Globe Molded Plastics Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1972

200 N.L.R.B. 377 (N.L.R.B. 1972)

GLOBE MOLDING PLASTICS
Globe Molded Plastics Company , Inc., Employer-
Petitioner and Textile Workers Union of America,
AFIL-CIO-CLC. Case 8-RM-635
November 21, 1972
DECISION AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted in the above-entitled proceeding on
January 26, 1972, under the direction and supervi-
sion of the Regional Director for Region 8, among
the employees in the appropriate unit. At the
conclusion of the balloting, the parties were fur-
nished a tally of ballots, which showed that of
approximately 35 eligible voters, 33 cast ballots, of
which none were cast for the Union, 7 were cast
against the Union, and 26 were challenged. The
challenged ballots were sufficient in number to affect
the results of the election. No objections to the
election were filed.
Pursuant to the provisions of the National Labor
Relations Board Rules and Regulations, after rea-
sonable notice to the parties and opportunity to
present relevant evidence, the Regional Director
conducted an investigation of the issues raised by the
challenges and, on February 25, 1972, issued and
served on the parties his Report on Challenged
Ballots recommending that the challenges to the
ballots cast by Roy Allen, Samuel Bradshaw, Harley
Church, Joseph Chester, Jr., Robert Enochs, Gregory
Fogle, Russell Funk, David W. Gadd, Charles
Gerdau, David Kochur, Keith Larrick, Robert
Lashley, Gary McGeary, Richard Milhoan, Harold
Moore, Daniel Nealey, George Nealey, Gary Nichol-
son, Joe Proctor, John Rothwell, John Robish, Dale
Smith, David Stevens, Richard Stillion, Ernest
Wheeler, and Glen Wheeler be sustained. Thereafter,
the Union filed timely exceptions to the Regional
Director's recommendations regarding the challenges
to ballots cast by the 26 above-named individuals.
The Employer filed a reply to the Union's excep-
tions. Subsequently, pursuant to a Union telegram
citing changed circumstances, the Regional Director
conducted a further investigation and issued a
Supplemental Report on Challenged Ballots.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
I N L R B v. Great Dane Trailers, 388 U.S. 26.
377
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties agreed, and we find, the following
employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of the Act.
All production and maintenance employees em-
ployed by the Employer at its Byesville, Ohio
plant, excluding all office clerical employees, and
professional employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Union's exceptions thereto, and the
Employer's reply. In his Report on Challenged
Ballots the Regional Director found that due to the
loss of business during the period of time the
employees had been engaged in an economic strike
the Employer had only enough work for its present
seven employees and that it could not reasonably
anticipate receiving any additional business in the
foreseeable future due to the depressed conditions in
the plastics industry. In view of the foregoing, the
Regional Director recommended that the challenges
to the ballots of the 26 above-named individuals
should be sustained since the employees did not have
any reasonable expectancy of recall. We disagree.
Section 2(3) of the Act provides that an individual
whose work has ceased as a consequence of a labor
dispute continues to be an employee if he has not
obtained regular and substantially equivalent em-
ployment, and Section 9(c)(3) of the Act clearly
provides that:
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 consistent with the purposes and provisions
of this Act in any election conducted within
twelve months after the commencement of the
strike.
