Omahaline Hydraulics Co.

National Labor Relations Board - Board Decisions

Oct 15, 2003

340 N.L.R.B. 916 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
Omahaline Hydraulics Co., a Division of Prince
Manufacturing Corporation, Petitioner and In-
ternational Association of Machinists and Aero-
space Workers, AFL–CIO. Case 18–RM–1355
October 15, 2003
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held March 28, 2002, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 0 votes cast for
and 21 votes cast against the Union, with 35 challenged
ballots.
The Board has reviewed the record in light of the ex-
ceptions and brief, and has adopted the hearing officer’s
findings1 and recommendations.2
The Employer excepts to the hearing officer’s recom-
mendation to open and count the challenged ballots of
employees who had been on strike since May 3, 2001.
The hearing officer found that the strikers were still em-
ployees at the time of the election, and accordingly rec-
ommended that the challenges to their ballots be over-
ruled. We agree with the hearing officer.
On July 20, 2000, the Union was certified to represent
the Employer’s unit employees at its North Sioux City,
South Dakota facility. The unit consisted of about 70 em-
ployees. The Employer manufactured cylinders, pumps,
and motors at that time. The parties commenced negotia-
tions in September 2000 and, although they had more than
50 meetings, they did not reach agreement.
Because of a decline in cylinder orders and the loss of
a major customer, the Employer planned a reduction-in-
force for February 2001.3 In early February, the Em-

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
In addition, the Employer’s exceptions implicitly contend that the
hearing officer’s findings and conclusions demonstrate bias. On careful
examination of the hearing officer’s report and the entire record, we are
satisfied that the Employer’s contentions are without merit.
2 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation to sustain the challenges to the ballots of the
employees who were separated in February 2001 (Craig Culbertson,
Brad Frazee, Cavanall Hoover, Steve Jensen, Ken Krumwiede, Tim
Tomlinson, Kelly Weltz, and Dennis Wynn).
3 All dates are in 2001 unless noted otherwise.
ployer notified the Union that it planned to reduce its
work force by 13 employees, and began conducting
small group meetings with its employees to inform them
of the planned reduction-in-force.4 The 13 employees
considered least qualified by the Employer were selected
for the reduction-in-force, and were given two letters
dated February 23. One letter, signed by Human Re-
sources Director Roberta Piper, informed the affected
employees of their insurance options, vacation settle-
ments, 401(k) availability, and that their final paycheck
would be dated and mailed on March 1. The second let-
ter, signed by General Manager Lynn Dumas, informed
these employees that the reduction-in-force was a result
of the loss of a major customer, that the Employer was
working to regain the lost business, and that “[w]e will
keep you informed.” All 13 of the employees selected
for separation in February 2001 were provided a final
paycheck that included the wage equivalent of any ac-
crued and unused vacation time.5
About May 1, the Employer notified the Union that it
was planning a second reduction-in-force of approxi-
mately 20 employees. After meetings on May 2 and 3 to
negotiate the terms of the second reduction-in-force, the
Union commenced a strike on May 3. About two-thirds
of the Respondent’s existing work force went on strike.
In June, the Employer notified the Union that it de-
cided to implement a change in the “scope and direction”
of its business. Due to space limitations, the Employer
decided to focus on the production of pumps and motors
and to eliminate cylinder production at its North Sioux
City facility. The Employer advised the Union that its
cylinder business would be permanently transferred to
other facilities with excess cylinder capacity. The Union
filed an unfair labor practice charge over this matter,
alleging that the Employer violated Section 8(a)(5) and
(1) of the Act. That charge was investigated and dis-
missed (Case 18–CA–16111–1).6
In July, the Employer transferred the cylinder manu-
facturing equipment from the North Sioux City facility to
its two other facilities and began focusing, at North
Sioux City, exclusively on the production of pumps and
motors. In addition, by purchasing modern machinery
dedicated exclusively to the production of pumps and
4 We correct the hearing officer’s inadvertent reference to “14” em-
ployees who were included on the February 2001 reduction-in-force.
5 The challenges to the ballots of these 13 employees were sustained,
and there are no exceptions to this matter.
6 On October 30, the Regional Director found insufficient evidence
to establish that the Employer had violated the Act. The Regional
Director found that “the evidence established that the Employer’s deci-
sion to transfer all its cylinder production was a change in the nature
and scope of its business and was not a mandatory subject of bargain-
ing.”
340 NLRB No. 104
OMAHALINE HYDRAULICS CO. 917
motors, by cross-training its employees, and by concen-
trating on filling pending orders rather than building in-
ventory for potential sales, the Employer increased pro-
ductivity levels so as to be able to perform all of the
work with the nonstriking employees.
In October, the Union requested that the Employer
provide wage information concerning its employees.
The Employer’s response included wage information for
the striking employees. The Employer refused, however,
to provide the wage information for the employees sepa-
rated in the February 2001 reduction-in-force, taking the
position that it had no obligation to provide information
for these employees because the Employer considered
them to be permanently terminated.
In early February 2002, an employee filed a decertifica-
tion petition (Case 18–RD–2397). In preparation for the
hearing on that petition, the Employer took the position
that both the employees separated in the February 2001
reduction-in-force and the strikers were not eligible to vote
in the election. Thereafter, on February 27, 2002, the Em-
ployer sent the Union a letter stating the following:

