court remands to Board to determine whether Samoan translation of ballot was so confusing as to require election to be set aside, when 13 of 27 employees in bargaining unit were Samoan
How later courts described this case
- court remands to Board to determine whether Samoan translation of ballot was so confusing as to require election to be set aside, when 13 of 27 employees in bargaining unit were Samoan
- remanding so that the Board could consider whether Samoan instructions on ballot were confusing
- “Whether a corporation possesses a sufficient indicia of control to qualify as a joint employer is essentially a factual issue.”
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
concurring:
I concur in the result reached by the majority but I write separately to make clear my understanding of our holding in Part III C.
The employers made only one claim below regarding the Samoan translation of the sample ballot. They alleged that the translation conveyed the impression that the Board endorsed the Union. In support of this contention, the employers submitted two retranslations from the Samoan. Only one of these, the retranslation prepared by the Samoan employee, appears to support the claim. 1
The Regional Director rejected this challenge to the election on the ground that a perfect translation from English into Samoan was not to be expected, because Samoan does not have the vocabulary necessary to render the technical language of federal labor law. She held that the translation was not so misleading as to prevent employees from making an informed choice in the election.
Translation is not an exact science. When the Board supplies employees with foreign language election notices and ballots, however, the translation must provide those who do not read English with the basic information necessary to an informed choice. See Marriott In-Flite Service Div. of Marriott Corp. v. NLRB, 417 F.2d 563 , 564 (5th Cir. 1969). Contrary to the employers’ assertion here, an exact correspondence between the English version and the translation is neither possible nor necessary.
According to my understanding, we remand this ease to the Board because the Samoan employee’s affidavit, if believed, tends to show that the Samoan ballot suggested Board endorsement of the Union. Since nearly half of the 27 bargaining-unit employees were Samoan, misinformation on this issue might have prevented them from making an informed choice in the election. This issue should not have been resolved by the Board without an evidentiary hearing. At the hearing, the Board should determine whether the translation was so misleading or confusing as to suggest Board endorsement of the Union, and, if so, whether it prevented the employees from understanding the choices available to them.
. The disputed paragraph is quoted by the majority, supra, p. 1362.