Jeld-Wen Of Everett, Inc.,

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 118 (N.L.R.B. 1987)

118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jeld-Wen of Everett , Inc.,i Employer-Petitioner and
Lumber Production and Industrial Workers
Union , Local 1054 , affiliated with the Puget
Sound District Council , Lumber and Sawmill
Workers; Western Council of Lumber, Produc-
tion and Industrial Workers, Union-Petitioner.
Cases 19-RC-10958 and and 19-RM-1871
31 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 31 December 1985 the Regional Director for
Region 19 issued a Supplemental Decision and
i Subsequent to the Board's grant of review, the then Employer, E A
Nord, Inc (Nord), filed a motion for reconsideration claiming that the
representation proceeding had become moot as Nord no longer existed
because another company, Jeld-Wen of Everett, Inc (Jeld-Wen), had
purchased Nord's assets in Chapter 11 bankruptcy proceedings In its
motion , Nord argued that Jeld-Wen was not a party to this proceeding
and, therefore, could not be bound by a certification of the Union unless
it was found to be an alter ego or successor employer to Nord Nord
asserted that no such relationship existed The Union, however, filed a
response to Nord 's motion in which it argued that Jeld-Wen was a suc-
cessor employer to Nord and thus the representational issues raised by
the petitions had not become moot' From the facts presented, it appeared
that there had been no cessation or change in the operation of the plant
during the change in ownership, nor had there been any change in the
employee complement Accordingly, the Board, on 9 July 1986, issued a
Notice to Show Cause why Jeld-Wen should not be substituted for Nord
in this proceeding The responses to the Notice to Show Cause from
Nord, Jeld-Wen, and the Union, however, raised substantial and material
issues of fact which the Board found warranted a hearing regarding
whether Nord had ceased to exist and whether there was any single/joint
employer, alter ego, or successor employer relationship between Nord
and Jeld-Wen Therefore, on 19 September 1986, the Board remanded the
case to the Regional Director for a hearing and the issuance of a supple-
mental decision on these issues
On 18 December 1986 the Regional Director issued his supplemental
decision finding Jeld-Wen a successor employer to Nord Specifically, he
found that Jeld-Wen has continued the same business operations at the
Nord site using substantially the same work force to perform the same
jobs using Nord equipment and methods of production to produce the
same types of products for the same customers as Nord In addition, Jeld-
Wen retained Nord's plant manager, personnel director, and floor super-
visors, and working conditions remained substantially the same Thus, the
Regional Director concluded that although Jeld-Wen had made changes
in some benefits and purchased some new equipment, these factors were
insufficient to offset the other factors which overwhelmingly pointed to a
finding of successorship He therefore found that Jeld-Wen is a successor
to Nord Magnolia Manor Nursing Home, 260 NLRB 377 (1982) The Re-
gional Director also found that Jeld-Wen's purchase of Nord's assets
through a bankruptcy reorganization did not defeat a successorship find-
ing No request for review was filed by any of the parties with respect to
this decision
As Jeld-Wen is a successor employer to Nord, Jeld-Wen is the proper
subject of the organizational interests of Nord's former employees We
have therefore substituted Jeld-Wen as the party in interest in this pro-
ceeding In so doing , we find that Nord's contention in its motion for re-
consideration that substitution of Jeld-Wen for Nord would violate the
bankruptcy court's order that Jeld-Wen acquire Nord's assets "free and
clear of all claims , liens or interests" is without merit Our substitution of
Jeld-Wen for Nord, like the Regional Director's finding that Jeld-Wen is
a successor employer, is not precluded by the fact that Jeld-Wen pur-
chased Nord's assets in bankruptcy
Report on Challenges and Certification of Results
in which he sustained the challenges to the ballots
of 464 economic strikers finding them ineligible to
vote in the election as they had been engaged in an
economic strike for more than 12 months, and cer-
tified the results of the election. This election was a
rerun of the first election, conducted within 12
months after the commencement of the economic
strike, but set aside due to the Employer's miscon-
duct. In accordance with Section 102.67 of the
Board's Rules and Regulations, the Union filed a
timely request for review of the Regional Direc-
tor's decision. The Board, by mailgram order dated
2 June 1986, granted the Union's request, as this
case raises the novel question whether replaced
strikers,2 eligible to vote in an initial election held
within 12 months of the inception of an economic
strike, should be allowed to vote in a rerun election
held outside the 12-month period of Section 9(c) of
the Act where the rerun election is necessitated by
misconduct.
