce the impression of the Board’s
neutrality in elections.
Furthermore, extrinsic evidence of the document’s
source and distribution beyond the four corners of the

11 By contrast, in cases involving the defacement of the Board’s offi-
cial notice of election, the disclaimer language precludes a reasonable
impression that the Board endorses any choice in the election. Brook-
ville Healthcare Center, 312 NLRB 594 (1993).
OAK HILL FUNERAL HOME & MEMORIAL PARK 535
document itself supports the conclusion that a reasonable
employee would not have been misled into believing that
the Board endorsed the Union in the election. For exam-
ple, it is undisputed that the marked sample ballot flyer at
issue was one of a great many mailings that employees
received from the Union during the critical period. In-
deed, the evidence showed that employees received this
marked ballot in the context of having received numer-
ous mailings of union propaganda in the months and
weeks leading up to the election, including a second
marked sample ballot flyer that the Employer concedes
was properly identified union campaign literature. In
addition, the preponderance of the evidence shows not
only that the flyer at issue was mailed in a union enve-
lope, but also that the mailing included a union business
card.12 Thus, while the union envelope standing alone is
by no means dispositive of the source of the sample bal-
lot, the union envelope, taken together with the union
business card, and when viewed in context of the numer-
ous union mailings sent to employees during the critical
period, provides relevant extrinsic evidence of the docu-
ment’s distribution. 3-Day Blinds, supra.
The Employer relies on Sofitel San Francisco Bay, 343
NLRB 769 (2004), to argue that the marked sample bal-
lot flyer sent to employees would tend to mislead em-
ployees and thus the election should be set aside. In
Sofitel, the Board sustained the employer’s objection and
set aside the election based on its finding that the marked
sample ballot had a tendency to mislead employees into
believing the Board endorsed the Union in the election.
We find, contrary to the Employer’s contentions, that
Sofitel is factually distinguishable. First and foremost, in
Sofitel, there were no words or markings on the docu-
ment at issue that indicated that it was a photocopy of a
portion of another document. Here, in contrast, the flyer
at issue is off-center, it contains stray marks that are
characteristic of photocopied documents, and the top and
bottom of the flyer contain incomplete, truncated por-
tions of words. Therefore, the flyer’s appearance would
lead employees to believe that it is not official Board
material. Rather, employees would recognize the flyer as
a photocopy of the middle page of the Board’s election

12 Six employee witnesses (two by stipulation) testified that they re-
ceived the marked sample ballot inside a union envelope bearing the
Union’s return address and logo, and that a business card from the
union organizer was also enclosed in the envelope. One employee
called by the Employer, George Wanda, testified that he received the
marked sample ballot that identified the Union as the sender, but was
unsure if a business card was enclosed. Another employee called by
the Employer, Jose Ruiz, testified that he received the marked sample
ballot in an envelope that did not identify the Union as the sender;
however, Ruiz acknowledged that this mailing came in the context of
several other mailings by the Union.
notice—the same official notice that was laminated and
posted prominently in locations where the Employer held
meetings to review sample ballots with employees.
Similar to the photocopied document in Worth Stores,
supra, 281 NLRB at 1193, the flyer here is not mislead-
ing, as it is “clear that the sample ballot had been cut
from another form.”
Second, the document in Sofitel contained no part
whatsoever of the Board’s disclaimer language and there
was no evidence that employees had ever seen, much less
discussed with the employer, any sample ballots that
contained the Board’s disclaimer language. Here, con-
versely, the flyer at issue contained a partial reproduction
of the disclaimer, and the notice with full disclaimer lan-
guage was prominently displayed in locations around the
facility where the Employer also held meetings with Em-
ployees to discuss, inter alia, the sample ballots. See
Hospital General Menonita v. NLRB, 393 F.3d 263, 269
(1st Cir. 2004) (Board’s conclusion that employees
would not have been misled by marked sample ballot in
favor of union “strengthened” by employees’ exposure to
Board’s disclaimer language) (citing VIP Health Care
Services v. NLRB, 82 F.3d 1122, 1128–1129 (1996), and
Comcast Cablevision, Inc., 325 NLRB 833, 833 (1998)).
Third, in Sofitel, extrinsic evidence of the document’s
source and distribution was limited to the union envelope
it came in. Indeed, the evidence showed that the solitary
piece of alleged union propaganda distributed to employ-
ees before the election was the marked sample ballot at
issue, and the union actually disclaimed responsibility for
sending even that document. In this case, however, not
only was the flyer at issue sent in a union envelope with
a union business card, but the Union also sent 20–30
additional flyers in the same manner, including a sample
ballot containing a concededly partisan slogan and mes-
sage. Thus, employees would likely perceive the photo-
copied sample ballot at issue as the same type of cam-
paign propaganda.
To be clear, none of the extrinsic evidence in the pre-
sent case, standing alone, is necessarily dispositive of the
issue of whether the marked sample ballot flyer would
have had the tendency to mislead employees. Nonethe-
less, the totality of circumstances—the physical appear-
ance of the document, coupled with the extrinsic evi-
dence of the document’s source and distribution—
certainly supports the hearing officer’s conclusion that
employees would not have reasonably assumed that the
marked sample ballot flyer emanated from the Board.13

