Paul J. Monohon Associates

National Labor Relations Board - Board Decisions

Aug 30, 1974

213 N.L.R.B. 121 (N.L.R.B. 1974)

PAUL J. MONOHON ASSOCIATES 121
Paul J. Monohon d/b/a Paul J . Monohon Associates
and William E. McClellan, Petitioner, and Local
299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 7-RD-1086
August 30, 1974
DECISION AND DIRECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation to Set Aside the Election,
approved by the Regional Director for Region 7, on
October 15, 1973, a rerun election was conducted by
secret ballot on February 1, 1974, under the direction
and supervision of the Regional Director, among the
employees in the appropriate collective-bargaining
unit described below. At the conclusion of the elec-
tion, the Regional Director served on the parties a
tally of ballots which showed that of approximately
eight eligible voters seven cast ballots, of which three
were for, and two were against, the participating labor
organization, with two ballots challenged. The chal-
lenged ballots are sufficient in number to affect the
results of the election.
In accordance with the National Labor Relations
Board's Rules and Regulations and Statements of
Procedures, Series 8, as amended, the Regional Direc-
tor conducted an investigation. As the investigation
established the existence of substantial and material
issues of fact best resolved by a hearing, the Regional
Director issued a notice of hearing on February 20,
1974. Thereafter, on March 14, 1974, a hearing was
held before Hearing Officer Charles W. Slavin for the
purpose of resolving issues raised by the challenged
ballots of Thomas Hannon and William McClellan.
On March 27, 1974, the Hearing Officer issued his
Report and Recommendation on Challenged Ballots
in which he recommended that both ballots be opened
and counted and the results incorporated in a revised
tally of ballots.
Thereafter, the Employer filed timely exceptions to
the Hearing Officer's recommendation that the ballot
of Thomas Hannon be opened and counted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the fol-
lowing employees constitute an appropriate unit for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All engineers and/or survey aids, draftsmen and
inspectors employed by the Employer at its facili-
ty located at 17100 W. Seven Mile Road, Detroit,
Michigan; but excluding registered professional
engineers, registered land surveyors, temporary
employees, co-op students, guards and supervi-
sors as defined in the Act and all other employ-
ees.
5. The Board has considered the Hearing Officer's
report, the exceptions, and the entire record in this
case, and hereby adopts the Hearing Officer's find-
ings and recommendations. In our opinion, the
Employer's exceptions raise no material or substantial
issues of fact or law which warrant reversal of the
Hearing Officer's findings and recommendations.
We agree fully with our dissenting colleague that no
eligibility issue concerning the first election is now
before the Board for decision. In effect the first elec-
tion was never resolved but consolidated with a com-
plaint case that was ultimately settled. The parties
agreed to a rerun; the Employer does not contend that
the agreement specifically excluded Hannon as a vot-
er. We conclude that Hannon was eligible to vote in
the rerun and that his ballot should be counted. He
was ordered reinstated under the bargaining contract
by unanimous vote of a union-management commit-
tee. Although this occurred before the first election, it
was still unimplemented at the time of the rerun be-
cause-without adequate reason here appearing-the
Employer had declined to reinstate Hannon. We see
no reason to ignore that arbitration determination,
still not acted upon, in this still pending decertifica-
tion proceeding. We have no quarrel with the Hearing
Officer's analogy to Pacific Tile and Porcelain Compa-
ny, 137 NLRB 1358, 1365-67 (1962).' The length of
1 The Board there modified the rule that a pending charge , not yet acted
upon by the General Counsel, is necessary to permit discharged persons to
vote by challanged ballot, and found a pending grievance to be equally
effective as a prerequisite, saying "any interpretation of the contract will be
made by someone whose function it is to do so ." The contract interpretation
favorable to Hannon was made during processing of this case. We view it as
current and applicable . The Board also (id. at 1359)--on the job abandon-
ment issue posed by ballots of economic strikers-decided to require "an
affirmative showing by objective evidence " that an economic striker had
abandoned his job before disenfranchising him. We think this salutary princi-
Continued
122, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hannon's unemployment at the time of the rerun
election-which disturbs our colleague-is no fault of
Hannon. The time was largely consumed by the pro-
cessing and settlement of the complaint proceeding.'
Lastly, the decision of the Union and Hannon not to
seek court enforcement of the award up to this point
in time is a frail basis for disenfranchising this voter.
Accordingly, we shall direct the Regional Director
to open and count the challenged ballots of Thomas
Hannon and William McClellan.
