Ms. Desserts, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 236 (N.L.R.B. 1990)

236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ms. Desserts, Inc. and Warehouse Employees,
Dairy, Bakery, Soft Drinks, Laundry, Linen,
General Sales Drivers and Allied Employees,
Local Union 570, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO' Petitioner.
Case 5-RC-13317
July 30, 1990
DECISION AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held January 16, 1990, 2 and
the Regional Director's report recommending dis-
position of them The election was conducted pur-
suant to a Stipulated Election Agreement The
tally of ballots shows 27 for and 26 against the Pe-
titioner, with 2 challenged ballots
The Board has reviewed the record in light of
the exceptions and brief and adopts the Regional
Director's findings and recommendations 3
Employee Acie Lyons was discharged by the
Employer on January 2 4 He filed an unfair labor
practice charge with the Board on January 3, 5 and
filed a gnevance protesting his discharge on Janu-
ary 4, pursuant to the Employer's unilaterally es-
tablished grievance and arbitration procedure
Lyons attached to the grievance form a letter stat-
ing in part, "I know with continuing training and
good communication with others, I would be an
asse[t] to the company in more ways than one"
As we have noted, the election was held on Jan-
uary 16 Lyons' ballot was challenged by the Em-
ployer on the basis of his discharge
On February 2, Lyons filed a written request for
arbitration of his grievance In his request, Lyons
sought as a remedy only backpay from the date of
his discharge, and "good references" He did not
request to be reinstated After a heanng on Febru-
ary 27, the arbitrator found that Lyons had been
unjustly discharged because the Employer had
failed to follow its own progressive discipline pro-
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 All dates are in 1990
'One ballot was challenged because the voter had written "no" in the
box on the ballot labeled "NO" The Regional Director found that that
ballot was valid and should be counted as a • NO' vote No exceptions
were filed to that finding Accordingly, we adopt the Regional Director's
recommendation that that vote should be counted as a "NO" vote
4 According to the Employer, Lyons (who was a maintenance mechan-
ic) was discharged for unsatisfactory performance and because of im-
proved maintenance staffing
a The charge was dismissed on March 28 Lyons did not appeal the
dismissal
cedure The arbitrator awarded full backpay from
the date of the discharge to the date of the hearing,
but stated that Lyons had not sought, and the
award did not include, reinstatement The arbitra-
tor specifically did not reach the issues raised in
Lyons' then-pending charge with the Board
The Regional Director recommended that the
challenge to Lyons' ballot be overruled He rea-
soned that, under Pacific Tile & Porcelain Go, 137
NLRB 1358, 1365 (1962), and Paul J Monohon As-
sociates, 213 NLRB 121 (1974), Lyons had pre-
served his nght to cast a challenged ballot by filing
a gnevance protesting his discharge He also found
that, because the arbitrator had found that Lyons
was unjustly discharged and was entitled to full
backpay, and because Lyons had not waived rein-
statement or otherwise abandoned his job before
the election, Lyons was still an employee entitled
to vote on the day of the election
The Employer excepts to the Regional Direc-
tor's finding that Lyons was an employee on the
day of the election It contends that Pacific Tile and
Paul J Monohon are inapposite because neither of
those cases involved an individual whose grievance
had been decided, but who, like Lyons, had not
been ordered reinstated 6 Because Lyons was not
reinstated and was not working on the day of the
election, the Employer argues that he was not eli-
gible to vote We find no merit in this contention
The Board has long held that, to be eligible to
vote, an individual must be employed and working
in the voting unit on the eligibility date and on the
date of the election, unless absent for one of the
reasons set out in the direction of election Spray
Sales & Sierra Rollers, 225 NLRB 1089 (1976) In
Pacific Tile and Monohon, however, the Board cre-
ated an exception for individuals who have been
discharged from their unit jobs before the election
and who have challenged their discharges in
grievance/arbitration proceedings 7 In Monohon, as
2 In Pacific Tile, the Board deferred ruling on challenges to the ballots
of two individuals whose terminations before the election were the sub-
jects of grievances that were pending at the time of the Board's decision
The Board stated that "A grievance determination favorable to the
union's position in cases of this type will result in a holding that the dis-
puted men were employees on the critical dates, while a contrary deter-