13 In an appropriate case, Member Schaumber would consider the
type of bright-line rule advocated by former Chairman Hurtgen in
Dakota Premium Foods, 335 NLRB 228, 228–229 (2001) (Chairman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD536
We certainly agree with our dissenting colleague that the
Board’s neutrality is essential to the integrity of the elec-
tion process. However, we find that the totality of the
circumstances in this case establishes that the Board’s
neutrality has not been reasonably called into question.
Based on our careful review of all the facts, we adhere to
another well-established principle that also reflects on
the integrity of the election process: “Representation
elections are not lightly set aside.” See, e.g., Delta
Brands, Inc., 344 NLRB No. 10, slip op. at 2 (2005).
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Laborers’ International Union of North
America, AFL–CIO, Local Union 270, and that it is the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and part-time cemetery grounds and main-
tenance employees, including all equipment operators,
construction, landscape and gardening, shop, and vehi-
cle repair employees, leadpersons, foremen and jani-
tors, employed by the Employer at its San Jose, Cali-
fornia facility, excluding all managerial and administra-
tive employees, salespersons, office clerical employees,
bereavement employees, all other employees, guards
and supervisors as defined in the Act.
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I conclude that the nature
and contents of the material (the marked ballot) had the
tendency to mislead the employees into believing that the
Board favored a vote for the Union. I would therefore
sustain the Employer’s objection and order a second
election.
Approximately 3 weeks before the election, the Union
mailed to all employees a copy of the center panel of the
Board’s notice of election, which contained a sample
ballot and part of the Board’s standard disclaimer. The
document is attached hereto.1 The document and a union
business card were mailed to all voting employees in an
envelope bearing the Union’s logo and return address.
As can be seen from the attachment, the document
contains an exact photocopy of a part of a sample Board
ballot, with the exception that the “X” is marked in favor
of the Laborers’ Union. Given the fact that the ballot is
an exact photocopy of an original, there is a reasonable
concern that an employee would believe that the “X” was