The Supreme Court has stated that it is the primary
responsibility of the Board to "strike the proper
balance between the asserted business justifications
and the invasion of employee rights in light of the
Act and its policy."' Later, in N.L.R.B. v. Fleetwood
Trailer Co., Inc., 389 U.S. 375, the Court recognized
200 NLRB No. 65
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that strikes frequently affect the level of production
and the number of jobs, holding that a striker's basic
right to a job cannot depend upon job availability as
of the moment he applies for reinstatement, but as a
striker, his employee status continues until he has
obtained "other regular and substantially equivalent
employment." 2 With these basic principles in mind,
we turn to the facts in this case where the 26 above-
designated economic strikers, employees under Sec-
tion 2(3) of the Act until they obtain other regular
and substantially equivalent employment, had been
engaged in their strike for 3 months prior to the
election.3 Notwithstanding the alleged depressed
conditions in the plastics industry, there is no
contention nor any evidence that the work of the
strikers has been permanently abolished or that they
have abandoned interest in their jobs. The Employer
has shown that certain work has been lost and
obtaining new customers is difficult, possibly be-
cause of the effectiveness of the strike, but this is not
the type of permanent abolition of jobs or the
elimination of jobs for economic reasons4 which
justifies disenfranchising strikers otherwise eligible to
vote .5 Accordingly, we find that the economic
strikers herein involved are entitled to exercise their
employee franchise and are eligible to vote. Chal-
2 Compare, The Laidlaw Corporation, 171 NLRB 1366; C H Guenther &
Son, Inc, d/b/a Pioneer Flour Mills, 174 NLRB 1202, 1203
3 In Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359, the
Board stated that it would presume that an economic stnker continues in
such status and, hence , is eligible to vote under Sec. 9(c)(3). To rebut such
presumption, the party challenging his vote must affirmatively show by
objective evidence that the employee has abandoned his interest in his
struck job. Moreover, even the acceptance of other employment, without
informing the new employer that only temporary employment is sought, will
not of itself be recognized as evidence of abandonment of the struck job so
as to render the economic striker ineligible to vote. The Board therein
overruled Horton's Laundry, Inc, 72 NLRB 1129, and Remington Rand Inc.,
74 NLRB 447, to the extent that they are inconsistent with the approach
adopted for the resolution of the issue under discussion The Board has
consistently applied the presumption it announced in Pacific Tile and
Porcelain Company See, Roylyn, Inc., 178 NLRB 197; Akron Engraving
Company, Inc, 170 NLRB 232, S & M Manufacturing Company, 165 NLRB
lenges to the ballots of the 26 above-designated
individuals are hereby overruled.6
We shall direct that the Regional Director open
and count these ballots, and issue and serve on the
parties a revised tally of ballots and an appropriate
certification of the results of the election.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain the representative for the purpose of
collective bargaining with the Employer, the Region-
al Director for Region 8 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Direction, open and count the ballots
cast by Roy Allen, Samuel Bradshaw, Harley
Church, Joseph Chester, Jr., Robert Enochs, Gregory
Fogle, Russell Funk, David W. Gadd, Charles
Gerdau, David Kochur, Keith Larrick, Robert
Lashley, Gary McGeary, Richard Milhoan, Harold
Moore, Daniel Nealey, George Nealey, Gary Nichol-
son, Joe Proctor, John Rothwell, John Robish, Dale
Smith, David Stevens, Richard Stillion, Ernest
Wheeler, and Glen Wheeler, and thereafter prepare
and cause to be served on the parties a revised tally
of ballots including therein the count of above-
mentioned ballots and an appropriate certificate.
663, Kingsport Press, 146 NLRB 1111, 1112; American Metal Products
Company, 139 NLRB 601.
4 Cf. Meridian Plastics, Inc, 108 NLRB 203, 205; and E. J. Kelley
Company, 98 NLRB 486, 488.
5 N L R B v, Fleetwood Trailer Co., Inc, supra, where in the concurring
opinion of Mr. Justice Harlan , he noted that the employer had neither
abolished nor filled the strikers jobs, but intended at all times to return to
full production as soon as practicable.
6 In his Supplemental Report on Challenged Ballots of July 17, 1972, the
Regional Director recommended that his initial Report on Challenged
Ballots , dated February 25, 1972, be disregarded and that a hearing be held
to resolve the alleged issues raised by the Employer's challenges to the
ballots of the 26 voters involved. Such recommendation of the Regional
Director is overruled since a literal reading of Sec. 9 (c)(3) of the Act makes
the changed economic conditions in the circumstances of this case irrelevant
to the issue of voting status