Union Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 12, 1952

101 N.L.R.B. 1028 (N.L.R.B. 1952)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wage Stabilization Board for a night differential and additional
holiday, treating the three plants as a single unit where common condi-
tions and contractual terms prevail.
Upon the foregoing facts showing a substantial operational and
administrative integration among the three plants and in view of the
history of multiplant collective bargaining, we find that a unit con-
sisting only of the employees in the Employer's folding division is
inappropriate for purposes of collective bargaining.' Accordingly,
as the unit sought by the Petitioner is inappropriate we shall dismiss
the petition.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
A Basalt Rock Company, Inc ., 90 NLRB 1058.
UNION MANUFACTURING COMPANY and AMERICAN FEDERATION OF
HOSIERY WORKERS, AFL, PETITIONER . Case No. 5-RC-1103. De-
cember 12, 1952
Supplemental Decision and Order
On June 25, 1952, pursuant to a Decision and Direction of Election
by the Board,' an election was conducted in the above-entitled pro-
ceeding under the direction and supervision of the Regional Director
for the Fifth Region. At the close of the election, the tally of ballots
was issued and duly served upon the parties concerned. The tally
reveals that of approximately 158 eligible voters, 157 cast ballots, of
which 1 ballot was for the Petitioner, 46 ballots against the Petitioner,
and 110 ballots were challenged. On September 12, 1952, the Regional
Director issued his report on challenges in which lie recommended that
the challenges to 2 ballots be sustained and that the challenges to 21
ballots be overruled. He further recommended that a hearing be held
as to issues raised with respect to the ballots of 87 individuals. As
no exceptions were filed by any of the parties to the Regional Director's
report, the Board, on October 2, adopted the recommendations therein
and ordered that a hearing be held.
On October 23, the Petitioner filed a "Motion to Amend Order
Directing Hearing on Challenged Ballots." The facts upon which
this motion is based are as follows. Since on or about May 4, 1952,
1 Union Manufacturing Company, 5-RC-1103, June 12, 1952, not reported in printed
volumes of Board decisions.
101 NLRB No. 181.
UNION MANUFACTURING COMPANY 1029
it date preceding the filing of the petition in this case, an economic
strike has been in progress at the Employer's plant here involved.
The Board's Decision and Direction of Election, accordingly, pro-
vided that "all persons hired since the commencement of the strike
and all strikers shall be presumptively eligible to vote, subject to chal-
lenge." Of the 87 challenged ballots set for hearing, 82 were cast
by strikers who the Employer contends were ineligible to participate
because they had engaged in "debarment" activity on a picket line at
the Employer's plant prior to the election.2 The Employer in effect
asserts that, because of the "debarment" activity, these strikers lost
reinstatement rights and were not entitled to vote. It further con-
tends that 23 of the same individuals had secured permanent employ-
ment elsewhere at the time of the election and were no longer its em-
ployees. The Petitioner's motion requests that the Board order that
the hearing be restricted to issues other than "debarment" activity
and that ballots challenged only on that ground be opened and counted.
In support of its motion, the Petitioner alleges that none of the strikers
charged with "debarment" activity had been discharged, replaced,
disciplined, or denied reinstatement prior to the election. The Em-
ployer thereafter filed a statement contending that the Petitioner's
motion is unsupported in either law or fact.
Upon full consideration of the issues raised by the motion, the
Board is of the opinion that there is merit to the contention of the
Petitioner. Employees who engage in an economic strike retain their
status as employees during the course of the strike, absent some
affirmative action which severs that relationship .3 This severance may
be accomplished by act of the employee himself, by securing per-
manent employment in another job, or may be accomplished by the
employer through a lawful discharge or refusal to reinstate the strik-
ing individuals. Finally, it may be accomplished through the direct
mandate of the statute.4 If this status as an employee, albeit one out
on strike, has not been ended through one of these means by the date
of the election, the individual is entitled to cast a ballot for the selec-
tion of a bargaining representative, unless, as the statute provides, he
is then a striker not entitled to reinstatement.
This concept of the continuing employee status of strikers is con-
sistent with the terms of Section 9 (c) (3) of the amended Act. That
2 Hearing was also recommended as to two individuals alleged to be watchmen excluded
from the unit , and as to three individuals whose eligibility was challenged on the sole ground
that they had obtained permanent employment elsewhere prior to the election
a Section 2 (3) of the Act states, in part, that "The term 'employee ' shall include . . .
any individual whose work has ceased as a consequence of, or in connection with, any
current labor dispute. . .
