Curtis Industries

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1212 (N.L.R.B. 1993)

1212
310 NLRB No. 206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 195 NLRB 634 (1972).
2 The election was originally scheduled for December 3, 1992, but
is currently blocked by unfair labor practice charges which are under
investigation.
3 The complaint asserts that jurisdiction arises under Sec. 301 of
the LMRA and Secs. 502 and 510 of ERISA and pendent jurisdic-
tion is invoked pursuant to the Ohio Revised Code Sec. 4112.99.
4 Eligibility of replaced economic strikers to vote in a Board-con-
ducted election is governed by Sec. 9(c)(3) which states in pertinent
part: ‘‘Employees in an economic strike who are not entitled to rein-
statement 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.’’ 5 219 NLRB 806 (1975).
Curtis Industries, Inc. and Michael Heidenreich, Pe-
titioner and International Union, UAW and its
Local 70. Case 8–RD–1605
April 30, 1993
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS 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 Direction
of Election. The request for review is granted as it
raises a substantial issue with respect to the Regional
Director’s finding that approximately 69 permanently
replaced economic strikers are not eligible to vote
under Wahl Clipper,1 as the election in the instant case
will be conducted more than 12 months after the com-
mencement of the economic strike.2 The Regional Di-
rector rejected the Union’s argument that pending Fed-
eral litigation alleging that the 69 disputed individuals
had been illegally replaced rendered these individuals
eligible to vote. Having carefully considered the matter
at issue, we find, contrary to the Regional Director,
that the pending litigation in which the disputed indi-
viduals claim discriminatory termination under other
statutes and seek, inter alia, reinstatement, places their
employee status into question, and thus entitles them
to cast a challenged ballot.
The undisputed facts as set forth in the Regional Di-
rector’s decision show that on April 5, 1990, an eco-
nomic strike commenced and subsequently the Em-
ployer hired 60 permanent replacements. The instant
decertification petition was filed on April 2, 1992. A
class action complaint filed by 69 strikers in the
United States District Court, Northern District of Ohio,
Eastern Division alleges that their permanent replace-
ment by the Employer was a pretext for the illegal ter-
mination of these individuals based on their age and
eligibility for fringe benefits.3
The Regional Director found that the pending litiga-
tion could not stay the operation of Section 9(c)(3) of
the Act4 and that, based on Wahl Clipper, the disputed
individuals are ineligible to vote as they are perma-
nently replaced economic strikers who engaged in a
strike which commenced more than 12 months prior to
the scheduled election. We find, in agreement with the
Union, that Wahl Clipper is inapposite. There, the
Board found that although the permanently replaced
economic strikers had been put on a preferential hiring
list pursuant to a strike settlement, they remained ineli-
gible to vote because they had not, in fact, returned to
work by the eligibility dates. In doing so, the Board
rejected the contention that the language in Section
9(c)(3) ‘‘Employees engaged in an economic strike
who are not entitled to reinstatement’’ was intended to
refer to a particular classification of replaced economic
strikers to whom Section 9(c)(3) would apply, finding
instead that the phrase was more probably intended
merely as a description of all replaced economic strik-
ers to distinguish them from unfair labor practice strik-
ers. Thus, the Board in Wahl Clipper found it immate-
rial that the former strikers were on a preferential hir-
ing list and were to be reinstated at some point in the
future; instead, it found that only those economic strik-
ers who had actually been reinstated were entitled to
vote.
Here, the strikers are not claiming simply that they
are entitled to be reinstated in the future. Instead, they
argue that they were never, legally, permanently re-
placed as their Employer’s action in replacing them
while they were on strike was in violation of unrelated
Federal law and have filed a class action suit claiming
such. If they are successful in the pending litigation,
they would be entitled to vote under Gulf States5 as
they would no longer be in the category of perma-
nently replaced strikers.
The Regional Director also erred in concluding that
the cases cited by the Union, Machinists, 159 NLRB
137 (1966); Advance Industrial Security, 217 NLRB
17 (1975); and Pacific Tile & Porcelain, 137 NLRB
1358 (1968), are inapposite because (1) those cases,
unlike the instant case, did not involve the eligibility
of individuals who had engaged in an economic strike
beginning more than 12 months prior to the election,
and (2) those cases ‘‘reflect the Board’s policy of al-
lowing discharged employees to cast challenged ballots
in situations in which their status as employees is
being contested in litigation ancillary to the Board’s
unfair labor practices mechanism.’’ We disagree.
In Advance, the disputed individuals had been dis-
charged by their employer and had filed a complaint
with the United States Department of Labor, charging
the employer with violating the Age Discrimination in
Employment Act of 1967. The Board directed that they
vote a challenged ballot because it is well established
that individuals may vote by challenged ballot when
1213CURTIS INDUSTRIES
their eligibility cannot be determined on the existing
record.
Similarly, in Machinists, supra, discharged employ-
ees were allowed to cast challenged ballots because
they were seeking reinstatement from a United States
District Court under the Labor-Management Reporting
and Disclosure Act. The Board noted that a verdict in
the disputed individuals’ favor would establish that
their employee status had never been lawfully termi-
nated. And see Pacific Tile where the Board permitted
two employees to vote subject to challenge, as they
were awaiting determination regarding their discharge
grievances which were pending in arbitration.
Those cases clearly establish that when an individ-
ual’s status with respect to his employment situation is
currently unresolved due to pending Federal court liti-
gation or arbitration proceedings, the Board allows that
individual to cast a challenged ballot.
Moreover, the Regional Director’s finding that the
Board permits employees to cast challenged ballots in
those situations only if their contested litigation is an-
cillary to an unfair labor practice proceeding is directly
contradicted by Advance. There, the Board specifically
stated ‘‘[t]he fact that eligibility of individuals may
turn on some question other than an employer’s al-
leged unfair labor practice is irrelevant. The only issue
is whether the individuals were employees within the
unit on the critical dates.’’ Advance, supra at 18.
It is true that the above-cited cases involved employ-
ees who were discharged, as opposed to economic
strikers who were replaced on an allegedly permanent
basis—the situation here. However, this distinction is
immaterial. An employer cannot wrongfully sever the
employment rights of the disputed individuals, either
by illegal discharge or improper replacement, and then
invoke Section 9(c)(3) to disenfranchise them. The
proper course is to vote the affected employees under
challenge pending resolution of the employees’ claim
for reinstatement.
Accordingly, the Decision and Direction of Election
is amended to permit the 69 disputed individuals to
vote in the election and their ballots shall be chal-
lenged by the Board agent. If the votes of these indi-
viduals are determinative and their claims regarding
their employment status are still unresolved, the Re-
gional Director, at that time, shall make a further in-
vestigation to determine whether the claims are likely
to be resolved within a reasonable period of time.
Based on that investigation, if the Regional Director
determines that the Federal lawsuit will not be re-
solved with reasonable promptness, he should sustain
the challenges to the ballots of the disputed individuals
in the interest of prompt resolution of the question
concerning representation. If the Regional Director de-
termines from his investigation that the claims regard-
ing those individuals’ employment status will likely be
resolved within a reasonable period of time, the ballots
shall remain unopened and the Regional Director shall
periodically thereafter review the status of the individ-
uals in question.