Durham School Services, LP, 15-RC-096096

CourtNational Labor Relations Board
Writing for the CourtMark Gaston Pearce, Chairman
Citation360 NLRB No. 108
PartiesDURHAM SCHOOL SERVICES, LP AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 991
Decision Date09 May 2014
Docket Number15-RC-096096

360 NLRB No. 108

DURHAM SCHOOL SERVICES, LP AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 991

No. 15-RC-096096

United States of America, National Labor Relations Board

May 9, 2014


DECISION AND CERTIFICATION OF REPRESENTATIVE

Mark Gaston Pearce, Chairman

The National Labor Relations Board, by a three-member panel, has considered objections to an election held on February 22, 2013, and the Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 112 for and 74 against the Petitioner, with 4 nondeterminative challenged ballots. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the Regional Director's findings and recommendations, and finds that a certification of representative should be issued.[1]

The Employer filed several objections to the election, and now excepts to the Regional Director's decision to overrule its objections without a hearing. “ The burden is on the objecting party to present evidence that raises substantial and material factual issues” under controlling law, i.e., to “ establish[ ] a prima facie case in support of its objections.” Park Chevrolet-Geo, Inc., 308 N.L.R.B. 1010, 1010 fn. 1 (1992), citing Board's Rules and Regulations, Section 102.69. We conclude that the Regional Director did not err here. Below we briefly explain our reasons for affirming the Regional Director's decision as to two of the Employer's objections.

I.

The Employer's Objection 1 alleged that the Union deceived voters by distributing a campaign flyer that contained pictures of eligible voters and statements misrepresenting their intent to vote for the Union. The Regional Director overruled this objection, finding that the Employer's evidence did not raise a substantial and material factual issue under Midland National Life Insurance Co., 263 N.L.R.B. 127 (1982). We agree.

A.

In cases of alleged campaign misrepresentations, the Board applies the longstanding Midland standard under which it will not probe into the truth or falsity of the parties' campaign statements and will not set aside an election on the basis of misleading statements unless “ a party has used forged documents which render the voters unable to recognize propaganda for what it is.” Midland, 263 N.L.R.B. at 133. The Midland standard is premised on a “ view of employees as mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.” Id. at 132, quoting Shopping Kart Food Market, Inc., 228 N.L.R.B. 1311, 1313 (1977). Midland adopts a “ clear, realistic rule of easy application which lends itself to definite, predictable, and speedy results” and “ removes impediments to free speech by permitting parties to speak without fear that inadvertent errors will provide the basis for endless delay or overturned elections . . . .” Id. The Eleventh Circuit affirmed the validity of the Midland rule shortly after its inception, and it has since become well established in the majority of courts of appeals.[2]

It is well established that the Midland standard applies where unions circulate campaign literature that identifies individual employees as union supporters, as well as attributing pro-union statements to them or representing that they intend to vote for the union. See, e.g., Somerset Valley Rehabilitation & Nursing Center, 357 N.L.R.B. No. 71 (2011); BFI Waste Services, 343 N.L.R.B. 254 (2004); Champaign Residential Services, 325 N.L.R.B. 687 (1998). As the Board has explained when uniformly rejecting election objections based on such literature, employees can “ easily identify [it] as campaign propaganda.” Somerset Valley, supra, 357 N.L.R.B. No. 71, slip op. at 1.[3] We have no difficulty in reaching the same conclusion in the present case.

B.

The day before the election, the Union circulated a flyer, clearly identified as a union document, that included names and pictures of eligible voters, captioned by the statements: “ On February 22, 2013 WE' RE VOTING YES For Teamsters Local Union 991! We are voting ‘ Teamsters YES!' for a better future at Durham!” The Employer's objection relies primarily on an affidavit of employee April Perez stating that she did not intend to vote for the Union and did not authorize the Union to attribute any quotation to her.

Perez admits, however, that she voluntarily signed, but claims not to have read, a document provided by the Union (entitled “ Release Form, ” with a Teamsters logo and name) containing the following preprinted statement: “ I hereby give permission to the International Brotherhood of Teamsters to use my likeness and name in Teamster publications.” That document includes a preprinted statement reciting “ I support forming a union with the Teamsters because . .., ” followed by, in handwriting, “ I want fairness.” [4] The record also contains two additional petitions (bearing the Teamsters logo and name at the bottom). Perez added her name to each, in a column containing the names of others, all under the preprinted statement, “ Yes” (in 2-inch letters), then (in large font) “ I' m voting to have a voice in our working standards at Durham by voting for Teamster representation on February 22.”

On these facts, we agree with the Regional Director that the evidence fails to establish that the Union misrepresented the sentiments of Perez. The initial document bearing Perez' signature was a valid release to use her picture in campaign literature, and this document, standing alone, gave the Union sufficient reason to believe it had Perez' support. In addition, documentary evidence indicated that Perez added her name to two petitions containing other signatures, which proclaimed support for the Union. There is no basis to conclude, as a factual matter, that the Union engaged in any misrepresentation.

But, even assuming, as the Employer claims, that Perez did not in fact support the Union and did not write “ I want fairness” on the initial document, we would still affirm the Regional Director's decision to overrule Objection 1 without a hearing, under the Midland standard. There is no claim (much less evidence) of forgery here. Nor is there any dispute that the Union's flyer was easily recognizable as campaign propaganda. At most, then, the Employer's evidence suggests a possible misrepresentation of an employee's sentiments which, under Midland, provides no basis for setting aside the election. Thus, there was no need for a hearing much less grounds to warrant setting aside the election, which we note the Union won by a considerable margin.[5] We would reach the same result even applying the Sixth Circuit's Van Dorn standard, see fn. 2, supra: the Union engaged in no “ pervasive” misrepresentation or “ artful” deception of employees.