In the judgment of the Company, the June 2001 deci-
sion to discontinue cylinder production at the Com-
pany’s facility had the effect of permanently eliminat-
ing the jobs of the February 2001 RIF’s and the strik-
ers. [I]t is the further position of the Company that nei-
ther the February 2001 RIF’s or the strikers have any
reasonable expectation of future employment with the
Company beyond the strike’s end, indeed for all fore-
seeable time . . . . [I]t seems logical to consider their
employment status as terminated and engage in affects
bargaining [sic].

The parties met on March 6 and 7, 2002. At these
meetings, the Union asked about the status of the strik-
ers, and the Employer responded by referring to its Feb-
ruary 27 letter. The Union then requested that the strik-
ing employees be paid any accrued and unused vacation
pay. The Employer responded that they would not be
paid until the Union agreed to a termination date for the
strikers. The Employer proposed a termination date of
July 3, 2001.7 The Union refused to agree to that termi-
nation date, and neither party proposed an alternative
date. The Union then requested that the Employer send a
letter directly to each striking employee informing them
of their status. The Employer refused.
On March 25, 2002, the Employer sent the Union an-
other letter, repeating its position that neither the termi-
nated employees of February 2001 nor the striking em-

7 July 3, 2001, is the date the Employer began removing the cylinder
production machinery from its North Sioux City facility.
ployees have “any reasonable expectation of future em-
ployment with the Company at the strike’s end. . . .
Therefore, it seemed logical to consider their employ-
ment status as terminated.” The parties met again on
March 28, 2002, the day of the election, and the Em-
ployer insisted that it wanted the Union to agree to a ter-
mination date before it would consider paying any vaca-
tion pay to the striking employees.
Based on the foregoing facts, we agree with the hear-
ing officer that the striking employees were eligible to
vote and that their ballots should be opened and counted.
The Board has long held that economic strikers retain
their eligibility to vote in an election absent some af-
firmative action that brings their eligibility to an end. W.
Wilton Wood, Inc., 127 NLRB 1675, 1677 (1960). Fur-
ther, the burden is on the employer to prove that their
jobs have been permanently eliminated. Lamb-Grays
Harbor Co., 295 NLRB 355, 357 (1989). That burden
was not met here.
From the commencement of the strike in May 2001,
through the time of the election, the strikers continued to
be employees of the Employer; at no time during this
period were their jobs in fact eliminated. This is shown
by several facts. First, although the Employer had trans-
ferred its cylinder production equipment in July, it con-
tinued to regard the strikers as its employees. Thus,
when the Employer responded to the Union’s October
request for wage information, it provided information on
both its working and striking employees. Conversely,
the Employer expressly declined to provide information
on the employees separated in February 2001, asserting
that those 13 employees had been permanently termi-
nated. In so doing, the Employer clearly differentiated
between the strikers’ status and those whose employment
it had terminated. Indeed, the Employer made no state-
ment even questioning the strikers’ status as its employ-
ees until a decertification petition was filed several
months later in February 2002.
Second, until the time of the election, the Employer
never sent the strikers a notice of termination, or any
insurance and 401(k) information, as it did to the em-
ployees terminated in February 2001. Rather, the Em-
ployer merely proposed to the Union that they mutually
agree to consider the strikers terminated, and that they
further agree to a termination date.
Third, when the Union requested that the Employer in-
form the strikers of their status, the Employer refused.
Accordingly, in the absence of any affirmative action by
the Employer to effectuate their termination, as com-
pared with the Employers’ clear steps to terminate those
employees it laid off just a few months earlier in Febru-
ary 2001, we find that the Employer failed to meet its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
burden of establishing that the striking employees were
not eligible to vote.
We find this case distinguishable from Lamb-Grays
Harbor Co., supra. There, the Board found that certain
striking employees were ineligible to vote because their
positions had been eliminated for valid economic rea-
sons. In Lamb-Grays, the employer discontinued manu-
facturing operations at one of its facilities during a strike,
informed the union that certain of the striking employees
would not continue to be employed, and stated that these
employees “should consider themselves terminated.”
295 NLRB 355, 356. In sustaining the challenges to the
strikers’ ballots, the Board stated that the employer had
the “burden of showing that the jobs were in fact perma-
nently eliminated,” and found that the employer had met
its burden. Id. at 357.
Unlike the employer in Lamb-Grays, the Employer
here has failed to meet its burden. The Employer did not
inform the Union or the strikers of a decision to termi-
nate; it merely made a proposal to the Union that they
agree that the strikers should be considered terminated, a
proposal that was not accepted by the Union. Further,
when pressed by the Union to inform the strikers of their
status, the Employer refused to do so. Indeed, from early
on, the Employer treated these strikers differently from
the employees it had terminated in February 2001, as
evidenced by the fact that it complied with the Union’s
request to provide wage information about them in Octo-
ber 2001. Thus, up through the date of the election in
March 2002, the Employer was bargaining with the Un-
ion over their terms and conditions of employment. In
view of this conduct, we are unable to find that the Em-
ployer here has, like the employer in Lamb-Grays, met
its burden of showing that the strikers’ jobs were in fact
permanently eliminated.
Our dissenting colleague would sustain the challenges
to the strikers’ ballots. He contends that they are ineligi-
ble because they had no reasonable expectation of recall.
Our colleague has applied the wrong legal standard. Un-
der well-settled precedent, the burden was clearly on the
Employer to show that the strikers’ jobs were “perma-
nently eliminated.” Lamb-Grays, supra. See also Erman
Corp., 330 NLRB 95 (1999) (“Before disenfranchising
employees who might otherwise be eligible to vote, the
employer’s burden is to show that their jobs were per-
manently eliminated.”). As noted, the Employer has
failed to meet this burden.8

