Carol Cable Co.

National Labor Relations Board - Board Decisions

Oct 23, 1992

309 N.L.R.B. 326 (N.L.R.B. 1992)

326
309 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only issue on which the Union seeks review is whether the
Regional Director erred in finding that 104 economic strikers were
ineligible to vote in a deauthorization election held more than 1 year
after the commencement of the strike.
Carol Cable Company West and Thomas M. Au-
gustine and United Electrical, Radio and Ma-
chine Workers of America, Local 1015. Case
21–UD–343
October 23, 1992
ORDER DENYING REVIEW
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Union’s request for re-
view of the Regional Director’s Decision and Certifi-
cation of Results of Election (pertinent portions of
which are attached).1 The request for review is denied
as it raises no substantial issues warranting review.
APPENDIX
The investigation disclosed that, in about mid-June 1991,
the Union commenced an economic strike and during that
strike the Employer hired replacement workers. The strike
was settled on March 3, 1992, resulting in, among other
things, a new collective-bargaining agreement and the reten-
tion of the replacement employees. Since many of the strik-
ing employees made offers to return to work, a preferential
recall list was established for the former economic strikers.
In this regard, the evidence is uncontroverted that none of
the 104 challenged voters, who are on this recall list, had
been reinstated as of the date of the election.
The Union asserts that because the former strikers have re-
instatement rights, by virtue of the March 1992 strike settle-
ment agreement between the Employer and Union, they are
eligible voters. It is the Employer’s position that employees
who have not actually been reinstated within 12 months after
the commencement of the economic strike are not eligible
voters. The Petitioner, an individual, did not state a position.
Section 9(c)(3) of the National Labor Relations Act states:
Employees engaged in an economic strike who are not
entitled to reinstatement shall be eligible to vote under
such regulations as the Board shall find are consistent
with the purposes and provisions of this Act in any
election conducted within 12 months after the com-
mencement of the strike.
In Wahl Clipper Corp., 195 NLRB 634 (1972), the Board
examined the legislative history of the above provision and
concluded ‘‘that the 12-month limitation was estabished as a
maximum period of voting eligibility for economic strikers.’’
Wahl Clipper Corp., supra at 635. In Wahl, a group of 29
former strikers had not been offered reinstatement by the
Employer by the date of the election, which was more than
12 months after the commencement of an economic strike.
The Board further stated at 36:
[I]t seems to us the most reasonable course, as well as
the most reasonable interpretation of the statutory lan-
guage, is to hold that replaced strikers are not eligible
to vote in an election held more than 12 months after
the commencement of an economic strike . . . . [W]e
find that only those replaced former economic strikers
who are actually reinstated by the eligibility date of the
election should be entitled to vote. [Emphasis added.]
The only exception to the strict adherence to the 12-month
provision, as outlined in Wahl, was set forth in Jeld-Wen of
Everett, 285 NLRB 118 (1987), wherein the Board directed
that nonreinstated strikers who voted in an election which
was conducted within 12 months of the commencement of a
strike, could also vote in a rerun election held after the expi-
ration of the 12-month period. As the facts presented in this
case differ from the Jeld-Wen case, its application herein is
not appropriate. As no evidence was presented to etablish
that any of the challenged voters in the instant case had actu-
ally been reinstated by the date of the election, the chal-
lenges to all the challenged ballots are hereby sustained.
Wahl Clipper Corp., supra, and Levitz Furniture Co., 248
NLRB 15 (1980).