Great Lakes Carbon Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1987

284 N.L.R.B. 486 (N.L.R.B. 1987)

486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Great Lakes Carbon Corporation and Michael
Rogers, Petitioner and Oil, Chemical & Atomic
Workers International Union AFL-CIO Local
423, Union. Case 23-RD-589
24 June 1987
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenges in an election held 2 October 1986 and the
hearing officer's report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 59 for and 59 against the Union, with 21
challenged ballots, a sufficient number to affect the
results.
The Board has reviewed the record in light of
the exceptions and briefs, and adopts the hearing
officer's fmdings and recommendations,' except as
modified.
The hearing officer recommended overruling the
challenge to the ballot of Donald Landers. In this
connection, she found that:
The evidence established that Landers was
not in lay-off status as of May 12, 1986, the
day the strike began. The fact that had the
strike not occurred, Landers would have been
laid-off on May 19, 1986 is not the issue, for
the May 19, 1986 lay-off did not come to frui-
tion. Further, based upon the settlement agree-
ment, the Employer returned Landers to
work. It would appear that since Landers was
never laid-off, when the Employer returned
him to work that he reverted to striker status
1 The hearing officer inadvertently °nutted Wiley Lawson's name
from the list of those whose challenged ballots she recommended opening
and counting. The parties at the hearing stipulated that Lawson was an
eligible voter. Accordingly, we shall include his ballot among those to be
opened and counted.
and thus was eligible to vote in the election.
Accordingly, it is concluded that Landers was
an eligible voter and entitled to vote in the
election. Accordingly, it is recommended that
the charge [sic] to his ballot be overruled.
The Employer has excepted, inter alia, to the
hearing officer's finding and recommendation re-
garding Landers. We fmd merit in the exception.
As shown above, the hearing officer considered
Landers' status to be that of either a laid-off em-
ployee or a striker. Based on a postelection settle-
ment agreement, the hearing officer further con-
cluded that Landers subsequently reverted to strik-
er status and should be deemed an eligible voter.
We find it unnecessary to reach that issue.
Landers name was not included on the eligibility
list, and his ballot was challenged because he had
been terminated. Absent a determination, e.g., by
admission or through resolution in an unfair labor
practice proceeding, that his discharge was dis-
criminatory, or other agreement by the parties on
his eligibility, we must deem Landers to have been
lawfully terminated before the election and hence
not eligible to vote. As there is no agreement by
the parties that Landers was eligible, and neither
admission nor a finding that his termination was
unlawful, we sustain the challenge to his ballot.
DIRECTION
IT IS DIRECTED that the Regional Director,
within 10 days of the date of this decision, open
and count the ballots of Steven Hebert; Richard
Theis, and Wiley Lawson; prepare and serve on
the parties a revised tally of ballots; and issue the
appropriate certification pursuant to the Board's
Rules and Regulations.
ORDER
It is ordered that the matter is referred to the
Regional Director for Region 23 for further proc-
essing.
284 NLRB No. 65