State Supply Warehouse Co.

National Labor Relations Board - Board DecisionsOct 2, 1973

206 N.L.R.B. 243 (N.L.R.B. 1973)

STATE SUPPLY WAREHOUSE CO. 243 State Supply Warehouse Company and Tulsa General Drivers, Warehousemen and Helpers , Local 523, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 16-RC-6231 October 2, 1973 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 16 on March 26, 1973, an election by secret ballot was con- ducted on April 19, 1973, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that there were approximately 15 eligible vot- ers and 16 cast ballots, of which 6 were for and 5 against the Petitioner, and 5 were challenged. The challenged ballots were sufficient in number to affect the results of the election. Thereafter, the Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Regional Director caused an investigation of the issues raised by the objections and the challenged ballots. On June 8, 1973, the Regional Director issued a Supplemental Decision and Order in which he over- ruled the Petitioner's objections in their entirety, sus- tained the challenges to four ballots, and overruled the challenge to one ballot. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, filed a timely request for re view of the Regional Director's Supplemental Deci- sion, contending that he erred in overruling the portion of Petitioner's Objection 2 relating to the pres- ence of a "For Sale" sign near the polling area during the election and in overruling the challenge to the ballot of Mary Perry. By telegraphic order dated July 10, 1973,' the Na- tional Labor Relations Board granted Petitioner's re- quest for review only with respect to the above-mentioned portion of Objection 2. Pending consideration of this issue on review, the Board direct- ed the Regional Director to open and count the ballot of Mary Perry and to issue a revised tally of ballots. Thereafter, on July 19, 1973, the Regional Director 1 Thereafter , the Employer filed with the Board a motion to reconsider the grant of review. In view of our decision herein , we hereby deny said motion as lacking in merit. issued and duly served on the parties a revised tally of ballots which showed that 6 votes were cast for, and 6 against, the Petitioner. 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 au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issue under review and makes the following findings: Apparently, prior to February 22, 1973, there were rumors circulating in the plant based on alleged re- marks attributed to Charles Bates, the Employer's president, to the effect that if the Union won the election the Employer would close down the plant. On February 22, 1973, the Employer posted a notice to its employees advising them to disregard any rumors concerning what Bates may or may not have said and stating that only the Employer's manager was author- ized to speak for the Company. On April 18, 1973, the day prior to the election at the Employer's Tulsa, Oklahoma, warehouse, Bates arranged to have a sign painted, purportedly for use at the Employer's Bartlesville, Oklahoma, property, containing the following legend: FOR SALE By Owner Call 583-5708 Tulsa The following morning Bates picked up the sign from the painter and, approximately 1 hour prior to the election, placed it in the shipping department at the Tulsa warehouse, an area near the polling place, where it was seen by most of the employees. The sign was left in the shipping department during the elec- tion and remained there until 3 p.m. that afternoon. During the investigation of the objections, Bates explained that he had brought the sign to the Tulsa warehouse intending to take it to Bartlesville the fol- lowing day, but, as the sign was freshly painted and not thinking of the ramifications involved, he placed it in the shipping department to dry. The Regional Director concluded that the presence of the "For Sale" sign was not objectionable since the Employer "has established a legitimate business rea- son for having the sign painted in the first place and since the sign was used for that specific purpose." We disagree. Accepting the Employer's alleged business justifi- cation concerning the purpose and use of the sign, we 206 NLRB No. 36 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nevertheless conclude that in the circumstances here the mere presence of the sign near polls during the election was 'likely to have affected the election re- sults. Unlike the Regional Director, we do not regard the claimed business justification for the sign to be here controlling, as it does not appear that prior to the election the employees, with one possible exception, were apprised of the asserted justification. Given this circumstance, and the earlier rumors of possible plant closure,2 the employees could reasonably have con- strued the sudden appearance of the "For Sale" sign, contemporaneous with the holding of the election at the Tulsa warehouse, as a warning that the Tulsa warehouse might cease operations if the employees selected the-Union. An election conducted in this at- mosphere cannot be regarded as reflecting the em- ployees' free choice. Accordingly, we sustain the applicable portion of Objection 2 and shall' set aside the election and direct a new one. ORDER 2 Although we do not base this finding on the disputed statements attribut- ed to Bates that the plant would be sold if the Union won the election, it is clear from the notice posted in the plant on February 22 that rumors to that effect had been circulating among the employees It is hereby ordered that the election conducted herein on April 19, 1973, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.]