C.

Our dissenting colleague proposes that the Board adopt an entirely new rule to apply in cases like this one, by holding that “ a party engages in objectionable conduct when it publicizes how specific, named employees intend to vote unless the party obtained express consent from those employees to disclose how they intended to vote.” Neither rationale offered for this new rule persuades us to depart from established law.[6]

First, our colleague--citing prior dissenting opinions--contends that campaign flyers that misrepresent employee sentiment “ may improperly affect an election.” This contention, of course, runs squarely against the time-tested premise of the Midland rule: that employees can recognize campaign propaganda for what it is.

Second, our colleague insists that accurately revealing an employee's expressed voting intentions, absent the employee's express consent, violates the principle of ballot secrecy. That claim is mistaken. If ballot secrecy were genuinely implicated, then even an employee's express consent to disclose her voting intentions would be insufficient to authorize publication of an employee's intended vote.[7] More significantly, whatever an employee may tell a union about how she intends to vote, and however a union may publicize that disclosure, the fact remains that the employee's actual vote will be secret. See Somerset Valley, supra, 357 N.L.R.B. No. 71, slip op. at 2fn. 5 (citing ballot secrecy in rejecting argument that employees whose names and pictures appeared in flyer would feel compelled to support union). The Board has consistently focused on protecting ballot secrecy during the voting process.[8] When the employee enters the voting booth, whether she votes against the union--either because she changed her mind or because she misled the union originally--or for the union, her vote is known only to her. There is no basis, then, for imposing precisely the sort of restriction on free campaign speech that the Midland Board rejected.

II.

The Employer's Objection 2 alleged that the Board agent handling the election compromised the integrity of the election in various ways when the agent carried the election booth and the ballot box to the Employer's parking lot in order to permit a disabled employee to cast a ballot. In overruling this objection, the Regional Director stated at...

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6 practice notes
  • Novelis Corp., 03-CA-121293
    • United States
    • National Labor Relations Board
    • 26 août 2016
    ...“a party has used forged documents which render the voters unable to recognize propaganda for what it is.” Durham School. Services, 360 NLRB No. 108 (2014) (quoting Midland National Life Insurance Co., 263 NLRB 127, 133 (1983)). The standard of review is premised on a “view of employees as ......
  • Durham School Services, L.P., 15-CA-106217
    • United States
    • National Labor Relations Board
    • 26 août 2016
    ...to conduct affecting the election. In May 2014, the Board overruled those objections without a hearing. Durham School Services, LP, 360 NLRB No. 108 (2014). (I dissented in part and would have remanded for a hearing on one of the objections. Id., slip op. at 3-5.) In July 2014, the Responde......
  • Kaiser Foundation Hospitals and California Nurses Association (CNA), 20-RC-188438
    • United States
    • National Labor Relations Board
    • 17 mai 2017
    ...campaign literature), later proceeding 361 NLRB No. 63 (2014), enfd. 631 Fed.Appx. 127 (4th Cir. 2015). Cf. Durham School Services, 360 NLRB No. 108 (2014) (Member Miscimarra, dissenting) (involving whether union engages in objectionable conduct by disclosing employees' intended votes witho......
  • Pulau Corp., 31-RC-153856
    • United States
    • National Labor Relations Board
    • 16 septembre 2015
    ...that there is evidence that “raises a reasonable doubt as to the fairness and validity of the election.” Durham School Serv[ice]s, LP, 360 NLRB No. 108, slip op. at 4 (May 9, 2014), citing Polymers, Inc., 174 N.L.R.B. 282, 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S.......
  • Request a trial to view additional results
6 cases
  • Novelis Corp., 03-CA-121293
    • United States
    • National Labor Relations Board
    • 26 août 2016
    ...“a party has used forged documents which render the voters unable to recognize propaganda for what it is.” Durham School. Services, 360 NLRB No. 108 (2014) (quoting Midland National Life Insurance Co., 263 NLRB 127, 133 (1983)). The standard of review is premised on a “view of employees as ......
  • Durham School Services, L.P., 15-CA-106217
    • United States
    • National Labor Relations Board
    • 26 août 2016
    ...to conduct affecting the election. In May 2014, the Board overruled those objections without a hearing. Durham School Services, LP, 360 NLRB No. 108 (2014). (I dissented in part and would have remanded for a hearing on one of the objections. Id., slip op. at 3-5.) In July 2014, the Responde......
  • Kaiser Foundation Hospitals and California Nurses Association (CNA), 20-RC-188438
    • United States
    • National Labor Relations Board
    • 17 mai 2017
    ...campaign literature), later proceeding 361 NLRB No. 63 (2014), enfd. 631 Fed.Appx. 127 (4th Cir. 2015). Cf. Durham School Services, 360 NLRB No. 108 (2014) (Member Miscimarra, dissenting) (involving whether union engages in objectionable conduct by disclosing employees' intended votes witho......
  • Pulau Corp., 31-RC-153856
    • United States
    • National Labor Relations Board
    • 16 septembre 2015
    ...that there is evidence that “raises a reasonable doubt as to the fairness and validity of the election.” Durham School Serv[ice]s, LP, 360 NLRB No. 108, slip op. at 4 (May 9, 2014), citing Polymers, Inc., 174 N.L.R.B. 282, 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S.......
  • Request a trial to view additional results

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