Diamond Walnut Growers

National Labor Relations Board - Board Decisions

Sep 22, 1992

308 N.L.R.B. 933 (N.L.R.B. 1992)

933
308 NLRB No. 143
DIAMOND WALNUT GROWERS
1 The Employer’s request for review also raises a substantial issue
concerning the unit placement of the gardener, whom we shall per-
mit to cast a challenged ballot. Thus, the request for review is denied
in this and all other respects, except for the one discussed below.
The Employer’s motions for a stay of election and for oral argument
are also denied.
2 82 NLRB 678 (1949).
3 Sec. 9(c)(3) states in pertinent part:
Employees engaged in an economic strike who are not entitled
to reinstatement shall be eligible to vote under such regulations
as the Board shall find are consistent with the purposes and pro-
visions of this Act in any election conducted within twelve
months after the commencement of the strike.
4 Note that most of the Board’s Kingsport Press elections have
been conducted very near the expiration of the 12-month period. As-
suming there were three choices on the ballot because another union
intervened, it would seem clear that the Board would consider a run-
off conducted after expiration of the 12-month period to be simply
another phase of the election commenced within the 12-month pe-
riod. We do not think Sec. 9(c)(3) is so wooden as to preclude such
a common sense result.
Diamond Walnut Growers, Inc. and Cannery
Workers, Processors, Warehousemen & Help-
ers Local 601, International Brotherhood of
Teamsters, AFL–CIO, Petitioner. Case 32–RC–
3553
September 22, 1992
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Employer’s request for review of the Acting Re-
gional Director’s Decision and Direction of Election.
The request for review is granted solely on the issue
of the bifurcated election directed by the Acting Re-
gional Director.1 The Board has carefully considered,
on review, the issue presented, and decided to affirm
the Acting Regional Director’s conclusion.
We reject the Employer’s contention that the Acting
Regional Director abused his discretion under Section
9(c)(3) by directing an election with two separate poll-
ing sessions, one prior to the anniversary date of an
ongoing economic strike to enfranchise the strikers,
and the other during the seasonal peak of employment
2 months later.
The Employer operates a seasonal business receiv-
ing, processing, and marketing walnuts. The Employer
adds approximately 500 seasonal employees to its 300-
employee year-round complement during its peak sea-
son in September and October. Peak employment oc-
curs about the second week of October. The Petitioner
struck the Employer’s seasonal business on September
4, 1991. The Employer continued operations by hiring
both core and seasonal permanent replacement employ-
ees. The Union filed an RC petition seeking a General
Box2 election in an historically recognized unit of full-
time, regular part-time, and seasonal maintenance, pro-
duction and warehouse employees at the Employer’s
Stockton, California facility on April 27, 1992, 5
months prior to the anniversary date of the strike.
The Acting Regional Director noted that if the elec-
tion is not held prior to September 4, 1992, perma-
nently replaced economic strikers will be ineligible to
vote under Section 9(c)(3).3 If the election is held be-
fore September 4, 1992, however, a large number of
seasonal striker replacement employees will be ineli-
gible because the bulk of seasonal hiring occurs after
that date. We believe that the Acting Regional Direc-
tor, faced with this administrative difficulty, and in ac-
cord with Board policy to enfranchise the largest num-
ber of possible voters, struck a reasonable accommoda-
tion between the rights of economic strikers under Sec-
tion 9(c)(3) and the interest of replacement seasonal
workers to express their preferences regarding rep-
resentation. Consistent with Section 9(c)(3)’s directive,
the Acting Regional Director formulated an election
plan that fostered the Act’s policy of enfranchising the
largest number of possible eligible voters, while con-
comitantly effectuating the Congressional objective of
protecting the fundamental right of strikers to vote on
union representation in any election conducted within
12 months from the inception of the strike.
In order to implement Congressional intent to en-
franchise replaced strikers during the first 12 months
of an economic strike, the Board will, as appropriate,
expedite an election to permit economic strikers to
vote. Kingsport Press, 146 NLRB 260, 264 (1964). In
addition, the Board has recognized that the 12-month
eligibility period of Section 9(c)(3) must not be given
an unnaturally wooden interpretation. Jeld-Wen of
Everett, Inc., 285 NLRB 118, 121 (1987). Accord-
ingly, the Board interprets Section 9(c)(3) as ‘‘requir-
ing that replaced economic strikers be empowered to
affect the results of an election for at least 12 months
after the commencement of a strike.’’ 285 NLRB at