The Board has considered the entire record in
this case, including the parties' briefs on review,
and makes the following findings.
Pursuant to the Regional Director's Decision and
Direction of Election dated 15 June 1984, an elec-
tion was conducted on 11 July 1984 among the
Employer's employees. Both the striking employ-
ees, who had been engaged in an economic strike
since 14 July 1983 when contract negotiations be-
tween the Employer and the Union broke down,
and their replacements voted in this election. The
election resulted in challenged ballots sufficient in
number to affect the results of the election. In addi-
tion, the Union filed timely objections to the elec-
tion, as well as an unfair labor practice charge in
Case 19-CA-16949 on 7 August 1984. A complaint
issued in the unfair labor practice case on 27 Sep-
tember 1984, amended on 15 November and 20 De-
cember 1984, alleging 8(a)(1) violations. On 17 Oc-
tober 1984 the Regional Director consolidated the
representation case with the unfair labor practice
case for hearing before an administrative law
judge. During the hearing, the parties voluntarily
2 It is unclear from the evidence before the Board whether all the
challenged employees are permanently replaced economic strikers The
only finding with respect to the replacement of the strikers is that made
by the administrative law judge in E A Nord Co, 276 NLRB 1418, 1419
(1985), in which he stated that "[w]hen the Union struck on July 14,
1983, approximately 500 employees joined the strike Only a few of those
returned to work, but the Company hired strike replacements and addi-
tional employees until there were approximately 700 employees on the
job " We have assumed, for purposes of this decision, that all the striking
employees were permanently replaced To the extent that any of the
strikers were not permanently replaced, the voting eligibility of such
strikers is of course unaffected by this decision as they remain eligible to
vote so long as the Employer has not eliminated their jobs or discharged
or refused to reinstate them for misconduct or they have not abandoned
interest in their jobs See Gulf States Paper Corp, 219 NLRB 806 (1975)
285 NLRB No. 19
JELD-WEN OF EVERETT, INC.
resolved most the challenges and the judge ordered
a recount of the ballots. The final tally of ballots
showed that 528 votes were cast for the Union, 619
votes against, with only 25 votes challenged. As
the remaining challenged ballots were insufficient
in number to affect the outcome of the election,
they were not resolved. The judge sustained the
Union's election objections, however, because of
considerable employer misconduct, ordered the
election set aside, and directed a second election.
The Board affirmed. E. A. Nord Co., 276 NLRB
1418 (1985).
The second election was conducted on 4 Decem-
ber 1985. According to the official tally of ballots,
20 votes were cast for the Union, 287 votes were
cast against the Union, and there were 509 chal-
lenged ballots, a number sufficient to affect the re-
sults of the election. No objections to the election
were filed.
Acting pursuant to Section 102.69 of the Board's
Rules and Regulations , the Regional Director in-
vestigated the challenges and, on the entire record,
found that of the 509 challenged ballots at the
second election 464 belonged to economic strikers
who had been engaged in an economic strike for
more than 12 months. The Regional Director, rely-
ing on Gulf States Paper Corp.,3 Wahl Clipper
Corp.,4 and Pacific Tile Co.,5 found that since the
strikers had been engaged in an economic strike for
more than 12 months, they were ineligible to vote
in the rerun election. He therefore sustained the
challenges to their ballots. The remaining 45 chal-
lenged ballots were not determinative. According-
ly, the Regional Director certified the results of the
election, concluding that a majority of the valid
votes plus challenged ballots had not been cast for
the Union.
The eligibility of replaced strikers to vote in a
Board-conducted election is governed by Section
9(c)(3), as amended in 1959. The objective of the
1959 amendment was to eliminate the Taft-Hartley
total prohibition against eligibility for replaced eco-
nomic strikers in representation elections in order
to prohibit unfair "union busting" practices by em-
ployers who under Taft-Hartley could precipitate a
strike for the purpose of replacing strikers, call for
an NLRB election in which the replacements vote
against the union, and thus get rid of the union.,
The House and the Senate adopted different tac-
tics to meet this objective. The proposal passed by
the Senate, substantially identical to the Eisenhow-
3 219 NLRB 806 (1975).