Hurtgen, dissenting), which would require a clear disclaimer on the
face of any altered sample ballot. Sofitel, supra, slip op. at 4 fn. 4.
1 As discussed below, I find that the marked ballot is objectionable.
The term “document,” as used herein, refers to the entire attached
document, of which the marked ballot is a part.
also on the original. In these circumstances, and in order
to preserve the perception and reality of Board neutrality,
I would order a second election.
As noted by my colleagues, in assessing the propensity
of a marked sample ballot to mislead employees into
believing that the Board supports one choice over an-
other, the Board first looks to whether the source of the
altered sample ballot is clearly identifiable on the face of
the ballot. If nothing appears on the face of the ballot
identifying the party who prepared it, the Board then
looks to whether the ballot “has the tendency to mislead
employees into believing that the Board favors one
party’s cause.” SDC Investment, Inc., 274 NLRB 556
(1985).
My colleagues concede that the sample ballot at issue
fails to identify the Union, or indeed any party, as its
source. Therefore, we must determine from the sur-
rounding circumstances whether the employees reasona-
bly would be misled into believing that the Board favors
one party’s cause. Applying Sofitel San Francisco, 343
NLRB 769 (2004), I find that the ballot would tend to
mislead employees to believe that the Board was in favor
of the Union.
Sofitel, supra, involved a similar situation. The Board
held that the marked sample ballot there had a tendency
to mislead employees to believe that the Board favored
one of the unions. My colleagues’ effort to distinguish
Sofitel is unsuccessful. They say that, in Sofitel, there
were no words or markings on the ballot that would indi-
cate that it was “necessarily” a photocopy of a Board
ballot. However, that is not the issue. The issue is
whether an employee would reasonably believe (not nec-
essarily believe) that the ballot is a photocopy of a Board
ballot. In the instant case, it is precisely the absence of
extraneous markings (except for the offensive “X”)
which suggests that this ballot is a photocopy of a Board
ballot. Anyone familiar with Board ballots can look at
the attachment and see that the ballot is such a photo-
copy.
Similarly, my colleagues say that, in Sofitel, there was
no partial disclaimer at the bottom of the document. But,
it is precisely that partial disclaimer here which shows
that the document is a partial photocopy of an official
Board document.
My colleagues say that the document contains stray
marks that are characteristic of a photocopied document.
(By this, they apparently mean the vertical dots on the
left side of the document.) I agree. Thus, an employee
would reasonably conclude that the marks were not on
the original. However, the same cannot be said about the
“X” in the box favoring the Laborers. It would be rea-
OAK HILL FUNERAL HOME & MEMORIAL PARK 537
sonable for an employee to conclude that this photocop-
ied “X” was in the original.
I recognize that the posted notice does not contain the
“X” and it contains a full disclaimer. However, although
part of the Board’s standard disclaimer language appears
on the sample ballot, that portion does not clearly com-
municate to employees that the Board does not support
one party over another.
The cases relied upon by my colleagues are distin-
guishable. In each of them, the document itself con-
tained language that made it clear that the document was
union propaganda. Thus, for example, in Worths, 281
NLRB 1191, 1193, the document itself contained con-
gratulatory headings and individualized salutations.
Concededly, the document was mailed in a union en-
velope, and the envelope contained a union business
card. However, as my colleagues note, evidence show-
ing that a party distributed a document does not itself
establish that the party prepared the document. My col-
leagues also correctly observe that the Board’s official
notice (disavowing any defacements and proclaiming the
Board’s neutrality) is not dispositive as to objections that
are based upon the separate distribution of a marked
sample ballot. In addition, the official notice was posted
approximately 2 weeks after the unidentified sample bal-
lot was mailed to employees. Therefore, contrary to my
colleagues, I do not believe that the Employer’s subse-
quent posting of the official notice made the ballot ac-
ceptable under SDC Investments.
It is axiomatic that the election process is at the heart
of the Act, and that the Board’s neutrality (actual and
perceived) is essential to the integrity of that process. I
would not tolerate conduct which undermines those sac-
rosanct values. Accordingly, I would set this election
aside.2

2 I recognize that the Union subsequently sent a second flyer which
contained prounion propaganda as well as other mailings containing
prounion materials. However, these mailings do not cure the vice of
the first flyer. Indeed, a reasonable employee would conclude that the
first flyer was a photocopy of a Board document and the second flyer
was a photocopy of a union document.
APPENDIX