Pacific Tile and Porcelain Co.

National Labor Relations Board - Board Decisions

Jul 17, 1962

137 N.L.R.B. 1358 (N.L.R.B. 1962)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable to infer that the Respondents must have, on some date prior thereto,,
agreed to abide the results of the card check conducted by them on .that date.
In arriving at the findings and conclusions on which my recommendation herein
is based , I have carefully considered all of the evidence adduced at the bearing and
base my findings and recommendation on the entire record in these cases.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
Since the allegations of the complaint , in these cases , on which the jurisdiction
of the Board is predicated , are admitted by the answers of the respective Respond-
ents and/or by the stipulation of all of the parties , I find that the Respondent
Employers are engaged at St. Louis, Missouri , and elsewhere in the operation of
retail department stores, that each of them has annual gross sales in excess of
$500,000 and an inflow, in interstate commerce , of goods and merchandise of a
value in excess of $50,000 which goods and merchandise are shipped to them di-
rectly from origins outside of the respective States wherein their retail stores are
located and that during the 12 months prior to January 5 , 1962, the Respondent
Employer GEM International , Inc., in the conduct of its said business operations,
transported or caused to be transported from one State to another goods and ma-
terials of a value in excess of $50,000.
1 find , therefore, that each of the Respondent Employers is engaged in "commerce"
and/or in business operations "affecting commerce" as those terms are defined in
Section 2(6) and (7), respectively , of the Act and that it will effectuate the purposes
and policies of the Act to assert the Board 's jurisdiction in these cases over all of the
Respondents including the Respondent Union.
H. THE LABOR ORGANIZATIONS INVOLVED
The General Counsel alleged and all of the Other parties to these cases admitted
and I find that the Charging Party and the Respondent Union herein are "labor
organizations" as that term is defined in Section 2(5) of the Act.
CONCLUSIONS OF LAW
1. On the basis of the foregoing discussions and findings , I conclude that none
of the Respondent Employers has violated Section 8 ( a)(1), (2), and/or (3) of
the Act as alleged in the complaint herein.
2. On the same basis I conclude that the Respondent Union has not violated Sec-
tion 8 (b) (1) (A) and /or (2) of the Act as alleged in said complaint.
RECOMMENDED ORDER
1 therefore recommend that the complaint herein be dismissed in its entirety.
Pacific Tile and Porcelain Company and Theodore J. Theodoroff,
Petitioner and Local 487, United Brick and Clay Workers of
America, AFL-CIO. Case No. 21-RD-555. July 17, 1962
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Twenty-first Region on June 27, 1961, an
election by secret ballot was conducted on July 21, 1961, under his
direction and supervision, among the employees in the appropriate
unit. Upon the conclusion of the balloting the parties were furnished
with a tally of ballots which showed that of approximately 275 eligible
voters , 17 cast valid ballots, of which 7 were for, and 10 against, the
Union, and 251 cast challenged ballots.
137 NLRB No. 169.
PACIFIC TILE AND PORCELAIN COMPANY 1359
The Regional Director investigated the challenges and on Octo-
ber 6, 1961, issued his report on challenged ballots in which he recom-
mended that 166 of the challenges be overruled, and 13 be sustained,
and he made findings of fact but no recommendations as to the 72
remaining challenges. The Employer and the Union filed timely ex-
c6ptions to the Regional Director's report.
The Board has considered the Regional Director's report and the ex-
ceptions thereto, and upon the entire record in this case makes the
following findings :
The Union instituted an economic strike against the Employer on
May 3, 1961. On the election date, July 21, 1961, the strike was still
current. The 251 ballots challenged in the election were cast by alleged
economic strikers and replacements.
The Employer's and Union's exceptions to the Regional Director's
report on challenged ballots point up the need for clarification of our
policy as to the eligibility of economic strikers and their replacements.'
In resolving the issue of striker eligibility, we have sought to ascer-
tain whether or not the economic 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
permanent employment' by which he has evinced an intention to
abandon his interest in his struck job regardless of the outcome of the
strike.2 We adhere to this approach because, in our opinion, it imple-
ments the intent of Congress in its amendment of Section 9 (c) (3) and
it best effectuates the policies of the Act.
