Spray Sales and Sierra Rollers

National Labor Relations Board - Board Decisions

Aug 31, 1976

225 N.L.R.B. 1089 (N.L.R.B. 1976)

SPRAY SALES AND SIERRA ROLLERS 1089
Spray Sales and Sierra Rollers and Los Angeles Ink &
Roller Makers Union No. 2, International Printing
and Graphic Communications Union , AFL-CIO,
Petitioner . Case 21-RC-14397
August 31, 1976
DECISION AND CERTIFICATION OF
RESULTS
By MEMBERS FANNING, PENELLO, AND WALTHER
Pursuant to authority granted the National Labor
Relations Board under Section 3(b) of the National
Labor Relations Act, as amended, a three-member
panel has considered determinative challenges in an
election held December 8, 1975,' and the Regional
Director's report recommending disposition of same.
The Board has reviewed the record in light of the
exceptions and brief and hereby adopts the Regional
Director's findings and recommendations.
Briefly, the Regional Director's investigation re-
veals that employee Meadows was terminated on Oc-
tober 31, 1975. On November 3, several employees
went on strike in protest over the firing of Meadows.
On November 6, the Employer notified the strikers
by mailgrams that unless they reported to work with-
in 72 hours they would be considered as having been
terminated. None of the strikers responded to the
mailgram . Subsequently, an election was held with
the strikers voting subject to challenge. No unfair la-
bor practice charges have been filed with respect to
the discharge of these individuals.
The Regional Director concluded that the strikers
were not eligible to vote since there is no basis for
looking past the fact that they were discharged prior
to the election.
In determining eligibility, the Board has long held
that, in order to be eligible to vote, an individual
must be employed and working in the voting unit on
the established eligibility date as well as on the date
of the election, unless absent for one of the reasons
set out in the direction of election.2
Our colleague's attempt to bring the strikers within
the economic striker exception as set forth in the di-
rection of election is misplaced because such individ-
uals must retain their status as economic strikers dur-
ing the eligibility period in order to be eligible to
vote. Here, it is undisputed that the strikers were ter-
minated prior to the election. As previously men-
1 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election The tally was 0 for , and 4 against , the Petitioner,
there were 11 challenged ballots
2 Roy N Lotspeich Publishing Co, 204 NLRB 517 ( 1973), Ra-Rich Manu-
facturing Corp, 120 NLRB 1444, 1447 (1958)
tioned, no unfair labor practice charge has been filed
claiming that they were unlawfully discharged.
In order for the Petitioner to prevail, it must be
shown that the strikers were unlawfully discharged.
This is because in challenged ballot cases a discharge
is presumed to be for cause where no unfair labor
practice charge has been filed.' That determination,
however, cannot be made in a representation pro-
ceeding.4 As stated by the Board, "[T]o make such a
finding in a representation case would conflict with
the statutory scheme which vests the General Coun-
sel with final authority as to the issuance of com-
plaints based upon unfair labor practice charges and
the prosecution thereof." 5
Thus, in the present case, the Board must presume
that the discharges were lawful' To hold otherwise
would place the Board in the position of making un-
fair labor practice findings in a representation pro-
ceeding where no charges have been filed. "The elec-
tion process may be protected by the timely filing of
charges with respect to the conduct in question." I
Since the discharges are presumed to be lawful, it
follows that whatever voting rights the discharged
employees may once have enjoyed have been extin-
guished. Accordingly, the challenge to their ballots
should be sustained and the results of the election
certified.