4E 195 NLRB 634 (1972).
e 137 NLRB 1358 (1962).
s Cong Rec July 8, 1959 at 9118 (Senator Goldwater), reprinted in 2
Leg Hist 1290(1) (LMRDA 1959)
119
er administration's proposal on the issue , struck
from Taft-Hartley the prohibition on voting by
economic strikers and directed that they vote
under regulations prescribed by the Board. The
House version contained the Taft-Hartley prohibi-
tion on voting by strikers, but prohibited the hold-
ing of an election on a petition by another union
for 6 months, if recognition was not an issue when
the strike began, and, if the petition for an election
was by an employer, the prohibition was for 12
months.7
In conference, the following language, which
became Section 9(c)(3), was substituted for the
Senate and House proposals:
Employees engaged in an economic strike who
are not entitled to reinstatement shall be eligi-
ble to vote under such regulations as the
Board shall find are consistent with the pur-
poses and provisions of this Act in any elec-
tion conducted within twelve months after the
commencement of the strike.
The Conference Committee's analysis states that
Section 9(c)(3) was amended
. . . so as to permit employees engaged in an
economic strike, even though they have been
replaced, to vote in a representation election,
under regulations promulgated by the Board.
Such strikers are entitled to vote during the
first 12 months after the commencement of the
economic strike. [1 Leg. Hist. at 941.]
The debate preceding this final compromise lan-
guage suggests that the adopted 12-month period
stemmed primarily from two concerns. The first
was the length of time replaced economic strikers
would be vested with the right to vote ' on an equal
basis with replacements and thus empowered to
affect the results of an election.8 The second was
the "factual and practical question of the extent of
the genuine interests of replaced economic strikers
in the issues which will be determined in the elec-
tion." Wahl Clipper Corp., supra at 636.9
7 Cong. Rec Aug. 20, 1959 at 15120 (Senator Goldwater), 2 Leg. Hist
at 1360(3); H.R. Conf. Rep 1147 on S 1555 (Sept. 3, 1959), 1 Leg. Hist
at 941
8 Cong. Rec Apr 21, 1959 at 5731 (Senator Javits), 2 Leg Hist. at
1064(3); Cong Rec. A May 21, 1959 at A 4308 (Congressman Kearns, 2
Leg Hist at 1750(3)).
9 The Employer contends that the reference in Sec 9(c)(3) to "any
election" forecloses the eligibility to vote in all elections outside the 12-
month period, whether'they are first or second elections. The Employer,
however, fails to cite any legislative history in support of this contention.
Further, given that the above-discussed House version prohibited the
filing of petitions during different time periods depending upon the identi-
ty of the moving party, we find it dust as likely that the choice of the
word "any" in the conference language was intended to address the
elimination of these distinctions rather than eligibility in rerun elections
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Senator Javits of New York, a proponent of re-
storing the right of replaced economic strikers to
vote, admitted finding troublesome and difficult the
question how long that right should continue. i 0 He
said,
[u]ltimately we may be receptive to some limi-
tation of time, but the problem of time has not
arisen practically. What has happened practi-
cally is that when an unreasonable time has
elapsed, people float away, and as a practical
matter, are not sufficiently interested to come
forward and vote. [2 Leg. Hist. at 1064 (3).]
On this subject, Senator Case of South Dakota,
said:
I believe everyone would have to admit that if
one loses his right to vote by engaging in a
concerted stoppage of work, the right to strike
has been effectively curtailed, crippled, and
defeated.
However, Senator Case called the time within
which the right to vote may be exercised, a sub-
stantive matter, i i and went on to say:
I do not want them [replaced economic
strikers] to forfeit the right to vote too soon;
but I think there should be a time limit, and in
the absence of any specific provision in the act
it should be clear that the National Labor Re-
lations Board itself should have the right, by
regulation, to prescribe the time within which
the voting right may be exercised. [2 Leg.
Hist. at 1065 (1-2).]