8 Our dissenting colleague contends that his finding that the strikers
did not have a reasonable expectation of recall is supported by W. Wil-
ton Wood, supra. He argues that, consistent with W. Wilton Wood, the
Employer here took some affirmative action to bring the strikers’ eligi-
bility “to an end” when it wrote its February 27 and March 28 letters to
Indeed, the Employer has specifically and repeatedly
refused to terminate the strikers (and to pay them accrued
vacation), instead unsuccessfully proposing that the Un-
ion agree to a specified termination date. Although the
Employer apparently wants to have it both ways—refuse
to terminate the strikers, yet make them ineligible9—the
fact remains that the strikers have not yet been termi-
nated, the Employer is continuing to bargain with the
Union over the timing and terms of their termination, and
they remain unit employees, represented by the Union
and with an interest in the outcome of the election. In
the face of all this, the superficial logic of the dissent’s
view (since the strikers apparently are not coming back,
they should not be eligible to vote) disappears. Although
our colleague disputes this characterization of his analy-
sis, his emphasis that an employee’s voting eligibility be
solely determined by whether the employee will be re-
maining in the bargaining unit in the future is in direct
conflict with precedent. See Amoco Oil Corp., 289
NLRB 280 (1988) (employee who had announced his
retirement and had then taken vacation leave for the re-
maining period prior to his retirement was eligible to
vote in an election which occurred before the effective
date of his resignation).
Accordingly, we adopt the hearing officer’s finding
that the strikers’ jobs had not been permanently elimi-
nated, and his recommendation that the challenges to
their ballots should be overruled.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 18 shall, within 14 days from this decision, open
and count the ballots of John Carpenter, Wade Capron,
Scott Frazee, Bruce Gilbertson, Chance Hall, Roger
Hummel, Bob Jensen, Toni Loker, Lake Larson, David
Linn, Chris Mace, Scott Malm, Drake Malm, Paul Mort-
weet, Ryan Nelson, Steve Parent, Mark Pauley, Jeremiah
Reese, Allen Rohan, Terry Rosenbaum, Ben Schrunk,
Ron Sherrill, Mark Sorensen, Shannon Sorensen, Kenny
Swigart, Jesse Whittington, and Troy Wright. The Re-

the Union. As set forth above, however, those letters were merely
unaccepted proposals to the Union that the Union should agree that the
strikers should be considered terminated, and we find, in light of the
surrounding circumstances, that they do not show that the strikers had
in fact been discharged or that their jobs had been permanently elimi-
nated. Therefore, under W. Wilton Wood, the Employer’s letters were
insufficient to bring the strikers’ voter eligibility “to an end.” Accord-
ingly, we find that they remain eligible to vote.
9 Perhaps the Employer wants to wait out the union election: if the
union is defeated, it might terminate the strikers unilaterally and seek to
avoid bargaining over that decision or its effects. But see Government
Employees Local 888 (Bayley-Seton Hospital), 323 NLRB 717, 720
(1997) (employer remains obligated to bargain with the union replaced
by a rival about “unfinished business”).
OMAHALINE HYDRAULICS CO. 919
gional Director shall further prepare and cause to be
served on the parties a revised tally of ballots, and issue
the appropriate certification.

