Levitz Furniture Co.

National Labor Relations Board - Board Decisions

Mar 3, 1980

248 N.L.R.B. 15 (N.L.R.B. 1980)

LEVITZ FURNITURE COMPANY I5
Levitz Furniture Company of the Eastern Region,
Inc., Employer-Petitioner and Retail Clerks and
Store Employees Union Local 1361 a/w
U.F.C.W.-AFL-CIO-CLC. Case 4-RM-983
March 3, 1980
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on October 11, 1979,1
and the Regional Director's report, pertinent por-
tions of which are attached hereto, recommending
disposition of same. The Board has reviewed the
record in light of the exceptions and briefs, and
hereby adopts the Regional Director's findings and
recommendations.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Retail Clerks and
Store Employees Union Local 1361 a/w
U.F.C.W.-AFL-CIO-CLC, and that said labor
organization is not the exclusive representative of
all the employees, in the unit herein involved,
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
CHAIRMAN FANNING, dissenting:
For the reasons stated in my dissent in Wahl
Clipper Corporation, 195 NLRB 634, 636-638
(1972), I would not adopt the Regional Director's
recommendation that the challenges to the ballots
of Samuel Fink and Ralph Werner be sustained. As
I emphasized in Wahl Clipper, supra, the issue
which should be considered by the Board in cases
such as this is whether replaced strikers have a rea-
sonable expectancy of future employment. Inas-
much as the Regional Director failed to consider
this issue, I would remand this case for a determi-
nation of this question.
The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was: eight votes for, and eight
against, the Union: there were two challenged ballots.
APPENDIX
The Employer challenged the ballots of Samuel Fink
and Ralph Werner on the ground that they were not em-
ployed during the eligibility period. The facts with re-
spect to the challenged voters are undisputed. The Union
248 NLRB No. 3
has represented a unit of Sales Associates at the Employ-
er's Whitehall, Pennsylvania facility for some time and
the parties have entered into a series of collective bar-
gaining agreements, the last such contract having expired
July 10, 1979. During this time, the Union has also repre-
sented a separate unit of Warehouse Associates at the
same facility under separate collective bargaining agree-
ments. The Labor agreement covering the Warehouse
Associates expired on August 14, 1977. After negotia-
tions to reach a new agreement failed, the Warehouse
Associates commenced a strike on September 17, 1977.
Thirteen Sales Associates scheduled to work that day de-
clined to cross the picket line established by the striking
Warehouse Associates and did not report to work.
Thereafter, the Employer urged the Sales Associates
honoring the picket line to return to work, contending
that their work stoppage was prohibited by the no-strike
clause in their contract. On September 19, 1977, the Em-
ployer advised the employees and the Union that it in-
tended to hire permanent replacements for the Sales As-
sociates who had not returned to work.
Prior to October 15, 1977, the Employer hired eight
permanent replacements. On October 15, the thirteen
Sales Associates who had declined to cross the Ware-
house Associate's picket line since September 17, 1977,
sought to return to work. The Employer then reinstated
three Sales Associates to their prior positions. The re-
maining Sales Associates were placed on a preferential
hiring list. Of the ten Sales Associates placed on the list
only three remain as of this date. The others were either
offered reinstatement or affirmatively severed their em-
ployment with the Company. The last two offers of
recall from the preferential hiring list occurred in Febru-
ary 1979. Samuel Fink and Ralph Werner are still on the
preferential recall list.
The Employer contends that Fink and Werner must be
viewed as replaced economic strikers whose eligibility to
vote in an election is restricted to a 12-month period fol-
lowing the commencement of the strike, in accordance
with Section 9(c)(3) of the Act. The Union argues that
the eligibility of "sympathy" strikers is not the same as
that of economic strikers, and that Fink and Werner are
eligible to vote based upon a reasonable expectancy that
they will be recalled to their former positions.
The Board has held that employees respecting the
picket line of employees engaged in an economic strike,t
where the picket line was located at the Employer's own
place of work, have the same status as the strikers with
whom they sympathize. American Telephone & Telegraph
Co., 231 NLRB 556; Southern Greyhound Lines, 169
NLRB 627; Canada Dry Corporation, 154 NLRB 1763. In
such circumstances, where the activities of those striking
in sympathy with economic strikers were found to be
protected, the Board has viewed sympathy strikers to be
in a position "equivalent" to that of the economic strik-
ers they support. Southern Greyhound Lines, supra.
As noted earlier, the sympathy strike of the Sales As-
sociates continued only until October 15, 1977, at which
time they sought to return to work and those who were
Neither of the parties to this proceeding has contended that the pri-
mary dispute was other than economic in nature
LEVITZ FURNITURE COMPANY s
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not immediately reinstated were placed on a preferential
hiring list. Section 9(c)(3) of the Act provides that re-
placed economic strikers remain eligible to vote in an
election conducted within a 12-month period following
the commencement of the strike. Tractor Supply Co., 235
NLRB No. 53; L.E.M., Inc. d/b/a Southwest Engraving
Co. and Towell Printing Co., 198 NLRB 694. However,
replaced strikers are not eligible to vote in an election
held more than 12 months after the commencement of an
economic strike, even if they are entitled to reinstate-
ment after the departure of the replacements. Wahl Clip-
per Corporation, 195 NLRB 634. As the strike herein
commenced over two years prior to the date of the elec-
tion, I find that replaced strikers Samuel Fink and Ralph
Werner were ineligible to vote.