However, our experience with issues of this character reveals that
the attempt to determine the subjective intent of individuals creates
investigatory and decisional problems which are most difficult and
which frequently cause extensive delay. Moreover, we are aware that
subjective intent at a specified time in the past may well not actually
be known at the time of the investigation even to the individual con-
cerned. Therefore, to facilitate the investigation of such challenges,
we will presume that an economic striker continues in such status and,
hence, is eligible to vote under Section 9(c) (3). To rebut the pre-
sumption, the party challenging his vote must affirmatively show by
objective evidence that he has abandoned his interst in his struck job.
The nature of the evidence which may rebut the presumption will be
determined on a case-by-case basis. However,. acceptance of other
employment, even without informing the new employer that only tem-
porary employment is sought, will not of itself be evidence of abandon-
'See W. Wilton Wood, Inc., 127 NLRB 1675; and National Gypsum Company, 133
NLRB 1492.
2 See W. Wilton Wood , Inc., supra (DeRiso, Young, Malone, Jos , and Massalone)
H & M Knitting Mills, Inc., 128 NLRB 361 (Fuller).
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the struck job so as to render the economic striker ineligible
to vote.'
Furthermore, for like reasons, the Board will presume that replace-
ments for economic strikers are permanent employees and eligible to
vote. As in the case of replaced strikers, the party challenging the
eligibility of a replacement shall be required, in order to rebut the
presumption, to establish by affirmative, objective evidence that the
replacement was not employed on the struck job on a permanent basis.
Again, the nature of the evidence which may rebut the presumption
will be determined on a case-by-case basis.
We turn now to our consideration of the challenges of the economic
strikers and replacements here involved.
Replaced Strikers (Schedule A) 4
We adopt the Regional Director's recommendation that the chal-
lenges to the ballots of 36 strikers listed in Schedule A be overruled.
In the absence of any specific evidence to support the Employer's al-
legation that some of these strikers even obtained permanent employ-
ment elsewhere, we cannot conclude that the presumption of continued
eligibility has been rebutted. Accordingly, its exceptions are rejected
and its request that a hearing be held to resolve such issues is denied.
Strikers Who Applied for Reinstatement (Schedules B and C)
The Regional Director made no recommendations as to the disposi-
tion of the challenges to the ballots of the 72 strikers listed in Sched-
ules B and C. He found that these strikers presented themselves to
the Employer on July 13 or 14, 1961, and asked for their struck jobs.
They were told they had been permanently replaced but were asked
if they wished to have their names placed on a hiring list for future
employment, as there were no job openings at the time.
The Employer contends that acceptance of this offer on the part
of the strikers amounted to an abandonment of the strike. The Union
asserts, and it is not contradicted, that the only reason for the action
of these strikers in placing themselves on the Employer's hiring list
during the strike was to qualify for unemployment compensation
under State law, which provides that replaced strikers who are de-
nied reemployment are eligible to receive compensation 5
We find, in the circumstances, that the 72 strikers did not abandon
their status as strikers by asking to be returned to their jobs and plac-
3 As to the cases of Horton's Laundry, Inc., 72 NLRB 1126 , and Remington Rand, Inc ,
74 NLRB 447, relied upon by the Employer in its exceptions, they are hereby overruled
to the extent that they are inconsistent with the approach we have adopted for the resolu-
tion of the issues under discussion
4 Schedules A through I are attached hereto
5 Section 1262, California Unemployment Insurance Code.
PACIFIC TILE AND PORCELAIN COMPANY 1361
ing themselves on a hiring list for future openings. The challenges to
the ballots of these strikers are therefore overruled.
The following six strikers listed in Schedule B also appear in Sched-
ule C and were challenged by the Employer on the further ground that
they had taken permanent employment elsewhere prior to the election.
The Regional Director found that one of the six, De LaRoi, obtained
temporary employment with the Union as a business representative.
The parties now agree that lie was an eligible voter and we so find. His
challenge is therefore overruled. We also find that the Employer has
failed to supply such objective affirmative evidence as would support
its contention that McKnight, Mummery, Robinson, and Greholver
abandoned their jobs, thus rebutting the presumption of their continu-
ing eligibility. The facts as to each are set forth below. Although
the investigation revealed that each told his new employer that he
intended to return to his old job or stated during the investigation that
he intended to return despite the fact his new employer thought he was
hired permanently, and continued to perform picket duty after obtain-
ing the new job, we do not base our conclusions on these facts and
would reach the same result if these facts did not appear.