mination will result in a finding that they were not" 137 NLRB at i365-
i366 In Monohon, a discharged individual had been ordered reinstated by
an arbdral committee The Board found that, although the employer had
not complied with the arbitral award, the individual's ballot should be
counted 213 NLRB 121
7 There is language in Pacific Tile that distinguishes that case from
those in which unfair labor practice charges have been filed and dis-
missed It could be argued, then, that Pacific Tile does not apply in this
case, in which Lyons' charge was dismissed as lacking in merit We
reject that interpretation In ruling that a pending grievance would
enable a discharged employee to vote a challenged ballot, the Board in
Pacific Tile observed "The fact that the eligibility of individuals may turn
on some question other than an employer's alleged unfair labor practices
Continued
299 NLRB No 24
MS DESSERTS, INC 237
we have noted, the Board found an individual eligi-
ble to vote who had grieved his preelection dis-
charge and had been ordered reinstated 8 Contrary
to the Employer, we reach the same result here
even though Lyons was not ordered reinstated 9
The arbitrator found that Lyons had been im-
properly discharged and ordered that he receive
backpay from the date of the discharge to the date
of the arbitration hearing It appears that the sole
reason the arbitrator did not order Lyons' rein-
statement was that Lyons did not request it The
Employer does not argue, and the record does not
indicate, that the arbitrator lacked the authonty to
order Lyons' reinstatement, or that there was no
job for Lyons to return to In any event, signifi-
cantly, there is no evidence that Lyons had aban-
doned interest in returning to work for the Em-
ployer at any time before February 2, when he
filed for arbitration To the contrary, as the Re-
gional Director noted, when Lyons filed his gnev-
ance on January 4 he also wrote "I know with
continuing training and good communication with
others, I would be an asse[t] to the company in
more ways than one" There is nothing in that
statement to indicate that Lyons was not interested
in returning to work for the Employer
The Board in Pacific Tile held that the party
challenging the vote of an economic stnker must
show affirmatively and by objective evidence that
the striker has abandoned interest in the struck
job " 137 NLRB at 1359 In Monohon, the Board
found that principle equally applicable to dis-
charged persons whose discharges have been con-
tested in gnevance/arbitration proceedings 213
NLRB 121 fn 1 The Employer has not met that
is immaterial The sole Issue is whether the individuals were employees
within the unit on the critical dates 137 NLRB at 1365-1366 That ra-
tionale is equally applicable whether a charge has been filed with the
Board and dismissed, or whether no charge has been filed at all
Consistent with that rationale, the Board applied Pacific Tile in a case
involving the issue of the eligibility of nine individuals, where a com-
plaint alleging that those individuals had been denied employment in vio-
lation of the Age Discnmmation in Employment Act of 1967 had been
filed and was pending before the Department of Labor Advance Industri-
al Security, 217 NLRB 17 (1975) It did so even though a charge alleging
a violation of Sec 8(a)(5), involving the question whether the alleged chs-
cnnunatees should have been counted toward the union's majonty status,
had been dismissed under Sec 10(b) Here, likewise, we find Pacific Tile
applicable even though Lyons charge was dismissed
9 Similarly, a discharged individual may vote subject to challenge if
the discharge is the subject of a pending Board charge, if the discharge is
found to have been unlawful, the individual's ballot is counted See, e g,
Roma! Iron Works Corp. 285 NLRB 1178, 1185 (1987)
9 Indeed, the Board in Pacific Tile did not limit its holding to situations
in which reinstatement is ordered As we have noted, the Board said that
"A grievance determination favorable to the union's position will
result in a holding that the disputed men were employees on the critical
dates" That statement implicitly Includes situations such as this, in which
the individual is not ordered reinstated
1 ° The individual is eligible to vote unless he or she has abandoned the
job on or before the date of the election A change of attitude that comes
after the election is immaterial to the question of the individual's eligibil-
ity See, e g, Q-T Tool Co, 199 NLRB 500, 501 (1972)
burden in this case It has failed to adduce any evi-
dence that Lyons had abandoned interest in rein-
statement on or before the January 16 election
That Lyons did not request reinstatement from the
arbitrator on February 2 is immatenal, Lyons' state
of mind more than 2 weeks after the election is not
probative of his intentions regarding reinstatement
