Gulf States Papers Corp.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 806 (N.L.R.B. 1975)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf States Paper Corporation , EZ Packaging Divi-
sion and Bobby Lowrey, Jr., and James Shelton,
Petitioners, and United Paperworkers Internation-
al' Union, AFL-CIO. Case 9-RD-673
July 30, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert A.
Edison. Following the hearing and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, this case was transferred to the
National Labor Relations Board for decision. The
Employer, the Petitioners, and the Union filed briefs.
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 Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the National
Labor Relations Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The Petitioners assert that the Union, which is
the currently recognized bargaining representative of
the employees involved herein, is no longer the repre-
sentative as defined in Section 9(a) of the Act.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
The Union was certified as the collective-bargain-
ing representative of the unit employees on Septem-
ber 10, 1973. Thereafter, the Union and Employer
conducted a series of negotiating meetings, but were
unable to reach agreement on a contract. The em-
ployees went on strike on February 27, 1974, to pro-
test the subsequent breakdown in negotiations be-
tween the parties. On March 14, 1975, Petitioners
filed a decertification petition requesting that an
election be held to determine whether or not the
Union should continue to represent the unit employ-
ees. The strike was still in effect at the time of the
hearing.
At the time the strike began, there were 124 em-
1 The name of the Union appears as amended at the heanng.
ployees in the unit. Eight of these employees never
participated in the strike; 27 have abandoned the
strike and returned to work at the Employer's plant;
and 11 have voluntarily terminated their employ-
ment . Of the remaining 78 employees who continue
to be on strike, 43 have had their positions filled by
permanent replacements.
The only issue raised at the hearing was the eligi-
bility of the 78 employees still on strike to vote in a
decertification election conducted more than 12
months after the commencement of the strike. The
Employer and Petitioners claim that none of these
employees would be eligible to vote by virtue of
Wahl Clipper Corporation.2 They claim that Wahl
Clipper stands for the proposition that economic
strikers, regardless of whether they have been re-
placed or not, do not retain their eligibility to vote in
any election conducted more than 12 months after
the commencement of the strike. The Union argues
that all 78 striking employees should be allowed to
vote. In the alternative, the Union contends that the
35 strikers who have not been permanently replaced
are eligible to vote, claiming that Wahl Clipper does
not disenfranchise economic strikers who have not
been permanently replaced.
We find merit in the Union's alternative conten-
tion. We are dealing here with two separate and
clearly identifiable groups of economic strikers-43
who have been replaced and 35 who have not. The
eligibility of replaced economic strikers to vote is
governed by Section 9(c)(3) of the Act, which reads
as follows:
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 provi-
sions of this Act in any election conducted with-
in twelve months after the commencement of
the strike.
The Board in Wahl Clipper carefully considered
this section and its legislative history in determining
its effect upon the voting rights of economic strikers.
Upon such consideration, the Board concluded that
replaced strikers are not eligible to vote in an election
held more than 12 months after the commencement
of an economic strike. Clearly, then, the 43 strikers in
the present case who have been replaced are not eli-
gible to vote, as any election conducted among unit
employees will take place more than 12 months after
the strike which began on February 27, 1974.
As for the 35 strikers who have not been replaced,
Section 9(c)(3) places no restriction on their voting
eligibility similar to that imposed upon replaced
' 195 NLRB 634 (1972).
219 NLRB No. 147
GULF STATES PAPER CORPORATION 807
strikers. Nor did the Board in Wahl Clipper decide
that unreplaced economic strikers lose their voting
eligibility in any election held more than a year after
the commencement of a strike; that was not an issue
in the case.
Section 2(3) of the Act defines an employee as
... any individual whose work has ceased as a con-
sequence of, or in connection with, any current labor
dispute or because of any unfair labor practice
. . . . " In Union Manufacturing Company,3 the
Board held that economic strikers "retain their status
as employees during the course of the strike, absent
some affirmative action which severs that relation-
ship." In a case decided after the 1959 amendment to
Section 9(c)(3),4 which added the 12-month eligibility
period, the Board further stated:
Although it is a question to be determined on
the basis of the facts and circumstances of each
case, generally, an economic striker forfeits such
status, for voting purposes, where prior to the
election he obtains permanent employment else-
where; or the employer eliminates his job for
economic reasons , or discharges , or refuses to
reinstate him for misconduct rendering him un-
suitable for reemployment.
There is no evidence in the present case that the
unreplaced strikers have found permanent employ-
ment elsewhere, or that the Employer has discharged
or refused to reinstate any of the striking employees
for misconduct. However, at the hearing the Employ-
er testified that, because of economic conditions, it
would have been forced to lay off some of its em-
ployees, that it has been operating with approximate-
ly 75 production and maintenance employees, down
from its usual complement of 130, and that there has
been a decrease in the number of orders being placed
with the Company. However, this does not suffice to
show that the jobs of the unreplaced strikers have
been permanently eliminated or abolished so as to
terminate the strikers' employment status and render
them ineligible to vote in the election.
In N.L.R.B. v. Fleetwood Trailer Co., Inc.,5 the Su-
preme Court recognized 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 strik-
er, his employee status continues until he has ob-
tained "other regular and substantially equivalent
employment." And, with this basic principle in mind,
the Board held in Globe Molded Plastics Company,
Inc.:'
Notwithstanding the alleged depressed condi-
tions in the plastics industry, there is no conten-
tion nor any evidence that the work of the strik-
ers has been permanently abolished or that they
have abandoned interest in their jobs. The Em-
ployer has shown that certain work has been lost
and obtaining new customers is difficult, possi-
bly because of the effectiveness of the strike, but
this is not the type of permanent abolition of
jobs or the elimination of jobs for economic rea-
sons which justifies disenfranchising strikers
otherwise eligible to vote.
