Speakman Electric Co

National Labor Relations Board - Board Decisions

Jul 21, 1992

307 N.L.R.B. 1441 (N.L.R.B. 1992)

1441
307 NLRB No. 214
SPEAKMAN ELECTRIC CO.
1 No exceptions were filed to the Regional Director’s recommenda-
tion sustaining the challenges to the ballots of Wesley V. Milliken
and Charles ‘‘Randy’’ Thompson. We adopt those recommendations
pro forma.
The sole issue before the Board now concerns the Regional Direc-
tor’s recommendation to sustain the challenges to the ballots of Wil-
liam Garfield Arnold and Timothy Andrew Raymer. A question ex-
ists concerning whether Arnold and Raymer were temporarily laid
off or discharged, including the circumstances surrounding any no-
tice of such alleged discharges. These factual issues must be re-
solved before determining whether the presumption in Texas Meat
Packers, 130 NLRB 279 (1961), and its progeny should be applied
here. Our dissenting colleague acknowledges that there are credi-
bility issues as to the events of July 3, 1991. He finds, nonetheless,
that the Employer had no intention of recalling Arnold and Raymer
because on August 7, 2 days before the election, the Employer told
the Union that the Employer had fired these two individuals prior
to July 25, the eligibility date. The Union, however, was not the
agent or representative of the two employees, and there is no evi-
dence even that the Employer wanted the Union to communicate this
information to the two employees. The only undisputed communica-
tions to Arnold and Raymer from the Employer concerning their em-
ployment status were the July 3 layoff letters which advised each of
them that the layoff was ‘‘only . . . temporary’’ and that the Em-
ployer would be calling back the ‘‘entire workforce.’’ Particularly
where the Employer has advised employees in writing that their lay-
off is temporary, and there is no undisputed evidence that the Em-
ployer later advised the employees to the contrary, we cannot with-
out a hearing fairly rely on the Employer’s statement to a third
party—the Union—more than a month after the layoff to establish
as an incontrovertible fact that the Employer had discharged the em-
ployees prior to the election.
1 See, e.g., Sol-Jack Co., 286 NLRB 1173 (1987). The majority
suggests that the test of whether a laid-off employee has a reason-
able expectation of recall turns critically on what the employer di-
rectly communicated to the employees whose status is in dispute. To
the contrary, what an employer tells employees about the likelihood
of recall is only one of the objective factors which the Board re-
views in resolving the eligibility issue. See Higgins, Inc., 111 NLRB
797 (1955). In this case, the Employer unequivocally expressed to
the Union its intention of not recalling Arnold and Raymer. The fact
that the Union did not relay the message to the two employees does
not refute the clear, undisputed, and objective evidence of employer
intent.
Speakman Electric Co., Inc. and International
Brotherhood of Electrical Workers, AFL–CIO,
Petitioner. Case 26–RC–7390
July 21, 1992
DECISION, DIRECTION, AND ORDER
REMANDING FOR HEARING
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered challenges to an election
held August 9, 1991, and the Regional Director’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows four for and
four against the petitioner, with four challenged bal-
lots, a number sufficient to affect the results of the
election.
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the Regional
Director’s findings and recommendations only to the
extent consistent herewith.1
DIRECTION
It is directed that a hearing be held for the purpose
of receiving evidence to resolve the issues raised by
the challenges to the ballots of William Garfield Ar-
nold and Timothy Andrew Raymer.
IT IS FURTHER DIRECTED that the hearing officer
designated for the purpose of conducting the hearing
shall prepare and cause to be served on the parties a
report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the
Board as to the disposition of the issues. Within 14
days from the issuance of the report, any party may
file with the Board in Washington, D.C., an original
and seven copies of exceptions. Immediately on the fil-
ing of exceptions, the party filing them shall serve a
copy on the other party, and shall file a copy with the
Regional Director. If no exceptions are filed, the Board
will adopt the recommendations of the hearing officer.
ORDER
IT IS ORDERED that the proceeding be remanded to
the Regional Director for Region 26 who shall arrange
and issue notice of the hearing.
MEMBER RAUDABAUGH, dissenting.
I see no need for a hearing on the challenges to bal-
lots cast by Arnold and Raymer. Although there may
well be credibility issues as to the events of July 3,
1991, it is clear that, as of August 7 (2 days before
the election), the Employer had no intention of ever re-
calling these two employees. It is undisputed that the
Employer told the Union on that day that it had fired
those individuals. Accordingly, as of the election date,
they had no reasonable expectancy of recall to work.
They were therefore ineligible to vote.
Where, as here, the Employer makes it clear, 2 days
prior to the election, that he has no intention of recall-
ing the employees, and there is no dispute as to his in-
tentions as of that date, I would find that the two em-
ployees have no reasonable expectancy of recall as of
the election date.1