Thiokol Corp.

National Labor Relations Board - Board DecisionsApr 8, 1976

223 N.L.R.B. 787 (N.L.R.B. 1976)

THIOKOL CORP. 787 Thiokol Corporation-Delta Division and Internation - Employer's general foreman, before July 11 when the al Union of Electrical , Radio & Machine Workers, Employer purported to accept his voluntary resigna- AFL-CIO, Petitioner. Case 1-RC-13837 tion. According to the Acting Regional Director's re- port, Supervisor Marquardt on June 18 notified April 8, 1976 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties on May 28, 1975, and approved by the Acting Regional Director for Region 1 on May 29, 1975, an election by secret ballot was conducted among certain employees of the Employer on July 17, 1975, under the direction and supervision of said Acting Regional Director. At the conclusion of the election a tally of ballots was furnished the parties which showed that of approxi- mately 116 eligible voters 56 votes were cast for the Union, 56 votes were cast against the Union, and 1 ballot was challenged. The challenged ballot is deter- minative of the results of the election. On August 15, 1975, the Acting Regional Director issued a Report on Challenged Ballot which recom- mended that the challenge to the ballot be sustained, and that a revised tally of ballots and Certification of Results of Election be issued. Thereafter, the Union filed exceptions to the Act- ing Regional Director's recommendation that the challenge be sustained. The Employer filed a state- ment in support of the Acting Regional Director's Report on Challenged Ballot. 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. The Board has reviewed the record in light of the exceptions and, contrary to the recommendation of the Acting Regional Director, believes that the con- tentions of the parties with respect to the challenged ballot can best be resolved by a formal hearing. We find a hearing appropriate because the Acting Re- gional Director's report leaves us uncertain as to (1) whether the Employer had in fact terminated Paul Fisck's employment prior to the election, and (2) if so, whether he was nevertheless entitled to vote be- cause he had a reasonable expectation of recall on the date of the election. It is clear beyond question from the Acting Re- gional Director's report that Fisck's oral resignation of June 18, 1975, to become effective July 7, had been withdrawn, upon the suggestion of the Fisck that he would not receive a requested transfer to another shift. Unable to secure this transfer, Fisck informed Marquardt that he was giving his notice and would like to make July 7 his last day. On June 19, Fisck advised Petitioner's representatives of his decision to leave. They asked him to remain until after the election. Later that day, Chaney, the Employer's general foreman, asked Fisck if he was sure he was doing the right thing by resigning. Fisck then asked if he could have a week to think over his decision, and Chaney answered in the affirmative. Fisck was injured on the job the same day. On June 23, Fisck brought a disability slip from the doctor, gave it to clerical employee Chappuis, and asked her to tell Chaney not to fill out his notice, as he would be returning to work. Five days later, Fisck brought Chappuis another disability slip, and stated he would return to work in a week. On July 7, the date which he had originally suggested would be his last day, Fisck called Chappuis and said he would return to work on July 14. Notwithstanding Fisck's clear with- drawal of his resignation with the approval of the Employer's general foreman, the Employer sent Fisck a letter on July 11, informing him not to return to work since he had voluntarily resigned. From these circumstances our dissenting colleague concludes that "Although Petitioner and the Em- ployer disagree as to whether or not Fisck was of- fered a chance to reconsider his decision to quit," a hearing is unnecessary to ascertain the facts because "it is undisputed that his employment was terminat- ed by July 11" by the Employer's letter purporting to accept Fisck's voluntary resignation. There are no facts in the Acting Regional Director's report to sup- port either the Acting Regional Director's or our dis- senting colleague's apparent conclusion that the Employer's purported acceptance of Fisck's with- drawn resignation evidenced an intent to terminate him involuntarily. We are unwilling to speculate on the possible inference to be drawn from the accep- tance of a resignation that has been effectively with- drawn and, on the basis of the Acting Regional Director's report, we are unable to determine wheth- er the letter of acceptance was mistakenly sent or whether the Employer would have sent Fisck a letter of involuntary termination in the absence of an offer to resign. For these reasons, we believe the ambigui- ties in the factual situation with respect to whether the Employer intended to terminate Fisck can best be resolved by a hearing. A hearing is also appropriate to resolve the factual 223 NLRB No. 106 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute with respect to whether Fisck had a reason- able expectancy of recall on the date of the election based upon Petitioner 's contention that the Employ- er promised to "re-hire" him on a priority basis when it needed additional employees . Our dissenting col- league maintains that, even assuming Petitioner's claim to be true , the facts asserted do not convert his termination into a layoff with a reasonable expectan- cy of recall and that there was no evidence that the Employer was laying off employees at that time. In the light of the ambiguities surrounding Fisck's al- leged termination , we do not understand how it can be discerned that this was not a layoff; nor can we perceive the basis for the assertion concerning the lack of evidence of laying off employees . The Acting Regional Director's report did not deal with the question and no other source of evidence is available to us at this time . Our dissenting colleague assumes, without evidence , that Fisck was involuntarily termi- nated if his offer to resign was withdrawn . But, even if this is so, there is no basis for concluding that he was dismissed for cause or that a reason other than lack of work was responsible for his termination. A termination with a promise to rehire at the