On the basis of such considerations, we are of the
opinion that the 35 economic strikers in this case
who have not been replaced continue to remain em-
ployees and are eligible to vote in the election we
shall order.
Accordingly, in view of the foregoing, we shall di-
rect an election by secret ballot in the following unit
of employees, which we find to be appropriate for the
purposes of collective bargaining within the meaning
of the Act:
All production and maintenance employees at
the Employer's place of business in Nicho-
lasville, Kentucky, including truckdrivers, but
excluding all office clerical employees, guards,
professional employees, and supervisors as de-
fined in the Act.
[Direction of Election omitted from publication.] I
MEMBER KENNEDY, dissenting:
I believe that economic strikers who have been on
strike for more than 1 year are ineligible to vote in a
Board election under Section 9(c)(3) of the Act.
While the Wahl Clipper decision discussed in the ma-
jority opinion involved a situation in which the eco-
nomic strikers had been permanently replaced, the
legislative history upon which Wahl Clipper is predi-
cated made no distinction between replaced and un-
replaced strikers. For convenience, I am setting forth
below portions of our discussion of the legislative
101 NLRB 1028 (1952).
W. Wilton Wood, Inc., 127 NLRB 1675 (1960).
S 389 U.S. 375 (1967).
6 200 NLRB 377 (1972).
7 [Excelsior footnote omitted from publication.]
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
history appearing in the majority opinion in the Wahl
Clipper case .8 I think it clear that Congress intended
"that economic strikers would not be permitted to
vote after 1 year."
8195 NLRB at 634-635:
"Eligibility of replaced economic strikers to vote in a Board-conducted
election is governed by Section 9(cX3), as amended in 1959. The amended
provision , which changed the Taft-Hartley total prohibition against eligibili-
ty for replaced economic strikers , states as follows:
Employees engaged in an economic strike who are not entitled to rein-
statement shall be eligible to vote under such regulations as the Board
shall find are consistent with the purposes and provisions of this Act in
any election conducted within twelve months after the commencement
of the strike.
"The legislative history of this provision shows that it was adopted as a
compromise measure . Various modifications of the Taft-Hartley total prohi-
bition had been proposed in both Houses . The ultimate compromise was
described in various ways by various members of the Congress . Although,
as pointed out by our dissenting colleague, Senator Kennedy at one point
referred to the compromise as guaranteeing strikers the right to vote "for at
least a year after the strike begins ," 5 much of the legislative history indi-
cates that his view was not the view of the Congress as a whole.
"For example , the resolution instructing the Senate conferees adopted on
August 28 , 1959, in the Senate described the compromise as follows (105
Congressional Record 15906):
The proposal follows the Goldwater bill and the Administration's
recommendations , except that economic strikers would not be permit-
ted to vote after 1 year.
"Note the flat 1-year limitation in that statement. Even more specific was
Representative Griffin 's description of the conference agreement on this
compromise , in which he stated ( 105 Congressional Record, Appendix, Sep-
tember 9 and 10, 1959, p . A7915):
Section 702 relaxes the present ban on voting by economic strikers in
representation elections. Two limitations are imposed : First, economic
strikers are not to be eligible to vote after 12 months from the com-
mencement of the strike ; and second, they shall be eligible prior to that
time only in accordance with regulations established by the Board con-
sistent with the purposes of the act . In other words , a maximum length
of time is established but the Board may limit the right by regulations
consistent with the purposes of the act.
"Similarly, Representative Barden described the compromise as follows
(105 Congressional Record , Appendix, p. A8061):
It is important to note that section 702 does not give employees en-
gaged in an economic strike who are not entitled to reinstatement an
unqualified right to vote . Rather, this section provides that they shall be
eligible to vote only under such regulations as the Board shall find are
consistent with the purposes and provisions of this act and then only if
the election is conducted within 12 months after the commencement of
the strike.
"The legislative history, therefore , while not definitive, lends considerable
support to the view that the 12-month limitation was established as a maxi-
mum period of voting eligibility for economic strikers . Furthermore, while
the reference in the provision to employees "who are not entitled to rem-
statement" at first blush seems to qualify the limitation (as the Regional
Director and our dissenting colleague state ), it must be borne in mind that
neither the Laidlaw Board decision nor the Supreme Court 's decision in
N.L.RB. v. Fleetwood Trailer, 389 U.S. 375 ( 1967), had been handed down
at the time of this 1959 amendment . A review of the congressional debates
strongly indicates that Congress at that time was under the impression that
a striking employee who had been replaced had no remaining job rights or
any entitlement to reinstatement where the strike was economic in charac-
ter. Thus , the reference to employees "not entitled to reinstatement" was not
necessarily intended to qualify the limitation , but more probably was in-
tended only as a further description of economic strikers , to distinguish
them from unfair labor practice strikers."
3 "Senator Douglas , following the lead of Senator Kennedy, also de-
scribed the compromise as permitting economic strikers to vote "for at least
12 months after the strike begins ." ( 105 Congressional Record, Appendix, p.
A8373)"