York Furniture Corp.

National Labor Relations Board - Board Decisions

Apr 16, 1968

170 N.L.R.B. 1487 (N.L.R.B. 1968)

YORK FURNITURE CORP.
York Furniture Corp. and Imperial Frame Corpora-
tion and Upholsterers' International Union of
North America, Local 300, AFL-CIO, Petitioner.
Case 12-RC-2890
April 16, 1968
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 18, 1968, the Regional Director for
Region 12 issued a Supplemental Decision, Order,
and Direction of Second Election in the above-enti-
tled proceeding, wherein he sustained Petitioner's
objection no. 4 and on that basis set aside the elec-
tion.' All other objections filed by the Petitioner
had been previously withdrawn. Thereafter, the
Employer filed its "exceptions and supporting
brief," which the Board treated as a request for
review of the Regional Director's Supplemental
Decision, asserting that he erred in sustaining ob-
jection no. 4. The Employer subsequently filed a
letter supplementing its request.
On February 9, 1968, the National Labor Rela-
tions Board by telegraphic order granted the
request for review. Thereafter, the Petitioner filed a
brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in
this case with respect to the issues under review, in-
cluding the briefs, and makes the following
findings:
Objection no. 4 alleged that the Employer made
material and substantial misrepresentation which
the Petitioner had inadequate opportunity to cor-
rect prior to the election.
The election was scheduled for November 17,
1967, between the hours of 3:30 and 4:30 p.m. The
Regional Director's investigation revealed that, at
the end of the workday on November 13, the Em-
ployer mailed to each employee a letter in both En-
glish and Spanish, the second paragraph of which
read:
You do not have to believe me. Ask the
union agents if they are interested in your wel-
fare if they cannot collect dues from you. I un-
' A corrected tally of ballots showed that of approximately 64 eligible
voters, 63 cast ballots , of which 29 were for, and 26 against , the Petitioner,
and 8 were challenged . During the course of the investigation , the Peti-
tioner requested permission to withdraw its challenges as to seven of the
1487
derstand that the union is now collecting $5.00
a month dues from employees at other compa-
nies, but that the-dues are soon to be raised to
$7.50 a month. You should understand that
when union dues are paid, it is -deducted from
what you -work for-the company is not al-
lowed by- law to pay your dues for you.
[Emphasis supplied.]
The Petitioner stated, in support of its objection,
that dues are not being raised and that the letter is
in this regard untrue. The Employer stated that he
received the information concerning the Peti-
tioner's dues from another employer. The other
employer, the brother of the Employer's president,
informed the Board investigator that he had
acquired the information about the Petitioner's
dues from some of his employees, whom he chose
not to identify.
The Regional Director concluded that the state-
ment in the letter with respect to an increase in
dues constitutes a misrepresentation, whether
deliberate or not, and that such misrepresentation
was "a matter of utmost concern to voting em-
ployees, and therefore one which may reasonably
be expected to have a significant impact on the
election." The Petitioner stated that it did not see a
copy of the letter until about 1 p.m. on November
16, the afternoon before the election, and did not
then have time to prepare a reply in both Spanish
and English which could possibly reach the em-
ployees before the election. The Regional Director
agreed with the Petitioner that under the circum-
stances it did not have a reasonable period of time
in which to try to refute a last minute material
misrepresentation. Accordingly, he sustained the
objection and set the election aside. The Employer
contends that the statement, even if untrue, does
not warrant setting aside the election. We agree.
We regard the statement in issue as one based
not on the Employer's own knowledge but rather
on hearsay. Whether or not a dues increase was in
the offing was a matter within the knowledge of the
Petitioner, and it is reasonable to suppose that, be-
fore accepting as fact the Employer's second-hand
account, the employees would have inquired of the
Petitioner itself as to the matter. Indeed, inasmuch
as the Employer's letter was mailed 4 days before
the election, it is clear that employees had ample
opportunity to make inquiry of the Petitioner. For
these reasons , we conclude that the employees
ballots which the Board agent had ruled were valid "NO" votes. The Re-
gional Director granted the withdrawal request. He also sustained the
remaining challenge.
170 NLRB No. 169
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could reasonably evaluate the statement as to a
planned dues increase as campaign propaganda and
that its impact was not such as would warrant
setting aside the election, under the principles set
forth in Hollywood Ceramics Company, Inc., 140
NLRB 221. Objection no. 4 is therefore overruled.
Accordingly, as the Petitioner has failed to
secure a majority of the valid votes cast, we shall
certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots has not been cast for Upholsterers' Interna-
tional Union of North America, Local 300,
AFL-CIO, and that said organization is not the ex-
clusive representative of all the employees in the
unit herein involved, within the meaning of Section
9(a) of the National Labor Relations Act, as
amended.