Brown Steel Co.Download PDFNational Labor Relations Board - Board DecisionsJul 20, 1977230 N.L.R.B. 990 (N.L.R.B. 1977) Copy Citation 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. 990 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. 991 Copy with citationCopy as parenthetical citation