DIRECTION
The Regional Director is hereby directed to open
and count the ballots of Thomas Hannon and Wil-
liam McClellan, prepare and serve on the parties a
revised tally of ballots, and issue the appropriate certi-
fication.
MEMBER KENNEDY , dissenting in part:
The question presented here is how long an individ-
ual who has been refused reinstatement by an em-
ployer, after a reinstatement order by an arbitration
panel , remains eligible to vote in a representation elec-
tion. The majority would extend this period indefi-
nitely and open and count the ballot of Hannon. I do
not agree with this decision.
The majority relies on Pacific Tile and Porcelain
Company, 137 NLRB 1358, which involved challenges
to ballots of economic strikers who had grievances
pending. We are not here concerned with the chal-
lenge to the ballot of a striker. Hannon was not on
strike and his grievance had been decided nearly 9
months prior to the election on February 1, 1974.
Hannon was discharged on April 5, 1973. He imme-
diately filed a grievance which resulted in arbitration.
The arbitration board ordered reinstatement, but
without backpay, on May 14, 1973. Hannon, accom-
panied by his union steward, promptly requested rein-
statement, but the Employer refused. Hannon
attempted to vote in the original election on June 18,
1973, and his ballot was challenged by the Employer.
This challenge was never resolved because the parties
agreed in September 1973 to a rerun election. At the
time the parties agreed to the rerun election, they
settled the charge in Case 7-CA-1043 with provision
for reinstatement of dischargee William Webb. The
settlement made no provision for reinstatement of
Hannon. Section 10(b) of the Act forecloses any ac-
tion on our part to order Hannon reinstated. I reject
the conclusion of the majority that Hannon's casting
a challenge ballot at the June 18, 1973, election and
pie is equally applicable to Hannon and that no such showing has been made,
2 The Regional Director approved the settlement on October 15; the post-
ing period expired December 19, 1973.
his appearance at the settlement discussions in Sep-
tember 1973 evidence a "continuing interest" by Han-
non in his job.
I am satisfied that Hannon has abandoned any
expectation of reemployment by this Employer. Han-
non entered into a partnership in a health foods store
shortly after Employer's refusal to reinstate him. He
works in that store 3 days a week and has also engaged
in part-time employment with a private investigator
and a painting contractor.
I recognize that acceptance of another job does not
necessarily evidence abandonment of employment.
But the record herein establishes that the Union and
Hannon were well aware that the Company had re-
placed him with another employee soon after the arbi-
tration award. No attempt was made by the Union or
Hannon to obtain court enforcement of the arbitra-
tion award during the 8-1/2 months that elapsed be-
tween that award and Hannon's attempt to vote in the
rerun election? Hannon and the Union have had am-
ple time to initiate such a suit, but they have not done
so. It is also significant that there is no unfair labor
practice charge relating to Hannon pending with the
Agency.
The eligibility to vote in the first election is not in
issue here. What we are concerned with is the eligibili-
ty of Hannon to vote in the second election held on
February 1, 1974. No eligibility issue concerning the
first election is before the Board for decision.
The majority emphasizes that the second election
was a rerun election as if that fact had special signifi-
cance with respect to Hannon's eligibility to vote in
the second election. Plainly, the only eligible voters in
the second election on February 1, 1974, were those
employed during the payroll period ending January
11, 1974, and not those listed on the payroll preceding
the first election. Hannon had not worked for the
Employer for over 9 months at the time of the second
election. The majority assumes that Hannon's time
between the first election and the second election was
"largely consumed" by the complaint case which was
settled. This assumption conflicts with the fact that
the complaint case was settled almost 5 months before
the second election was held.
The majority further contends that "the first elec-
tion was never resolved." The first election was final-
ized after the parties agreed in September 1973 to set
aside that election and conduct a new one. Thus, the
first election was invalidated by the Regional Director
based on the agreement of the parties. Indeed, if the
first election had not been invalidated and finally set
aside, the Board would have been precluded from
3 The Employer urges that the arbitration proceeding was irregular and
unfair . I express no opinion as to these contentions of the Employer, but I
note that the Union has not sought enforcement of the award.
PAUL J. MONOHON ASSOCIATES 123
conducting another election within 12 months of the remote to justify treating him as an eligible voter.
first election by Section 9(c)(3) of the Act. Hannon has abandoned his status as an employee and
In my view , Hannon's possible reemployment is too I, therefore, would sustain the challenge to his ballot.