OMNOVA Solutions, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jul 12, 2012

26-RD-001182 (N.L.R.B. Jul. 12, 2012)

NOT INCLUDED IN HGB
BOUND VOLUMES COLUMBUS, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
OMNOVA SOLUTIONS, INC.
Employer
and Case 26-RD-01182
HADEN SELF
Petitioner
and
UNITED STEELWORKERS, AFL-CIO, CLC,
ON BEHALF OF ITS LOCAL UNION NO. 748-L
Union
DECISION AND DIRECTION
The National Labor Relations Board, by a three-member panel, has considered
challenged ballots in a mixed manual-mail ballot election and the hearing officer’s report
recommending disposition of them. The election was conducted pursuant to a Decision and
Direction of Election, under which striker replacements voted manually on July 13, 2011, and
striking employees voted by mail between July 8 and July 28, 2011. The tally of ballots shows 0
votes for and 0 against the Union, with 294 determinative challenged ballots.
Having reviewed the record in light of the exceptions1 and briefs, the Board adopts the
hearing officer’s findings and recommendations as modified below.

1 In the absence of exceptions, we adopt pro forma the hearing officer’s recommendation to
sustain the Employer’s challenges to ballots cast by striking employees who retired during the
course of the strike and to ballots cast by those who printed, instead of signed, their names on
their mail ballot envelopes.
2
We adopt the hearing officer’s recommendation to overrule the Union’s challenges to the
136 ballots cast by permanent replacement employees. We also adopt the hearing officer’s
recommendation to sustain the Employer’s challenges to ballots cast by permanently replaced
employees who had been on strike for more than one year.2 Yet, we do not adopt the hearing
officer’s finding that all striking employees were thus ineligible to vote. As the hearing officer
noted, the parties stipulated that 32 striking employees were not permanently replaced. Those
employees, therefore, were eligible to vote in the election. Gulf States Paper Corporation, 219
NLRB 806, 806-807 (1975). Accordingly, we shall direct that the ballots of 32 eligible striking
employees be opened and counted, but only if those ballots remain determinative after the ballots
of the permanent replacement employees have been counted.3
DIRECTION
The Regional Director for Region 26 shall, within 14 days from the date of this Decision
and Direction, open and count the 136 ballots cast by permanent replacement employees, and
prepare and serve on the parties a revised tally of ballots. If, at that point, the challenged ballots
of the 32 eligible strikers are nondeterminative, then the Regional Director shall issue the
appropriate certification. Otherwise, the Regional Director shall open and count the ballots of

2 Member Griffin agrees that the ballots of the replacements who took the striking employees’
jobs should be counted, as the employer has carried its burden here of demonstrating the
permanency of the replacements’ employment. In this regard, he finds it unnecessary to rely on
Jones Plastics & Engineering Co., 351 NLRB 61 (2007). Member Griffin also agrees that the
challenges to the ballots of the permanently replaced strikers should be sustained, since their
strike was still in progress when the election was conducted and was more than a year old at that
time. Contrary to the hearing officer, in sustaining these challenges he would not rely on Wahl
Clipper Corporation, 195 NLRB 634 (1972), or Thoreson-McCosh, Inc., 329 NLRB 630 (1999),
as he agrees with the dissenting views expressed by Member Fanning in the former case and
Members Fox and Liebman in the latter case.
3 We leave to further proceedings by the Regional Director the identification, if necessary, of the
striking employees who were eligible to vote.
3
those eligible striking employees, prepare and serve on the parties another revised tally of
ballots, and issue the appropriate certification.
Dated, Washington, D.C., July 12, 2012.
_______________________________
Brian E. Hayes, Member
_______________________________
Richard F. Griffin, Jr., Member
_______________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD