Charter Communications, Inc.

National Labor Relations Board - Unpublished Board Decisions

Mar 19, 2020

02-RD-220036 (N.L.R.B. Mar. 19, 2020)

1

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD

CHARTER COMMUNICATIONS (SUCCESSOR
TO TIME WARNER CABLE OF NYC)
Employer

and

Case 02-RD-220036

BRUCE CARBERRY
Petitioner

and

LOCAL UNION NO. 3, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
Union

ORDER

The Union’s Request for Review of the Regional Director’s Supplemental Decision on
Challenges and Objections is granted because it raises a material and substantial issue with
respect to the Regional Director’s decision overruling the Union’s challenges to the ballots cast
by 581 strike replacement employees and sustaining the Employer’s and Petitioner’s challenges
to the ballots of 651 strikers.1 Contrary to the Regional Director’s apparent assumption, the
passage of more than 12 months since the commencement of the strike does not, standing alone,
demonstrate that the 581 replacement employees were permanent replacements or that the 651
strikers had been permanently replaced.2 Under O.E. Butterfield, Inc., 319 NLRB 1004 (1995),
the Board presumes that replacements for economic strikers are temporary employees; an
employer may overcome that presumption by showing a mutual understanding between itself and
the replacements that they are permanent. The Regional Director’s decision contains neither
evidence nor analysis of whether the 581 replacements were temporary or permanent, or whether
all 651 strikers had been permanently replaced.

1 No party has challenged the Regional Director’s decision to sustain the challenges to 20
of the 601 ballots cast by replacement employees and to 15 of the 666 ballots cast by strikers that
all contained printed names, rather than signatures.
2 The Regional Director’s reliance on Wahl Clipper Corp., 195 NLRB 634 (1972) is
misplaced, because that case merely holds that after a year, only permanently replaced strikers
who are reinstated by the eligibility date are eligible to vote. Strikers who have not been
replaced remain eligible to vote even after a year has elapsed. See, e.g., Erman Corp., 330
NLRB 95, 95 (1999). Here, the question is whether the strikers were permanently replaced in
the first instance.
2

In addition, under Lamb-Grays Harbor Co., 295 NLRB 355, 357 (1989), where an
employer eliminates positions for economic reasons and operates during a strike with fewer
employees than it employed prior to the strike, the employer is required to establish that it
permanently eliminated the positions and that its reason for eliminating those positions was not
predicated wholly on considerations following from the strike itself. The Union has asserted —
and the Employer does not appear to dispute — that the Employer is operating with some 300
fewer employees than it employed at the time the strike commenced. However, the Regional
Director did not consider whether the Employer had established that the positions were
permanently eliminated under Lamb-Grays and, if the positions have not been eliminated,
whether any of the 651 strikers held these now-vacant positions when the strike commenced and
thereby retain their eligibility.

Finally, under Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359 (1962), if a party
alleges that economic strikers have retired or otherwise voluntarily separated from their
employment during the strike, that party must affirmatively show by objective evidence (which
the Board assesses on a case-by-case basis) that the economic strikers have abandoned their
interest in their struck jobs. The Regional Director did not apply this standard to consider the
eligibility of the 117 strikers whom the Employer asserts voluntarily separated from its employ.

Accordingly, we remand those matters to the Regional Director for further proceedings
consistent with the order, including a hearing, if warranted. In addition, because the Union’s
Objection 6 may turn on the eligibility issues discussed above, we reinstate this objection and
direct the Regional Director to hold it in abeyance pending resolution of the challenges and, if
necessary, to consider it along with Objections 1–5. The Request for Review is denied in all
other respects.3

JOHN F. RING, CHAIRMAN

MARVIN E. KAPLAN, MEMBER

WILLIAM J. EMANUEL, MEMBER

Dated, Washington, D.C., March 19, 2020.

3 In denying review of Objection 7, we do not rely on the Regional Director’s stated
grounds for overruling Objection 7. Instead, we find that although the original Voter List may
have been inaccurate (as alleged in Objection 6), the Employer timely submitted it.
Although we deny review of the Union’s contention that the Board should, solely for
voter-eligibility purposes, determine whether the strike was converted to an unfair labor practice
strike, the denial is without prejudice to the Union raising it again if the Union does not
ultimately prevail in the election.
Finally, because the Regional Director impounded the ballots following the Union’s
filing of its Request for Review, we deny the Union’s request for impoundment as moot.