These statements are instructive in formulating a
rule which balances Congress' primary objective to
grant replaced economic strikers the right to vote
in Board elections during the strike with its desire
to impose reasonable time limitations on that right.
Given the concerns which prompted the 12-month
eligibility period, we read 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. To
find replaced economic strikers ineligible to vote in
the rerun of an election held during the 12-month
eligibility period because the rerun election is out-
side the 12-month period would deprive them of
this power. This is so because a rerun election is a
repeat election, standing in the place of another
election which has been tarnished because the con-
ditions denied voters a free choice and thus set
aside. The results of a set-aside election are vacated
and the results of the rerun election, free of objec-
tionable conduct by any party, are substituted for
them. In this case, the vote of replaced economic
strikers, otherwise enfranchised by Section 9(c)(3),
would be nullified and their intended power to
affect the election outcome rendered a fiction
unless they are found eligible to vote in rerun elec-
tions held outside the 12-month period of Section
9(c)(3). Even Senator Case, who, as noted above,
advocated some time limit on the eligibility of re-
placed strikers to vote, indicated "if we deny the
right to vote to economic strikers, we effectively
defeat the right to strike." 12 We will not interpret
Section 9(c)(3) in such a way to defeat the right to
strike by totally denying replaced economic strik-
ers the congressionally vested power to affect the
choice of bargaining representative.
We further find the practical considerations aired
during congressional debates fail to support an in-
terpretation of Section 9(c)(3) that would prohibit
replaced economic strikers from voting in a rerun
election held more than 12 months from com-
mencement of the strike. The legislative history
suggests that Congress sought to select a reasona-
ble time period for holding an election during
which replaced economic strikers would not lose
interest in the election's outcome. Congress select-
ed the 12-month limitation period clearly in the
belief that it represented a reasonable time. Presum-
ably, then, an election conducted within a 12-
month period draws the interest of those potential-
ly affected by the outcome. It is doubtful that re-
placed strikers who have voted in such an election,
when it is set aside, will suddenly lose interest be-
cause the 12-month period of Section 9(c)(3) has
passed. More likely, their interest will be sustained
by virtue of the fact that the election they voted in
does not count and that a rerun election will take
place. Surely, the participation by 464 replaced
economic strikers in the rerun election in this case
evinces an abiding concern in the election's out-
come.
Our interpretation of the 12-month limitation
period of Section 9(c)(3) as not prohibiting re-
placed strikers from voting in rerun elections, such
as the one in this case, is completely consonant
with the voting entitlement mandated by the 1959
amendments and the directive therein that the
Board formulate regulations regarding voter eligi-
bility which "are consistent with the purpose and
provisions of the Act." Recognizing as the thrust
of Section 9(c)(3) that replaced strikers not be dis-
enfranchised, the Board has determined it appropri-
ate to waive its usual practice of declining to direct
an election in the face of unresolved unfair labor
° Cong Rec. Apr 21 , 1959 at 5731, 2 Leg He,t at 1064(3)
Cong ReL Apr 21, 1959 at 5732, 2 Lcg Hhht at 1065(1) 12 Id
JELD-WEN OF EVERETT, INC.
practice charges affecting the unit involved in a
representation proceeding, in order to hold an elec-
tion within 12 months of the beginning of an eco-
nomic strike.13 Here an election was held within
the 12-month period, but because of election mis-
conduct it has been set aside. To formulate in this
circumstance a regulation that would withhold
from the replaced strikers the right of every em-
ployee to participate in an election which reflects a
free and untrammeled choice' 4 because more than
12 months have passed since the strike began,
would give undue significance to the 12-month
period of Section 9(c)(3) while ignoring the strik-
er's more fundamental statutory right to exercise a
free choice.
Further, to hold the strikers ineligible to vote in
the rerun election, the Board would be evading its
statutory duty to' assure that elections are properly
conducted. The Board's general goal in this regard
is to conduct elections under conditions as nearly
ideal as possible to determine the uninhibited de-
sires of employees and to provide "an atmosphere
conducive to sober and inrormed exercise of the
franchise, free not only from interference, restraint
and coercion violative of the Act, but also from
other elements which prevent or impede a reasona-
ble choice." 15 To date, neither the replaced strik-
ers nor any other unit employees have had the ben-
efit of such an environment in which to decide
whether or not they wish to be represented by the
Petitioner. The rerun procedure is routinely used
by the Board to remedy this deprivation of statuto-
ry rights. For the Board to hold that the replaced
economic strikers were not entitled to such an op-
portunity while other unit employees were, would
penalize the economic strikers solely on the basis of
their protected strike activity. Such a holding, in
the absence of an explicit statutory command,
would be inconsistent with the fundamental pur-
poses and provisions of the Act.