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues and the hearing officer, I
would sustain the Employer’s challenges to the ballots of
the employees who went on strike on May 3, 2001. I
find that the jobs of the strikers were eliminated and they
had no reasonable expectation of recall. Therefore, they
were not eligible voters in the election.
The facts are not in dispute. The Employer made a de-
cision to discontinue the production of cylinders at its
North Sioux City facility. The Employer also made a
decision that it could perform the remaining work with
fewer employees, i.e., the number of nonstriking em-
ployees. There is no allegation that either of the deci-
sions was improperly motivated.
My colleagues have misperceived the issue. The issue
is not whether the employees were terminated. The issue
is whether they had a reasonable expectation of recall.
The principle underlying this issue is the notion that em-
ployees who are not working in the unit and who cannot
reasonably be expected to return to the unit in the future
should not participate in the election to determine
whether unit employees will be represented by a union.
Focusing on that correct statement of the issue, it is
clear that these employees had no reasonable expectation
of recall. To be sure, unlike the 13 employees laid off in
February, the employees involved herein had not been
terminated. That was because the Employer and the Un-
ion had not agreed on a termination date. But, the impor-
tant fact is that they were not going to be recalled. The
Employer made that clear in letters of February 27 and
March 25. Indeed, even the Union was not contesting
this fact. It simply wanted to assure that certain vacation
benefits were paid to these employees and it wanted to
secure a more advantageous termination date. My col-
leagues contend that these letters were mere proposals to
the Union. The contention has no merit. The letters set
forth facts which made it clear that there was no reason-
able expectancy of recall. The proposal was that the
Union agree to a termination date as a condition of re-
ceiving vacation pay.
My colleagues say that the Employer “refused to ter-
minate” the employees. In fact, the parties were negoti-
ating about a termination date. And, the fact that the
Employer supplied information to the Union in October
2001 was part and parcel of those negotiations. Thus,
this was simply a situation where a termination had not
been agreed on. But, it was clear to all that these em-
ployees had no reasonable expectation of recall.
In sum, at the time of the election, there was no rea-
sonable prospect for the recall of these employees. They
were therefore ineligible to vote in that election.
Lamb-Grays Harbor Co., 295 NLRB 355 (1989), sup-
ports my view. The employer there took the position that
jobs were eliminated, and proceeded to support that posi-
tion. The Board held that the employees were ineligible
to vote. Similarly, in the instant case, the Employer has
eliminated the positions. It transferred cylinder manufac-
turing to North Sioux City. With respect to the produc-
tion of pumps and motors, it purchased modern machin-
ery and cross-trained employees. The results of these
decisions were that the Employer no longer needed em-
ployees for cylinder manufacturing, and it could perform
the remaining work with fewer employees. Accordingly,
the employees whose jobs had been eliminated were in-
eligible to vote.
Further, even if the positions were not permanently
eliminated, the fact remains that the employees herein
did not have a reasonable expectancy of recall. The Em-
ployer twice told the Union that the employees had no
reasonable expectation of recall. There is nothing to con-
tradict that statement. Consistent with W. Wilton Wood,
Inc., 127 NLRB 1675, 1677 (1960), the Employer took
affirmative action in the letters of February 27 and March
28 to notify the Union of the job elimination and to dem-
onstrate that voting eligibility of the affected employees
had come to an end.1 Finally, my colleagues say that I
have used “superficial logic.” I believe that it is neither
superficial nor illogical to say that an employee who has
no reasonable expectancy of recall should not have a
voice in selecting or rejecting a representative for the
unit. That important decision is for the employees who
remain and will be directly affected by it. My colleagues
have erroneously asserted that my position is contrary to
Amoco Oil Corp., 289 NLRB 280 (1988). That case is
clearly distinguishable because the employee at issue
there was on vacation leave at the time of the election,
and intended to stay on vacation until the effective date
of his retirement. An employee who is on vacation is
quite unlike an employee who is not working because
there is no work for him to perform. The former em-
ployee has chosen to be absent, i.e., to receive the em-
ployee vacation benefit of being paid while being absent
from work. If he occupies that status at the time of the
election, he is eligible to vote. And, the fact that he will
thereafter cease to be an employee does not destroy that

1 Although the Board in Wood listed job elimination as one of the
ways in which a striker loses eligibility to vote, the Board made it clear
that its listing was not an exhaustive one. Similarly, Ermon Corp., 330
NLRB 95 (1999), says that “if the employee is otherwise eligible,” the
employer must show job elimination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
eligibility. By contrast, the employees here were invol-
untarily not working because there was insufficient work
for them to perform. They were not being paid for this
absence. That was their status at the time of the election,
and there was no reasonable prospect for their being rein-
stated.