first op- portunity, as Petitioner claims , would seem to be a layoff rather than a termination . In any event, it is clear that a "terminated" employee is entitled to vote if, on the day of the election , he has a reasonable expectation of recall in the foreseeable future. Grand Lodge International Association of Machinists and Aerospace Workers, AFL-CIO, 159 NLRB 137 (1966); American Printers & Lithographers, Inc., 174 NLRB 1179, 1185-86 (1969). In Grand Lodge International Association of Ma- chinists and Aerospace Workers, supra, the record showed that a number of employees "were terminat- ed during 1965." The petitioner claimed that the ter- minations were temporary and that these employees were entitled to vote. The Board held the petitioner was entitled to have this issue resolved, stating: The record shows only that they were termi- nated and that the Employer's financial position has recently improved. The termination letters referred to by the Petitioner are not in evidence, and there is no other evidence as to the circum- stances of their termination or the Employer's intentions regarding their recall. As the record is therefore insufficient to show whether these em- ployees have a reasonable expectancy of recall in the foreseeable future, we shall permit those terminated in 1965 and not recalled prior to the eligibility date to vote subject to challenge [159 NLRB at 142.] above, namely "whether these employees have a rea- sonable expectancy of recall in the foreseeable fu- ture ." This is precisely the issue we would resolve by a hearing. Since the circumstances surrounding Fisck 's termi- nation are uncertain and the issue regarding Fisck's expectancy of recall in the foreseeable future is unre- solved , we believe that the facts determinative of his right to vote can best be ascertained at a hearing. ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of receiving evidence to resolve the issues raised with respect to (1) whether the Employer intended to and did terminate Paul Fisck notwithstanding the with- drawal of his offer to resign , and (2) whether Paul Fisck , on the date of the election , had a reasonable expectation of recall in the foreseeable future. IT IS FURTHER ORDERED that the Hearing Officer designated for the purpose of conducting such hear- ing shall prepare and cause to be served on the par- ties a report containing resolutions of the credibility of witnesses , findings of fact , and recommendations to the Board as to the disposition of said objections. Within 10 days from the date of issuance of such report either party may file with the Board in Wash- ington , D.C., eight copies of exceptions thereto. Im- mediately upon the filing of such exceptions , the par- ty filing the same shall file a copy with the Regional Director . If no exceptions are filed thereto , the Board will adopt the recommendations of the Hearing Offi- cer. IT IS FURTHER ORDERED that the above -entitled mat- ter be, and it hereby is, referred to the Regional Di- rector for Region 1 for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is , authorized to issue notice thereof. CHAIRMAN MURPHY, dissenting: Contrary to my colleagues , I see no reason to refer this proceeding for a hearing on the challenged ballot of Paul Fisck. On June 18, 1975,' Fisck was informed by his im- mediate supervisor that he would not be transferred to a more desirable shift, and, consequently, Fisck told the supervisor that July 7 would be his last day on the job. On June 19, according to Petitioner, Fisck was approached by General Foreman Fred Chaney who asked Fisck if he was sure he was doing the right thing. Fisck allegedly asked if he could have a week to think it over and Chaney replied that he could. However, Fisck was injured on the job the same day. We would apply the same test of eligibility set forth 1 All dates herein are in 1975 unless otherwise indicated. THIOKOL CORP. 789 On June 23 he brought a disability slip to the shop and asked a clerical employee , Bonnie Chappuis, to tell Chaney not to fill out his notice as he would be returning to work . Fisck brought a second disability slip to the shop on June 30 and told Chappuis that he would be back to work in a week or so. On July 7, Fisck called the Employer and told Chappuis that he would return to work on July 14. However, on July 11 he received a registered letter from the Employer informing him not to come in to work because he had voluntarily resigned. The election herein was conducted on July 17, and the tally of ballots showed that there were 56 votes for, and 56 votes against , the Petitioner with I chal- lenged ballot , Fisck's. The Acting Regional Director , on the basis of the foregoing , found that , whether or not Fisck 's termi- nation was voluntary or involuntary , he was not em- ployed on the date of the election and was therefore ineligible to vote . The majority , however , finds that issues of fact requiring a hearing were raised by Petitioner 's exceptions to the Acting Regional Director's report . I disagree . Although Petitioner and the Employer disagree as to whether or not Fisck was offered a chance to reconsider his decision to quit, it is. undisputed that his employment was terminated by July It. Fisck's assertion that he was told he would be one of the first called when the Employer started rehiring does not, even if true, convert his termination into a layoff with a reasonable expectancy of recall. There is no evidence showing that the Employer was laying off employees at that time; furthermore, the evidence clearly establishes that Fisck's termination resulted from his submitting a notice of resignation , the ulti- mate acceptance of which by the Employer severed the employment relationship. In such circumstances, I construe the Employer's alleged offer to rehire Fisck to mean at the most that he would be consid- ered as having made application for future employ- ment in the event the Employer decided to hire addi- tional help. Hence, I see nothing to be gained from remanding for a hearing. Rather , on the basis of the above facts I agree with the Acting Regional Direc- tor that Fisck was not employed by the Employer on the date of the election and was, accordingly , ineligi- ble to vote. I also note that no charge has been filed alleging that Fisck 's termination was discriminatorily motivated.