Brown Steel Co.

National Labor Relations Board - Board Decisions

Jul 20, 1977

230 N.L.R.B. 990 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown Steel Company and Shopmen's Local Union
No. 626 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, Petitioner. Case 9-RC-11248
July 20, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 9 on November 10, 1975, an election was
conducted on December 4, 1975, among certain
employees of the Employer. The tally of ballots
showed that of approximately 37 eligible voters, 37
cast ballots, of which 19 were for, and 17 were
against, the Petitioner. There was one challenged
ballot, a number insufficient to affect the results.
Two timely objections were filed by the Employer on
December 11, 1975. Subsequent thereto, an adminis-
trative investigation was conducted under the direc-
tion of the Regional Director, who, on February 2,
1976, issued his report in which he recommended
that the Board overrule the objections in their
entirety. On May 24, 1976, the Board issued a
Decision and Order Directing Hearing in which it
adopted the Regional Director's recommendation
that Objection 2 be overruled, but directed a hearing
to resolve the issues raised by Objection 1. Thereaf-
ter, on June 25, 1976, a hearing was held before
Hearing Officer Andrew L. Lang and, on November
2, 1976, the Hearing Officer issued his report in
which he recommended that Employer's Objection I
be overruled. Thereafter, the Employer filed timely
exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute an appropriate unit
230 NLRB No. 153
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees
including shipping and receiving employees em-
ployed at the Employer's 753 Marion Road,
Columbus, Ohio, location, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
5. The Board has reviewed the record in light of
the exceptions and brief, and hereby adopts the
Hearing Officer's findings and recommendations,
only to the extent consistent herewith.
Employer Objection I alleges that on or about the
day prior to the election, and unknown to the
Employer, Petitioner threatened those employees
who had signed union authorization cards that, if it
did not win the election, it would disclose to the
Employer the names of all persons who had signed
such cards. It is alleged that this conduct deprived
those employees of their right to make an uncoerced
choice in the election.
Although the Hearing Officer found that the record
substantiated the Employer's allegation that the
threats had been made, he nevertheless recommend-
ed that the objection be overruled. He concluded
that the persons who made the threats were not
agents of Petitioner. He also concluded that the
employees were capable of evaluating the statements
made, and, while it may have been within Petitioner's
power to publicize the names of card signers, the
Employer had made it clear during the preelection
campaign that it would be unlawful to discharge
employees for their union sympathies. Accordingly,
the Hearing Officer recommended overruling this
objection and certifying Petitioner.
Upon the facts as found by the Hearing Officer, we
disagree with his conclusions and find instead that an
atmosphere of confusion and fear existed at the time
of the election sufficient to have made impossible the
uncoerced selection of a bargaining representative.
Accordingly, we shall set aside the election and
direct that a second election be held.
It is clear from the Hearing Officer's report and the
record that employee Billy Lee Stailes was Petition-
er's chief employee organizer. He obtained a number
of authorization cards from Petitioner; obtained
many signatures on the cards; and instructed others
in how to solicit signatures. While soliciting, Stailes
stressed to the employees that the secrecy of their
cards would be protected. In addition, he instructed
other solicitors to make similar guarantees. It is also
clear from the Hearing Officer's report that many
employees signed their cards because of the guaran-
tee of secrecy.
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BROWN STEEL COMPANY
Shortly before the election was held, however,
Stailes and at least one other employee, Wicker, told
employees that a new set of ground rules was in
effect, and that, if Petitioner lost the election, the
names of all those who had signed authorization
cards would be supplied to the Employer and posted
on the bulletin board. According to the Hearing
Officer, Stailes and Wicker indicated that if Petition-
er lost, "everybody was going to suffer, and not just a
few."
The record discloses that the threat to reveal the
employees' names was circulated among a number of
the employees. Its exact intent is unclear, although
we note that employee Wicker indicated that "he
thought everybody that [signed] the cards should be
forced to vote for the union, that they shouldn't
change their mind in any respect."
In recommending that the election should not be
set aside, the Hearing Officer concluded, in part, that
the Employer, by simultaneously posting the follow-
ing notice and a letter similar in content, had
substantially ameliorated the impact of such state-
ments:
NOTICE
SOMEONE HAS STARTED THE RUMOR THAT IF THE
COMPANY WINS, BROWN STEEL WILL FIRE SHOP
EMPLOYEES FOR UNION SYMPATHY OR ACTIVITY.
BROWN STEEL cannot, by law, DO THIS
AND WON'T. FIRST, WE WILL NOT KNOW WHO
VOTED FOR THE UNION. IT IS BY SECRET BALLOT.
Based on our analysis of the chronology of events
and the text of the notice and letter, however, we are
unable to agree with the Hearing Officer that the
Employer had effectively rebutted the statements.
Thus, the notice and letter were posted on November
20, 2 weeks before the election, while the objection-
able conduct occurred during the week before the
election; i.e., after the Employer made the above
documents public. Obviously, therefore, the docu-
ments could not have been intended as a response to
such conduct and we are reluctant to presume that
the message contained therein would have been
' We stress that our conclusion on the statements at issue here is not
based on any intimation that this particular employer would have taken any
illegal action against any card signers if it discovered their names. Rather,
our conclusion is based on the proposition that no threat to reveal the
sufficiently associated in the minds of the employees
with the subsequent threats to disclose the identity of
union supporters to counter the impact of the latter
and make the employees feel as secure from the
threat of possible employer reprisal as before their
threatened loss of anonymity. To the contrary, the
statements of threatened disclosure supplied one of
the elements the Employer indicated in its earlier
posted documents that it would never have; i.e., the
names of those who supported Petitioner.
In all the circumstances, we conclude that the
situation present at the time of the election was one
of sufficient confusion and fear that a fair election
would be impossible. This conclusion is not bot-
tomed on a finding that Stailes and Wicker were
agents of Petitioner. It is bottomed instead on a
conclusion that a number of employees were in-
formed that, if the election turned out in one
particular fashion, their prior-expressed union senti-
ments would be revealed. The Board, itself, is zealous
in guarding not only the secrecy of its election
process, but the names of employees who sign
authorization cards as well. The secrecy of both is
protected wherever possible, and an employee's
name is revealed only when absolutely necessary;
e.g., in certain challenged ballot situations or where
the Board issues a bargaining order based on a
majority card showing.
Here, however, the election was held under the
threat of a wholesale revelation of employee card
signers should Petitioner lose. In such circumstances,
we conclude that the election results do not represent
a free and uncoerced selection of a bargaining
representative, and we therefore set aside the
election. '
ORDER
It is hereby ordered that the election conducted
herein, on December 4, 1975, be, and it hereby is, set
aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
employees' names should have been made as was done here. Member
Murphy notes. in addition, that these threats were taken seriously by the
unit employees.
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