McKnight worked as a general helper for another company from
May 22 to June 5, 1961, when he was terminated for lack of work.
The other company intended his employment to be permanent and the
pay was substantially higher than he received on his struck job.
Mummery worked for another company from May 10 to July 14,
1961, when he was laid off for lack of work. The company hired him
as a permanent employee. After the election he turned down an offer
of reemployment as a new hire from the Employer.
Robinson began to work for another employer on May 22, 1961, at
the rate of $1.55 an hour. His prestrike rate was $2.05 an hour. His
new employer hired him as a permanent employee.
Greholver obtained full-time regular employment with a supply com-
pany on June 28, 1961, and in connection with his new employment
signed an insurance application on which was inscribed "Only perma-
nent employees are eligible." About September 18, 1961, he left his
home, family, and employment without leaving word as to his future
plans.
As we have found that the presumption of eligibility of these five
persons has not been rebutted, we find they were eligible to vote as
economic strikers and the challenges to their ballots are overruled.
Matcham started work for another employer on June 22, 1961, as a
machinist trainee at $1.75 an hour, and he subsequently received ^ n-
creases. Prior to the strike he earned $2.18 an hour as a spray opera-
tor but had been told that the Employer intended to transfer him to
its machine shop where he would have earned $2.34 an hour. Accord-
649856-63-voL 137-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to the Regional Director's report, Matcham stated that he intends
to complete the 2,year training program under which he was employed
but would accept an offer of a machinist job from the Employer. As
we cannot, upon the facts reported, determine Matcham's status on
the election date, we shall defer any resolution of the challenge to his
ballot until after the opening and counting of the challenges which we
overrule herein. If at that time Matcham's challenge can affect the
results, the Regional Director shall make a further investigation and
report thereon.6
Other Strikers Who Allegedly Took Other Permanent Employment
(Schedule D)
The 11 strikers listed in Schedule D were challenged by the Em-
ployer on the ground that they took permanent employment else-
where and thereby abandoned the strike. The Regional Director con-
cluded that of these strikers, Buffington and Stoner had abandoned
the strike by taking permanent jobs elsewhere and that the remaining
nine had not. As the parties did not except thereto, we adopt pro
forma the recommendation that the challenge to Buffington's ballot be
sustained, although we might reach a different conclusion based on
the presumption of eligibility. The Union excepted to the recom-
mendation to sustain Stoner's challenge and the Employer excepted to
the recommendations to overrule the remaining nine challenges. The
report reveals that all 10 of them took employment elsewhere during
the strike. One of them, Merino, took a temporary job which ended
before the election. Crane told his employer he was on strike and
might return to the struck employer after the strike. Striker Key
did independent contractor work. Striker Kuhlmey told his new
employer he was looking for permanent employment, made no men-
tion of the strike, and took a permanent position as a laboratory tech-
nician paying $10 per month more than he received on the average for
his struck job as a clay mixer operator. Striker Majesky on August 1,
after the election, announced to his supervisors at his new job that
he would remain as a new employee if they would have him. Strikers
Richardson and Van Eede were considered by their new employers
as permanent. Striker Stoner at the time of his new employment,
signed an application form for insurance on which is inscribed, "Only
permanent employees are eligible," and he was considered permanent.
Striker Theodoroff took a job with a contractor as an electrician ap-
prentice paying 66 cents per hour more than his struck job and he
continued there until work ran out shortly after the election. Striker
Vander Ham was not asked his intentions as to his struck job.
a Members Rodgers and Leedom would find that Matcham abandoned his struck job and
no longer had the status of an economic striker on the election date.
PACIFIC TILE AND PORCELAIN COMPANY 1363
Upon the foregoing facts we conclude that the presumption of con-
tinued eligibility has not been rebutted and all 10 of these strikers,
notwithstanding their employment with other employers, retained
their status as strikers on the date of the election and were eligible
to vote. As in the case of the strikers listed in Schedule C, some
of these men said they intended to return to their old jobs and con-
tinued to picket. However, we would not reach a different con-
clusion if these facts did not appear.
Permanent Replacements Hired On or Before the Eligibility
Payroll Date (Schedule E)
The Union challenged the 104 voters listed in Schedule E on the
ground that they were not permanent replacements for economic
strikers. The Regional Director found that they were all hired before
the eligibility payroll date, June 25, 1961, and were told that their
positions were permanent, and he concluded, in the absence of evi-
dence to the contrary, that they were permanent replacements. We
agree, except as to Nagel, Rios, and Nolan, discussed below, and would
so find based on the presumption of permanent replacement even if
they had not been told they were permanent.