120. The bifurcated polling of strikers within the 12-
month eligibility period, and where it is necessary for
unrelated reasons, to poll other employees later, is con-
sistent with this precedent and falls within the clear
spirit and intent of Section 9(c)(3) and its regulatory
directive. In addition, as in Jeld-Wen, significant equi-
ties rest with the replaced strikers. The petition was
filed, and the striker votes will be cast, well within the
12-month period. The disputed election starts, and for
the strikers will conclude in all important respects,
within the 12-month period, and the fact that the elec-
tion continues later results from a special peak-of-sea-
son eligibility rule which is outside the union’s con-
trol.4
Board elections are, of course, normally held on a
unitary basis: a single election, processed continuously
to a conclusion. There are exceptions for good reasons,
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 107 NLRB 427 (1953).
such as progressive election dates when a number of
far-separated sites are involved, or, as noted, runoffs
which are required when no choice among three or
more receives a majority. The somewhat creative reso-
lution decided on by the Acting Regional Director here
is another such exception, designed to meet a specific
need which arose when the Union’s petition was filed
well in advance of the 12-month statutory period for
striker eligibility, but further delay would be required
to preserve the eligibility of the seasonal employees, a
delay which would have had the effect of unfairly
disenfranchising the strikers. Thus, the compromise
here, to meet a specific need to reconcile conflicting
equities, is one which the Board will use very spar-
ingly, and only when it believes the particular cir-
cumstances dictate such deviation from normal proce-
dures.
Finally, we are unpersuaded by the Employer’s ar-
guments that the direction of a bifurcated election
would greatly undercut the integrity of the Board’s
election processes. First, it is unlikely that our applica-
tion of Section 9(c)(3) will swallow the rule. We fore-
see few cases like this where an economic strike oc-
curs in a seasonal industry just prior to the peak of
seasonal hiring and the union files a petition seeking
a General Box election that raises competing eligibility
issues straddling Section 9(c)(3)’s 12-month eligibility
date.
Second, the Employer’s suppositions regarding a 6-
month gap between polling periods and intervening
union threats, violence, and statements concerning the
futility of voting in October are entirely speculative.
The critical period in Board elections frequently en-
compasses a period in excess of 6 months (from filing
of the petition to the date of election). If voting strik-
ers apply and are hired as seasonal employees, it is ob-
vious they cannot cast a second ballot; however, that
will more appropriately be dealt with, if it arises, dur-
ing challenged ballot proceedings after the election.
Further, we note that the Employer exercises non-
discriminatory control over the hiring process it com-
plains about.
With respect to campaign issues, objections, and
challenges, we note that both parties have the same
timeframe to reach polled voters during the campaigns.
There will be no tally of striker ballots until the end
of the second polling session, as in an election held for
different shifts, or one conducted at different polling
sites. The ballot box is sealed. No one will know the
results of the first or second polling until the final
tally. Once the final tally issues, objections are timely.
No objections or challenges are resolved until after the
final tally. Thus, neither the objections process nor the
challenge process is impaired.
We also reject the Employer’s argument that the bi-
furcated election procedure chills free speech. In this
regard, the Employer asserts that it is unclear whether
the Peerless Plywood5 24-hour rule would prohibit a
captive-audience speech to the Employer’s current
work force, i.e., the replacements on the date of the
first polling. That rule is limited to polled employees,
and the only polled employees in the first polling are
the strikers. See, e.g., Shop Rite Foods, 195 NLRB 133
(1972) (Peerless Plywood rule not violated where em-
ployer made captive-audience speeches to employees
in a unit comprised of 26 retail stores, where some
speeches occurred within 24 hours of the time the elec-
tion was to start at other stores, but none of the em-
ployees spoken to were scheduled to vote within 24
hours of the employer’s speech). We also do not find
persuasive the Employer’s contention that any delay in
counting ballots may lead some strikers to needlessly
prolong the strike while waiting to determine whether
the Union still represents them.
In sum, we find that the direction of a bifurcated
election is a permissible and reasonable method of ac-
commodating competing eligibility concerns and
enfranchising the greatest number of eligible voters.