Our dissenting colleague, in effect, would de-
termine matters in an investigatory proceeding which
are more properly the subject for resolution in an
adversary proceeding. In our view, this approach
conflicts with well-settled Board precedent expressed
in Times Square, supra, and Texas Meat Packers, su-
pra, which we feel bound to follow. We therefore
adopt the Regional Director's report certifying the
results of the election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Los Angeles Ink &
3 Stainless Welded Products, Inc, 104 NLRB 204 (1953), National Foundry
Company of New York, Inc, 112 NLRB 1214 (1955)
4 Times Square Stores Corporation, 79 NLRB 361 (1948)
5 Texas Meat Packers, Inc, et al, 130 NLRB 279 (1961) (Member Fanning
dissenting)
6 Paragon Products, 134 NLRB 662 (1961), provides no support for the
position taken by our dissenting colleague In that case, the Board held that
a contract containing a union-security provision which is clearly unlawful
on its face does not bar a representation petition The Board made clear,
however, that it would not admit extrinsic evidence in a representation pro-
ceeding to establish the unlawful nature of such a contract Thus, the Board
will not engage in presumptions of illegality, or consider practice or intent in
a representation proceeding However, this is exactly what our dissenting
colleague would do in the present case in order to reach the conclusion that
strikers terminated prior to an election are eligible to vote, our dissenting
colleague would consider evidence to establish an unlawful discharge La-
beling such evidence as "undisputed facts on their face" does not remove
the fact that this is not a document such as in Paragon Products but evidence
that can only be litigated in an unfair labor practice proceeding
7 Texas Meat Packers, supra, 280
225 NLRB No. 157
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roller Makers Union No. 2, International Printing
and Graphic Communications Union, AFL-CIO,
and that said labor organization is not the exclusive
representative of all the employees , in the unit herein
involved , within the meaning of Section 9 (a) of the
National Labor Relations Act, as amended.
MEMBER FANNING, dissenting:
I would not adopt the Regional Director's recom-
mended disposition of the ballots of voters Daniels,
Economou, Erpelding, Falls, McNeely, Rix, Shelter,
and Tinklenberg. Contrary to my colleagues and the
Regional Director, I would overrule the challenges to
these eight ballots on the basis that they were cast by
economic strikers eligible to vote in the election.
My colleagues, relying on Times Square Stores
Corporation, 79 NLRB 361 (1948), and Texas Meat
Packers, Inc., 130 NLRB 279 (1961),8 hold that they
cannot look beyond the fact that the eight employees
were discharged prior to the election in determining
their eligibility to vote. In Times Square Stores, the
Board refused to rule, in a representation case, on
whether or not certain discharged employees were
unfair labor practice strikers. The Board held that, in
the absence of a charge and a complaint," it could
not find that certain strikers were unfair labor prac-
tice strikers because those findings, of necessity,
would include litigation and ruling upon unfair labor
practices.
However, in the proper administration of the Act,
there are limited circumstances in which the Board,
while not specifically ruling on unfair labor practices,
cannot ignore in representation matters the clearly
unlawful import of the facts. For example, in context
of cases involving contract-bar issues, the Board will
not permit a contract with a union-security clause
that is clearly unlawful on its face to serve as a bar.10
In those circumstances, the Board does not make
findings that the use of the unlawful clause consti-
tutes an unfair labor practice-though an unlawful
clause obviously is violative of the Act-but rather
8 1 adhere to the views expressed in my dissent in Texas Meal Packers,
supra The Board has the responsibility to insure a free and untrammeled
choice in representation elections The fact that certain alleged conduct may
also be an unfair labor practice should not preclude our examination of
whether or not that conduct interfered with the election Frequently, con-
duct which interferes with an election also constitutes an unfair labor prac-
tice, and the Board does not usurp the General Counsel's authority, but
indeed meets its responsibilities by examining such conduct
However, in this case, unlike Texas Meal Packers as well as Time Square
Stores, there is no dispute as to the facts Under these circumstances, by
ignoring the legal significance of the undisputed facts before us, the majori-
ty fails to fulfill the Board's obligation to conduct elections under condi-
tions that will allow employees a free expression of their will
9 it is significant to note that in Times Square Stores a charge was filed but
dismissed by the General Counsel Thus, in that case, the Board was being
asked to rule on allegations that the General Counsel had previously found
to be lacking in merit
10 See Paragon Products Corporation, 134 N LRB 662 (1961)
does not allow the contract with the unlawful provi-
sion to bar the representation proceeding. Nor does
the Board, in such cases, allow litigation and the ad-
mission of extrinsic evidence to show an ambiguous
clause is unlawful, but judges the clause's provisions
on its face.