In its exceptions, the Union contends, as to all of them, that the
Employer did not consider them to be permanent replacements until
they had demonstrated satisfactory performance of the jobs and that
its decision to consider them as permanent was not made until after
the election. We find no merit in this contention as the requirement of
completion of a probationary period does not militate against a finding
that employees are permanent 7
The Union also contends that three of this number, Nagel, Rios, and
Nolan, were in any event casual and temporary employees, and it al-
leges facts which would support such contention. In view of such
allegations raising an issue not covered by the above presumption and
unrelated to the eligibility of strikers and replacements, we believe
that a determination as to the status of these three replacements cannot
be made without a further investigation. However, we shall direct
that such investigation be conducted only in the event that these three
challenges are sufficient in number to affect the election results as
shown by the revised tally of ballots to be prepared by the Regional
Director pursuant to the direction below.
In view of the foregoing, we adopt the Regional Director's recom-
mendations to overrule the challenges to the ballots of all those listed
in Schedule E, except Nagel, Rios, and Nolan.
7 See Columbia Picture8 Corporation, et at., 64 NLRB 490.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Replacements Hired After the Eligibility Date but Prior
to the Election (Schedule F)
The Regional Director recommended that the challenges to the bal-
lots of the six replacements listed in Schedule F be overruled on the
basis that they commenced working prior to the election date and
under the broad dictum of Tampa Sand c Gravel Company, 129
NLRB 1275, were eligible to vote. The Union contends that Tampa
Sand is distinguishable on its facts and that under normal eligibility
rules , as these replacements were not employed on the eligibility date,
they were ineligible to vote. In Greenspan Engraving Corp., 137
NLRB 1308, just issued, involving a like issue as to the eligibility
of replacements, the Board found merit in a similar contention and
overruled its policy in Tampa Sand to the extent it was inconsistent.
Therefore, we do not adopt the Regional Director's recommendations
and we hereby sustain the six challenges involved.'
Replacements Alleged as Not Permanent (Schedule G)
Of the 17 challenged voters listed in Schedule G, the Regional Di-
rector found that six of them, Alixopoulos, Alper, Cox, Garcia, Lei-
brock, and Sears, were students on summer vacation who so advised
the Employer at the time they were employed and were therefore not
permanent replacements; and that six others, Cole, Reynolds, Smith,
Keys, Mann, and Morriss, for various reasons, were employed with the
expectation of being permanent replacements. In the absence of ex-
ceptions thereto, his recommendations that the first six be sustained
and that the latter six be overruled are adopted pro forma.
The Regional Director found that the remaining five listed, Crabb,
Duray, Owens, Young, and Vander Meulen, were students who did not
so inform the Employer at the time of their hire, that all but Vander
Meulen in fact quit their employment before the new school term in
order to continue their studies, that Duray did not intend to renew
his studies until he learned, after his employment, that he had been
granted a scholarship, and that Vander Meulen did not quit his em-
ployment but, at the end of the summer, went on night shift as a regu-
lar part-time employee. On these facts, the Regional Director con-
cluded that these five were permanent replacements and recommended
that their challenges be overruled. The Union excepted thereto. It
contends that, under Board precedents," students employed during
summer vacation and who intend to return to school are ineligible to
vote and that their status should not be affected by failure to announce
such intent to their employer. We find merit in this contention, which
8 Members Rodgers and Leedom , consistent with their dissent in Greenspan , would ad-
here to Tampa Sand and find these six replacements eligible to vote.
8 Agar Packing & Provision Corporation , 62 NLRB 358, 361 ; Johnson-Handley-Johnson
Company, at al., 51 NLRB 1282.
PACIFIC TILE AND PORCELAIN COMPANY 1365
involves an issue not related solely to striker replacements (although
raised in that context here) and hence is not covered by the presump-
tion of permanent replacement. Under our policy, students employed
during summer vacation periods are considered temporary employees
and are excluded from bargaining units.10 Applying this policy
herein, we conclude that Crabb, Owens, and Young were temporary
employees. We therefore sustain the challenges to their ballots. As to
Duray and Vander Meulen, the Union's exceptions raise issues of fact
which require further investigation, and, as in the case of the four
other unresolved challenges previously discussed, we shall instruct
the Regional Director to make such investigation, if necessary, at a
later stage in the proceedings.
