Nate Ben's Reliable, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 818 (N.L.R.B. 1975)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nate Ben's Reliable , Inc. and Carmen Rosavona, Peti-
tioner, and Teamsters Local No. 115, aft hated with
the International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America.'
Case 4-RD-586
July 30, 1975
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The following employees constitute an appro-
priate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All drivers, warehousemen, and helpers of the
Employer at its 2116 to 2120 Mardet Street, Phi-
la., Pa. location, excluding office clerical em-
ployees, all other employees, guards and super-
visors as defined in the Act.
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 4 on Feb-
ruary 12, 1974, an election by secret ballot was con-
ducted on March 12, 1974, under the direction and
supervision of the Regional Director for Region 4,
among the employees in the unit found appropriate.
The tally of ballots showed that 13 ballots were cast,
of which 5 were for the Union, 5 were against the
Union, and 3 were challenged. The challenges are
determinative.
Thereafter, the Employer filed timely objections to
conduct affecting the results of the election. On
March 29, 1974, the Regional Director issued a Sup-
plemental Decision on Objection, Order Directing
Hearing on Challenges in which he dismissed the ob-
jections 2 and ordered a hearing on the three determi-
native challenges. Pursuant to the Regional
Director's order, a hearing was held on June 7, 1974,
before Hearing Officer Joan F. Homer. On August
22, 1974, the Hearing Officer issued a Report and
Recommendations on Challenged Ballots in which
she recommended that the challenges to all three bal-
lots be sustained. Thereafter, the Union filed excep-
tions to the Hearing Officer's report and a supporting
brief; and the Employer filed a brief in support of the
report. On October 4, 1974, the Regional Director
transferred the case to the Board.
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 Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner asserts 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
1 Herein called the Union.
2 The Board denied the Employer's subsequent Motion for Reconsidera-
tion as well as its Motion for Reconsideration of Board 's Denial.
5. On April 5, 1973, the Employer voluntarily rec-
ognized the Union as bargaining representative of
employees in the appropriate unit. Thereafter, the
Employer and the Union bargained over the terms of
an initial collective-bargaining contract, but were un-
able to reach agreement . The Union began an eco-
nomic strike on May 12, 1973. The strike has contin-
ued. On January 7, 1974, the decertification petition
was filed and the election was held on March 12,
1974. The Employer challenged the eligibility of
three strikers-Arthur Fowlkes, Donald Fowlkes,
and Clarence Randolph, Jr.-upon the ground that
on the day of the election they were permanently
employed elsewhere and had disavowed any inten-
tion of returning to work for the Employer. The facts
as to these challenged voters found by the Hearing
Officer are as follows:
Arthur Fowlkes was employed 4 years by the Em-
ployer as truckdriver and furniture carrier and at the
time of the strike was earning $175 to $180 per week.
On October 17, 1973, he was hired as a helper by a
nonunion employer, which knew of his status as a
striker, at a salary of $211 per week. Two weeks later
he was promoted to the position of driver at a salary
of $249 per week. At the time of the election and the
hearing he was still so employed. He testified that he
liked the work at his new employer "a lot better"
than the work at the Employer and that he would
return to work for the Employer only if the settle-
ment of the strike resulted in wages equal to what he
was then earning.
Donald Fowlkes was employed for about 1-1/2
years by the Employer as a warehouseman and
truckdriver's helper. At the onset of the strike he was
earning $2.25 per hour or $90 per week. On Decem-
ber 21, 1973, he was employed by the same employer
which had employed Arthur Fowlkes as a full-time
warehouseman. He continued in this employment
through the date of the election and the hearing. On
the date of the election he was earning $3.50 per hour
or $140 per week. He testified that he would return to
work for the Employer only if a contract was ob-
tained which provided wages and benefits equal to
what he was then receiving.