In this case, the facts are not in dispute. On No-
vember 3, 1975, the eight employees in question went
on strike to protest the firing of fellow employee
Robert Meadows. The employees refused to work
unless Meadows was reinstated. The Employer re-
fused to reinstate Meadows, and thereafter the strik-
ing employees commenced picketing which contin-
ued to the date of the election.
On November 6, 1975, the Employer sent a mail-
gram to each striking employee stating:
Request you be available for work within 72
hours or advise excusable reason. Jobs available
on seniority basis. Failure to report within time
alloted will indicate a definite termination by
you and company.
None of the eight employees responded to the mail-
gram," and the Employer then considered these eight
employees as being discharged. There is no conten-
tion that the employees were considered discharged
for any reason other than their refusal to abandon
the strike.
In deciding the eligibility of these eight voters, I
would not decide whether unfair labor practices were
committed by the Employer against the employees.
Rather, I would find-based on the undisputed
facts-that nothing had occurred to terminate the
right of the eight economic strikers to vote in the
election. It is not disputed that the eight employees
became economic strikers when they went on strike
and commenced picketing on November 3. Thereaf-
ter, the Employer came to consider these employees
discharged solely because they refused, despite his
request, to abandon the strike. Though an employer
can replace economic strikers, its discharge of them
for refusing to abandon the strike cannot extinguish
their right to vote in a representation election.
I cannot agree with my colleagues that we must
always presume, absent unfair labor practice pro-
ceedings, that discharges were for cause. The use of
that presumption is totally unjustified where the un-
disputed facts on their face clearly demonstrate that
the employees were considered discharged solely for
refusing to abandon their strike. Under these circum-
stances, the only reasonable conclusion is that the
One individual, Cecil Daniels, never received the mailgram However.
the Regional Director found that Daniels was aware of the contents of the
mailgram and that his circumstances were no different from that of other
strikers
SPRAY SALES AND SIERRA ROLLERS 1091
eight challenged voters, who had commenced a strike
about a month before the election, remained eco-
nomic strikers on the election date and were there-
fore eligible to vote in the election."
In 1959, in amending Section 9(c)(3) of the Act,
Congress defined the eligibility of economic strikers
by giving them eligibility to vote in an election con-
ducted within 12 months of the strike. In order to
implement fully the policy enunciated in Section
9(c)(3), the Board should not, as does the majority,
employ an unwarranted assumption and ignore un-
disputed facts that conclusively show that the chal-
lenged voters were economic strikers eligible to vote
in the election. To find the challenged voters eligible
it The Employer offered no evidence to rebut the presumption that the
economic strikers were eligible to vote in the election See Pacific Tile and
Porcelain Company, 137 NLRB 1358 (1962)
to vote, the Board need not intrude into the province
of the General Counsel to issue complaints in unfair
labor practice cases." Rather, to fulfill its own re-
sponsibility to conduct free and fair elections and to
protect the rights of economic strikers to participate
in an election, the Board, based on the uncontested
facts before it, should find that the eight challenged
voters were eligible to vote in the election. Accord-
ingly, I would overrule the challenges to the eight
voters and direct the Regional Director to count the
ballots in question.
13 My colleagues express concern about determining , in an investigatory
proceeding, matters "more properly the subject for resolution in an adver-
sary proceeding" However, in representation proceedings , the Board fre-
quently must resolve substantial and material issues of fact , such as deciding
whether an economic striker has abandoned his interest in a job Moreover,
their concern is inappropriate in this case inasmuch as there are no disputes
of fact that need to be resolved