Harter Equipment, Inc

National Labor Relations Board - Board Decisions

Apr 12, 1989

293 N.L.R.B. 647 (N.L.R.B. 1989)

HARTER EQUIPMENT 647
Harter Equipment, Inc and George M Zatrinski,
Petitioner and Local 825, International Union
of Operating Engineers , AFL-CIO Case 22-
RD-754
April 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, a hearing was held
on November 12, 1986, before Hearing Officer
Gregory M Burke Pursuant to Section 102 67 of
the National Labor Relations Board Rules and
Regulations, and by direction of the Regional Di-
rector for Region 22, this case was transferred to
the National Labor Relations Board for decision
Thereafter, the Employer filed a brief in support of
its position
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has reviewed the rulings of the hear-
ing officer made at the hearing and finds that they
are free from prejudicial error They are affirmed
On the entire record in this case, the Board
finds
The Employer' and the Union, Local 825, Inter-
national Union of Operating Engineers, have been
parties to a series of collective-bargaining agree-
ments 2 In October 1981 the Employer and the
Union commenced negotiations for a new contract
to succeed the one scheduled to expire on Decem-
ber 1, 1981 The Union refused to agree to the Em
ployer's proposal for reductions in wages and
changes in the union-security clause and offered to
extend the expiring contract for 6 months so that
negotiations could continue The Employer refused
to extend the contract and stated that it would not
allow employees to work without a contract
On December 3, 1981, the Employer locked out
its employees in order to put pressure on the Union
' The Employer a New Jersey corporation with its principal office
and place of business at RD 2 Box 115A Englishtown New Jersey is
engaged in the sale distribution and service of construction and lawn
maintenance equipment and related products It annually purchases and
receives construction equipment and other goods and materials valued in
excess of $50 000 directly from suppliers located outside New Jersey
Based on the foregoing we find that the Employer is engaged in com
merce within the meaning of the Act and that it will effectuate the poli
cies of the Act to assert jurisdiction herein The Union is a labor organs
zation within the meaning of the Act
S On January 16 1974 the Regional Director for Region 22 certified
the Union as the exclusive collective bargaining representative of all pro
duction and maintenance employees including truckdrivers welders me
chanics helpers equipment dismantlers and erectors machine shop and
parts department employees employed by the Employer at its English
town location but excluding all office and professional employees
guards and supervisors as defined in the Act
to agree to terms favorable to the Employer In
mid-January 1982 the Employer commenced hiring
temporary employees so that it could resume oper-
ations On June 24, 1986, the Board found that be-
cause no specific proof of antiunion motivation was
presented, the Employer did not violate Section
8(a)(3) and (1) by hiring temporary replacements in
order to engage in business operations during the
lockout 3
A decertification petition was filed on November
15, 1983, by George Zatnnski, a replacement em-
ployee who later became a supervisor 4 A hearing
was held on November 12, 1986, to determine
whether an election should be held in this case and
if so, which employees are eligible to vote-the
locked-out employees and/or the current work
force At the time the petition was filed the locked-
out bargaining unit was replaced by 12 persons On
November 12, 1986, the number of persons work-
ing in bargaining unit positions had increased to 17
Zatnnski, who hired employees in 1985, testified
that many applicants knew of the Employer's on-
going labor dispute and, because of it, he told new
hires that they would be temporary employees
There was no testimony that any replacements
were told that they were permanent
The Employer's position is that the locked out
employees should not be able to vote Specifically,
the Employer's president stated
The only employees that I recognize now are
those employees that are there, that are work-
ing at the company nobody from five
years ago
The Union's position at the heanng was that the
petition should be dismissed because there was no
adequate showing of interest and that the current
employees have been determined to be temporary
and thus are not eligible to vote The Regional Di-
rector has not made any determination on the ade-
quacy of the showing of interest because he could
not determine who is eligible to vote
For the following reasons, we have determined
that only the five locked-out employees are eligible
to vote Although 5 years have elapsed since the
decertification petition was filed, there is no evi
dence or even an allegation that any of these five
employees has abandoned his job Moreover, it
would be inconsistent with the Act and the deci-
s Harter Equipment 280 NLRB 597 (1986) review denied sub nom
Operating Engineers Local 825 v NLRB 829 F 2d 458 (3d Cir 1987)
4 The parties stipulated that the Petitioner George Zatnnski was a su
pervisor within the meaning of Sec 2(11) of the Act at the time of the
hearing but that he possessed no supervisory indicia at the time of the
filing of the petition We agree with the hearing officer that where the
petitioner becomes a supervisor after the filing of the petition the pro
ceedings are not abated
293 NLRB No 79
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sion in Harter to disenfranchise these employees
Had they been permanently replaced after they
called an economic strike, their right to vote would
have ended 1 year later or upon an affirmative act
by them to end their employment However, these
employees are not strikers Rather , the Employer
locked out the bargaining unit in support of its bar-
gaining demands and they were not, and could not
lawfully be, permanently replaced Indeed, the
finding that the replacements were temporary was
essential to the dismissal of the complaint in Harter
The Board held "that the use of temporary em
ployees here had only a comparatively slight effect
on [locked out] employee rights " Harter, supra at
599
We also find that the 17 employees who were
hired to "replace" the locked-out employees are in
eligible to vote An essential aspect of the Harter
finding was that the Employer locked out the bar-
gaining unit for its failure to agree to the Employ-
er's offer The lockout was therefore not merely di-
rected to the particular employees who happen to
have made up the unit at the time It follows then
that regardless of their number, those hired into the
unit jobs during the lockout are necessarily tempo
rary replacements for the locked-out bargaining
unit
Thus, we find that the only employees who are
eligible to vote or support a decertification petition
are those five employees who were employed in
the bargaining unit at the time of the lockout We
are therefore remanding this case to the Regional
Director to determine if the showing of interest
submitted in support of the petition indicates ade-
quate support for the petition among the eligible
voters If so, he shall conduct an election If the
Regional Director determines that there is not an
adequate showing of interest among the eligible
voters, he shall dismiss the petition
ORDER
The National Labor Relations Board remands
this case to the Regional Director for Region 22 to
determine from the showing of interest submitted
in support of the petition whether there is an ade-
quate showing of interest for the petition among
the eligible voters If so, he shall conduct an elec
tion If not, he shall dismiss the petition