Finally, the equities in this situation rest with the
replaced strikers. Their right to vote, unquestioned
in the set-aside election, must not be destroyed by
the misconduct of others--conduct beyond their
control and beyond the permissible bounds this
Board has drawn to assure properly conducted
elections.
Our holding that replaced economic strikers are
eligible to vote in a rerun election held more than
12 months from the commencement of the strike,
when they were eligible to vote in the set-aside
election held within the 12-month eligibility period,
is not inconsistent with Wahl Clipper Corp., supra.
19 See generally American Metal Products Co., 139 NLRB 601 (1962).
14 Dal-Tex Optical Co, 137 NLRB 1782 (1962)
15 Sewell Mfg. Co, 138 NLRB 66, 70 (1962).
121
That case involved a first election, and the Board
held that replaced economic strikers are not eligi-
ble to vote in such an election held more than 12
months after the commencement- of an economic
strike.' 6 The Board there did not consider what, if
any, effect the 12-month eligibility period of Sec-
tion 9(c)(3) should have on the voting rights of
those same strikers in a rerun election.
Nor is our holding inconsistent with the Board's
usual practice of setting the eligibility date for the
rerun election to include all employees in the unit
found appropriate who are employed during the
payroll period ending immediately preceding the
date of the election notice.'' The purpose of estab-
lishing a more current eligibility list, rather then
reusing the list from the original election, is to
adjust for changes in the work force. In this way,
individuals who have voluntarily quit or have been
lawfully terminated, and have no current relation-
ship with the employer, are removed from eligibil-
ity because they have no entitlement to a voice in
the election outcome. In contrast, during an ongo-
ing economic strike, the status of replaced econom-
ic strikers vis-a-vis their employer remains the same
absent affirmative evidence indicating that their
employment has ended. Thus, like those working
behind the picket line during the eligibility period
for the first election, and employed during the eli-
gibility period for the rerun election, replaced strik-
ers must be considered eligible to vote in the rerun
election.
Accordingly, we shall apply the 12-month limita-
tion period of Section 9(c)(3) to the first election
alone, reverse the Regional Director's decision, and
find that these replaced economic strikers are eligi-
ble to vote in any rerun election necessitated by
election misconduct. We would treat the rerun as
merely a subsequent phase of the first election for
purposes of determining the voting eligibility of the
replaced economic strikers. That is, because the
first election was conducted within the 12-month
limitation period, we find that the strikers have met
the requirements of Section 9(c)(3) and are eligible
to vote in any rerun of that election that may be
required.
16 Wahl Clipper Corp., supra at 636; Gulf States Paper Corp., supra at
806.
17 Unlike the instant case, the replaced strikers in Wagner Electric
Corp., 127 NLRB 1082 (1960), were not enfranchised in the set-aside first
election by Sec. 9(c)(3), and the duration of the strike was not a consider-
ation in determining their eligibility to vote in the rerun election, Rather
the strike was an intervening event, precipitated by the Employer's mis-
conduct in the first election, and ending about 5 months later, before the
rerun election took place The Board there declined to use the eligibility
period established for the set-aside election, and sustained the challenges
of the replaced strikers on the grounds that under Sec 9(c)(3) they were
ineligible to vote in the rerun election because the strike had come to an
end prior thereto
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, the case is remanded to the Re-
gional Director who is directed to open and count
the ballots of the economic strikers and to take any
further appropriate action which may be required.
ORDER
It is ordered that this case is remanded to the
Regional Director, who is directed to open and
count the ballots of the employees found to be eli-
gible in accordance with the Board's Rules and
Regulations and a revised tally of ballots issued and
served on the parties. In the event the 45 unre-
solved challenges become determinative, the Re-
gional Director is directed to take any further ap-
propriate action that may be required.