219 NLRB No. 149
NATE BEN'S RELIABLE, INC. - 819
Clarence Randolph, Jr., worked about 2 years for
the Employer before going out on strike. He was em-
ployed as a truckdriver's helper and was earning
$2.40 per hour when the strike began. On September
3, 1973, he was hired by another employer as a regu-
lar full-time production helper at a starting rate of
$3.94 per hour. He was employed at the time of the
election and the hearing. On election day he was
earning $4.32 per hour. Although Randolph, Jr., tes-
tified that he would go back to work for the Employ-
er if the strike were settled, he indicated that this was
because he believed that a new contract would give
him the benefits he was then enjoying.
Applying the standards of Pacific Tile and Porce-
lain Company, 137 NLRB 1358 (1962), the Hearing
Officer concluded that the three strikers had set such
conditions on their return to work for the Employer
as to lead to the conclusion that they had abandoned
interest in the struck job.
In Pacific Tile, the Board said that a striker may
lose his eligibility to vote "by some action of the
striker himself, such as accepting other permanent
employment, by which he has evinced an intention to
abandon his interest in his struck job regardless of
the outcome of the strike." However, the Board add-
ed that "to facilitate the investigation" of challenges
to a striker's eligibility to vote, the Board will "pre-
sume that an economic striker continues in such sta-
tus and, hence, is eligible to vote under Section
9(c)(3). To rebut the presumption, the party challeng-
ing his vote must affirmatively show by objective evi-
dence that he has abandoned his interest in the
struck job. The nature of the evidence which may
rebut the presumption will be determined on a case-
by-case basis." Here, the Employer introduced evi-
dence that the three challenged voters had obtained
employment elsewhere at salary increases which
ranged from 38 to 80 percent more than they had
received when working for the Employer. They also
testified that they would not return to work for the
Employer at less than they were then receiving. That
the Employer would agree to increase its wage rates
and other benefits to match those which the strikers
were receiving at the time of the election is so highly
improbable as to justify the conclusion of the Hear-
ing Officer that they had in fact abandoned their po-
sitions with the Employer.; The dissent attacks the
reasoning of the Hearing Officer as "speculative"
and "subjective." It seems to us, however, that the
reasoning is the reverse of these characterizations.
When a striking employee testifies that he will not
return to work unless he receives a wage increase of
7 See Roylyn, Inc., 178 NLRB 197, 200-202 (1970) ( Hager , Knapp. and
Van Wagner).
80 percent, the reasonable conclusion of a reasonable
man is that the striker does not intend to return to
work for the struck employer. it is hard to imagine
more objective evidence to support a reasonable con-
clusion. The fact that the strikers continued to sup-
port the strike is objective evidence only that they
desired to help their former fellow employees win the
strike, not that they intended to return to work for
the Employer. Accordingly, we affirm the rulings of
the Hearing Officer that Arthur Fowlkes, Donald
Fowlkes, and Clarence Randolph, Jr., were not eligi-
ble to vote in the election.4
As the Union has not secured a majority of the
valid votes cast, we shall certify the results of the
election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Teamsters Local No.
115, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of Sec-
tion 9(a) of the National Labor Relations Act, as
amended.
MEMBERS FANNING and JENKINS, dissenting:
Our colleagues have determined that Arthur
Fowlkes, Donald Fowlkes, and Clarence Randolph,
Jr., abandoned all interest in their struck jobs and
were not eligible to vote in the election. We disagree.
In our view such findings are contrary to long held
Board precedent.
In Pacific Tile and Porcelain Company (137 NLRB
1358 (1962) ), we held that an economic striker is pre-
sumed to continue in that status, and, therefore, is
eligible to vote under Section 9(c)(3), and "[t]o rebut
the presumption, the party challenging his vote must
affirmatively show by objective evidence that he has
abandoned his interest in his struck job." Id. Evi-
dence that the striker has obtained more remunera-
tive employment in a permanent job elsewhere is not
sufficient to rebut the presumption of 9(c)(3) eligibili-
ty. Pacific Tile, supra at 1362 (employee Kuhlmey);
Akron Engraving Company, Inc., 170 NLRB 232, 233-
234 (1968); Roylyn, Inc., 178 NLRB 197, 202 (1969)
(employee Keith). Finally, this presumption is not re-
butted although the striker has conditioned a return
to his struck job on a satisfactory settlement agree-
ment, which may include a union contract. Akron
Engraving, supra at 234.