at the time of the election ii
The Employer also contends that the Regional
Director erred in "deferring" to its gnevance/-
arbitration procedure because that procedure was
unilaterally implemented rather than being a prod-
uct of collective bargaining We find this conten-
tion lacking in ment To begin with, the Regional
Director did not "defer" to the arbitral procedure
in the sense that the Board defers to arbitration in
unfair labor practice cases 12 No alleged unfair
labor practice is at issue here The only issue to be
decided by the arbitrator was whether Lyons' dis-
charge comported with the Employer's own proce-
dures Although the arbitrator was appointed pur-
suant to a procedure that had been unilaterally im-
plemented by the Employer, the parties submitted
to the procedure voluntarily, the arbitrator found
the discharge to have been unjust, and the parties
complied with the arbitrator's ruling Under these
circumstances, we are not persuaded that the Em-
ployer's unilateral implementation of the grievance
and arbitration procedures should result in a differ-
ent conclusion regarding Lyons' status from that
which we would reach if the procedures had been
the product of bilateral negotiations
Finally, the Employer argues that, even if Pacific
Tile and Monohon are applicable, the Regional Di-
rector nonetheless erred in failing to direct a hear-
ing at which Lyons' state of mind on February 16
could be determined It contends that although
there is no evidence that Lyons had changed his
mind concerning reinstatement by the date of the
election, neither is there evidence that he had not
changed his mind by that date There is no ment in
this argument The Petitioner does not have the
burden of proving that Lyons had not abandoned
his job by the date of the election The Employer,
as the party asserting Lyons' ineligibility, has the
burden of affirmatively showing, by objective evi-
dence, that he had abandoned the job by that
time 1 3 There is no evidence that Lyons ceased to
desire reinstatement before the election, and the
Employer has not offered to produce any It argues
only that if a heanng had been held, Lyons could
have testified and other relevant evidence could
" Q-T Tool Co, supra
is E g, Spielberg Mfg Co, 112 NLRB 1080 (1955), Collyer Insulated
Wire, 192 NLRB 837 (1971)
'' Monohon, supra at fn 1
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have been presented Such a speculative contention
does not raise "substantial and material factual
issues" requiring a hearmg 14
' 4 See Sec 102 69(d) and (f) of the Board's Rules and Regulations
NLRB v Connecticut Foundry Co, 688 F 2d 871 (2d Cir 1982), cited
by the Employer, actually supports our finding that no hearing is neces-
sary here In that case, the court held that
A party is entitled to have a hearing only if it demonstrates by prima
facie evidence the existence of "substantial and material factual
Issues" which, if resolved in its favor, would require the setting aside
of the representation election [Citations omitted ]
Id at 877 There the court found that a hearing was required to deter-
mine the eligibility of strikers who were receiving unemployment com-
pensation, because state law allowed the payment of such benefits to per-
sons unemployed as a result of a strike only if they were not directly In-
terested in the strike The court found that the strikers' receipt of benefits
under such a statute was sufficient to place in issue their continued Inter-
est in their jobs Id at 876-877 However, the court approved the
Board's decision not to order a hearing in the case of a striker who, ac-
cording to hearsay testimony, had applied for Social Security disability
benefits Given other evidence indicating the individual's desire to return
to work, the court found the hearsay evidence of his mere application for
disability benefits insufficient to create a factual Issue requiring a hearing
Id at 878
In summary, we find, in agreement with the Re-
gional Director, that Acie Lyons was an employee
in the voting unit on the date of the election, and
that the Employer's challenge to his ballot must be
overruled Accordingly, we shall direct the Re-
gional Director to open and count his ballot
DIRECTION
The Regional Director is directed to open and
count the ballot of Acie Lyons, prepare and serve
on the parties a revised tally of ballots, and issue
the appropriate certification
Similarly, the Employer has presented no evidence, prima facie or oth-
erwise, that indicates in any fashion that Lyons had abandoned Interest in
reemployment on or before the date of the election Indeed, the only evi-
dence of Lyons' intentions during the preelection period points to the op-
posite conclusion The Employer is not entitled to a hearing merely on
the basis that, if one were held, something might turn up that would sup-
port its case