Employees Not on the Eligibility List (Schedule H)
The Regional Director found that Baker and Murphy, listed on
Schedule H, whose terminations were the subject of pending grievances
at the time the strike began, were ineligible to vote because they had
not been reinstated by the eligibility date for the election, and he
recommended that their challenges be sustained in accordance with
prior Board cases. These two men were discharged prior to the eligi-
bility date. Their terminations were processed through the first two
steps of the grievance procedure, with the Employer rejecting rein-
statement at both stages, and a third-step grievance conference was
scheduled for May 1, 1961. The Union asserts that its representative
appeared at the Employer's office for the meeting on that date but
was told that it was too late in the afternoon and another date would
have to be set. The Union further claims that before the new meeting
date could be scheduled the strike occurred and these grievances have
been held in suspension pending determination of the strike. In view
of these facts, we are unable to determine the status of the grievance
proceedings or of the two individuals on the eligibility and election
dates. Accordingly, we shall defer ruling on these two challenges."
If their votes become determinative after the revised tally has been
prepared, the Regional Director, if he deems it necessary, shall make a
further investigation and report as to the above matters.
Contrary to the view of our dissenting colleagues, the processes of
the Board are not involved in extraneous matters by reason of our
decision herein. Nor do we forsee the possibility that this will result
in extreme delay or confusion in resolving questions of representation.
The question of eligibility is certainly not "extraneous." The fact
that the eligibility of individuals may turn on some question other
than an employer's alleged unfair labor practices is immaterial. The
io See Massachusetts Institute of Technology (Lincoln Laboratory ), 110 NLRB 1611;
Home Brewing Company, Incorporated , 124 NLRB 930.
11 Dura Steel Products Company, 111 NLRB 590, and similar cases are overruled to the
extent they are inconsistent herewith
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sole issue is whether the individuals were employees within the unit on
the critical dates. A grievance determination favorable to the union's
position in cases of this type will result in a holding that the disputed
men were employees on the critical dates, while a contrary determina-
tion will result in a finding that they were not. Any such award
would have an impact on the election only in the event the votes could
be determinative, but if they could affect the results it would be im-
proper for the Board to disenfranchise the men out of hand.
The approach taken in the dissenting opinion would make employee
status depend upon the filing of a charge. But such status in reality
depends on many factors other than the occurrence of unfair labor
practices, most of them outside the Board's processes.
Examination of the Board's reported cases reveals none but Dura
Steel involving grievance proceedings 12 and in that case there were
also unfair labor practice charges which had been dismissed by the
General Counsel. However, many cases not reported in printed vol-
umes of Board decisions have presented such facts. In rejecting the
pendency of a grievance or arbitration proceeding as a ground for
permitting discharged persons to vote by challenged ballots, the
Board has uniformly relied on Times Square Stores Corporation, 79
NLRB 361, or other similar cases. The Times Square case involved
alleged unfair labor practices by the Employer which had been the
subject of charges dismissed by the General Counsel. No grievance
or arbitration proceedings were pending or involved in any way.
The Board there held that it could not in a representation proceeding
make an independent determination as to whether an unfair labor
practice had occurred because an initial finding thereof could be
made only in an unfair labor practice proceeding and the General
Counsel has final authority under the Act to determine whether to pro-
ceed on a charge. Accordingly, where such allegations are asserted
in a representation case as a ground for finding individuals eligible,
the Board holds the individuals ineligible unless a charge is pending
which has not been disposed of by the General Counsel. We agree
with that procedure and adhere to it. However, the rationale upon
which it is based is not applicable to pending grievances which have
not been made the subject of charges and which do not depend upon
the General Counsel for disposition. The Board has never set forth
its reason for applying the same rationale to these different situations,
12 Nor does the dissenting opinion cite any such cases . hfinneapohs Knitting Works,
84 NLRB 826 , which appears to be in point from the portion quoted in the dissent, is
inapposite in fact That case involved an alleged improper discharge at the union's re-
quest under an existing union-security clause but no grievance proceeding was involved.