4 Contrary to the interpretation by our dissenting colleagues , we are not
hereby modifying the test of Pacific Tile and Porcelain Co, supra, but base
our conclusion on our application of that test to the facts of this case.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In her report , the Hearing Officer found that each
of the three strikers had so conditioned his reinstate-
ment as to lead to the conclusion that he had aban-
doned interest in reinstatement to his job even
though each had expressed a desire to return and, in
the intervening 10 months since the strike , had re-
tained membership in the Union, attended union
meetings , participated in picketing at various times,
taken part in the election , and appeared at the hear-
ing. At the time of the election each striker was earn-
ing substantially more at his new employer than he
was earning at Nate Ben 's at the time of the strike,
and two strikers (Arthur and Donald Fowlkes) stated
they would return on the condition that a strike set-
tlement would result in wages equal to what they
were receiving at their present employer . For Arthur
Fowlkes that meant a 38-percent wage increase, and
for Donald Fowlkes that meant a 55-percent wage
increase . The third striker, Randolph, stated simply
that he would return if the Union had a contract,
even if he did not earn as much as he was making at
his new job at the time of the election . However, the
Hearing Officer inferred that Randolph, who was
now earning 80 percent more than when he was at
Nate Ben's, would not return.
To us, this approach is erroneous and represents
the kind of speculative , subjective reasoning we had
abandoned in Pacific Tile, for it opens the door to a
myriad of other equally important factors ( i.e., se-
niority, pensions , hours, working conditions) which
are all irrelevant to the determination whether by
"objective evidence" the challenging party has affir-
matively shown that the striker has abandoned inter-
est in his old job . To be sure , there are limits to con-
ditions a striker may place on his reinstatement: For
example , the unlawful condition that "all scabs be
fired," or that the incompatibility between a striker
and his supervisors which culminated in the striker's
heart attack be somehow removed , or that a strike
settlement provide that a striker may retire with a
pension after only 6 months after his reinstatement.
See Roylyn, Inc., supra at 200-201 (employees Hager,
Knapp , and Van Wagner). This is poles apart from
the instant case where the strikers ' expectations are
neither unlawful nor patently impossible. In any
event , we feel that the three strikers ' poststrike con-
duct is sufficient objective indicia of their continuing
interest in their old jobs, their lofty hopes for wage
increases notwithstanding, to warrant overturning
the Hearing Officer 's recommendations and counting
their ballots.
Our colleagues ' refusal to do so overlooks the fol-
lowing succinct statement of the statutory policy
which the presumption of continuing job status of
economic strikers is designed to effectuate:
In resolving the issue of striker eligibility, we
have sought to ascertain whether or not the eco-
nomic striker has retained his status as such for
voting purposes . We have held that such status
may be lost , inter alia, by some action of the
striker himself, such as accepting other perma-
nent employment, by which he has evinced an
intention to abandon his interest in his struck
job regardless of the outcome of the strike. [Cita-
tion omitted.] We adhere to this approach be-
cause , in our opinion , it implements the intent of
Congress in its amendment of Section 9(c)(3)
and it best effectuates the policies of the Act.
[Pacific Tile and Porcelain Co., supra at 1359.]
Here the strikers in question all posed outcomes of
the strike under which they would return to work,
which is to say, they continued in their strike in order
to achieve certain economic ends, and they cannot
be said to have abandoned interest in their jobs "re-
gardless of the outcome of the strike." They may or
may not be successful in this endeavor ; their goals
may indeed appear to our colleagues as unrealistic,
but our colleagues' ruling in this case converts the
test from one of abandoning interest in the job re-
gardless of the outcome of the strike to one of aban-
doning interest in the job if under any one possible
outcome of the strike no matter how unfavorable to
his interests the striker would be unlikely to come
back. This we submit turns the test of Pacific Tile on
its head, and severely trenches upon employees' right
to strike , for no employee who goes on strike can say
with certainty that he would go back to work for the
struck employer under any and all possible outcomes
of the strike.