* Section 8 (d) of the Act provides that employees who strike, under certain specified
circumstances during the 60-day period prior to the expiration date of a collective bar-
gaining contract , may automatically lose the status of employees
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section provides , in part, that "employees on strike who are not en-
titled to reinstatement shall not be eligible to vote." What was sought
to be accomplished through this provision is shown clearly and un-
mistakably by its legislative history. Thus, the Senate Committee on
Labor and Public Welfare in discussing S. 1126, which, with a minor
svariance, contained the same provision, stated:
When elections are conducted during a strike, situations fre-
quently arise wherein the employer has continued to operate his
business with replacement workers. If such strike is an economic
one and not caused by unfair labor practices of the employer,
strikers permanently replaced have no right to reinstatement
(N. L. R. B. v. Mackay Radio, 304 U. S. 333). It appears clear
that a striker having no right to replacement should not have a
voice in the selection of a bargaining representative, and the
committee bill so provides.
Prior to the enactment of this provision in the Labor Management
Relations Act of 1947, the Board had held that both strikers and
replacements could vote in Board-conducted elections e With the in-
tent of preventing two votes being cast for one job, the Congress
changed this rule by the quoted provision in Section 9 (c) (3), and
directed that strikers whose jobs had been permanently filled by
replacements were ineligible to vote.
The Employer herein, in supporting the challenges to the ballots of
the 82 individuals charged with "debarment" activity, apparently
contends that a striker who engages in violent or illegal conduct dur-
ing a strike automatically becomes ineligible for reinstatement, and
thereby immediately loses the status of an employee without the Em-
ployer's having taken affirmative action. We do not agree. In
situations where strikers have engaged in conduct of such a character
as to render them unsuitable for reemployment and have been dis-
5 Senate Report No. 105, 80th Congress . While the report was on S . 1126, this bill
differed with respect to Section 9 ( c) (3) of the Act as finally enacted only by addition of
the words "unless such strike involves an unfair labor practice on the part of the employer."
The House Conference Report No. 510, on H. R. 3020 noted that "The Senate amendment
[as to Section 9 (c) (3) ] also contained a provision that employees on strike who were not
entitled to reinstatement should not be permitted to vote unless the strike involved an
unfair labor practice on the part of the employer . This provision is also included in
Section 9 ( c) of the conference agreement , with the 'unless ' clause omitted. The inclusion
of such clause would have had the effect of precluding the Board from changing its present
practice with respect to the treatment of 'unfair labor practices ' strikers as distinguished
from that accorded to 'economic ' strikers " For further comments indicating the intent
of Section 9 (c) (3) as being restricted to ineligibility of permanently replaced economic
strikers, see the comments of Senator Taft , Congressional Record , 80th Congress, pp.
3954, 3955.
R See Columbia Pictures Corporation, 64 NLRB 490 , and cases cited therein.
UNION MANUFACTURING COMPANY 1031
charged or denied reinstatement by the employer, the Board has
declined to order that reinstatement be made by the employer.'
Where no such discharge or denial of reinstatement takes place, how-
ever, or where it occurs after the date of the election has passed, the
individual, as an employee whose status has not been altered or chal-
lenged as of the election date, is clearly entitled to vote. Absent dis-
charge or refusal of reinstatement prior to the election date, testimony
as to activities which might have provided a basis for such action on
the part of the employer is clearly irrelevant and immaterial in a
hearing on challenged ballots.
Accordingly, we shall grant the Petitioner's motion to exclude testi-
mony, at any hearing on challenged ballots in this proceeding, as to
alleged "debarment" activity on the part of strikers who were not
discharged or denied reinstatement by the Employer prior to the date
of the election of June 25, 1952. The Regional Director's report on
challenges, however, does not show conclusively whether or not the
82 individuals whose ballots were challenged on "debarment" activity
grounds had been discharged or denied reinstatement prior to the
eligibility date.8 We shall therefore direct that the hearing on chal-
lenged ballots originally directed, be deferred, and that this proceed-
ing be remanded to the Regional Director for an appropriate supple-
mental report on challenges consistent with our ruling regarding the
question of alleged "debarment" activities.
Order
IT Is HEREBY ORDERED that the hearing on challenged ballots pre-
viously directed in this proceeding be postponed indefinitely.
IT IS FURTHER ORDERED that this proceeding be remanded to the
Regional Director for the Fifth Region for the purpose of preparation
and issuance of a supplemental report on challenges.
Member HOUSTON took no part in the consideration of the above
Supplemental Decision and Order.
' See Kansas Milling Co ., 86 NLRB 925 ; B. A. Laboratories, Inc., 80 NLRB 625 at 696;
Deena Artware, Incorporated, 86 NLRB 732 enforced as modified , 198 F. 2d 645 ( C. A. 6).
8 The Regional Director 's report on challenges states that no replacements for strikers
were hired since the beginning of the strike . The Petitioner states in its motion that
none of the strikers had been discharged and that none of the challenged voters bad
requested reinstatement . No contrary statement is noted in the report on challenges but
the Employer's answer to the instant motion alleges that the "motion is unsupported by
either fact or law."