It is thus clear that any finding of improper discharge would require a finding of an un-
fair labor practice. An additional contract clause was also involved , and the Board ex-
pressed an objection to the necessity for interpreting that provision as being beyond the
scope of its function However, this objection is not present where , as here, a grievance
proceeding is pending and any interpretation of the contract will be made by someone
whose function it is to do so.
PACIFIC TILE AND PORCELAIN COMPANY 1367
and we see no valid basis for doing so. Accordingly, we have modified
the existing rule to this extent.
The Board has long followed the procedure of permitting employees
to vote by challenged ballot where their eligibility could not be deter-
mined on the record before it. These challenged ballots have been
ruled on only where the results of the election have been so close that
the challenges were determinative. However, it has been our ex-
perience that this practice has resulted in only a minimal number
of cases being held up pending a final ruling on the eligibility of such
persons. By far the greater number of cases have been resolved with-
out the necessity for ruling on their eligibility. It is our belief that
the rule we now adopt will achieve the same result.
Reassigned Employees (Schedule I)
The Regional Director found that Ingalls, Maxey, and Toothman,
listed in Schedule I, prior to the strike were employed as laboratory
technicians, a classification excluded from the unit, that they were
transferred to production immediately upon commencement of the
strike, and that after the election they were transferred back to
laboratory work. Upon these facts, he concluded that they were not
permanent replacements and recommended that their challenges be
sustained. As these were not newly hired employees to whom the
presumption of permanent replacement would apply, and as the Em-
ployer's exceptions raise no issues warranting a different result, we
adopt the Regional Director's recommendations.
Accordingly, as we have overruled the challenges to 224 ballots, as
identified below, we shall direct the Regional Director to open and
count them and to prepare a revised tally of ballots.
[The Board directed that the Regional Director for the Twenty-
first Region shall, within 10 days from the date of this decision, open
and count the ballots of the following voters : (1) All those listed in
Schedule A; (2) all in Schedule B and C, except Arthur Matcham;
(3) all in Schedule D, except Robert Buffington; (4) all in Schedule
E, except Karen Nagel, Peter Nolan, and Joe Rios; and (5) Bernice
Cole, Linda Keys, Joy Mann, Leslie Morriss, John Reynolds, and
James Smith listed in Schedule G; and serve upon the parties a revised
tally of ballots, including therein the count of said ballots. In the
event that the ballots of Arthur Matcham, Karen Nagel, Peter Nolan,
Joe Rios, Paul Duray, Richard Vander Meulen, Cecil Baker, and Wil-
liam Murphy are not sufficient in number to affect the outcome of the
election as shown by the revised tally, the Regional Director shall
issue the appropriate certification in accordance with the Board's
Rules and Regulations.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board further directed that if the eight unresolved challenges
are sufficient in number to affect the results as shown by the revised
tally of ballots, the Regional Director, to the extent that he deems it
necessary to determine the election results, shall conduct a further in-
vestigation and submit a supplemental report with findings and recom-
mendations as to their disposition. Within 10 days from the date of
the issuance of such report any party may file with the Board in
Washington, D.C., an original and six copies of exceptions thereto.
Immediately upon the filing of such exceptions the party filing the
same shall serve a copy thereof upon each of the other parties, and
shall file a copy with the Regional Director. If no exceptions are filed
thereto, the Board will adopt the recommendations of the Regional
Director.
[The Board referred the above-entitled matter to the Regional Di-
rector for the Twenty-first Region for further proceedings consistent
herewith.]
MEMBERS RODGERS and LEEDOM , dissenting in part :
By its decision herein, the majority is overturning the Dura Steel
case. That case, which has served as sound precedent for more than
two decades, holds that in determining voter eligibility a discharge
will be presumed to have been for cause, unless a charge alleging a
violation of Section 8(a) (3) has been filed with this Agency.13 The
majority is setting aside the clear and workable Dura Steel rule and
replacing it with a rule geared to "pending grievances" whatever that
may mean. Needless to point out, this uncertain and unworkable ap-
proach has been repeatedly rejected by the Board over the years.
In the instant case, Baker and Murphy, the two individuals in-
volved, were both discharged before the petition was filed, neither had
been reemployed on the controlling eligibility or election dates, and
no charge with respect to the discharge of either had ever been filed
with this Agency.14 Nevertheless, because their discharges were the
subject of "pending" grievance procedures which might result in their
'$ Dura Steel Products Company, 111 NLRB 590; The American National Company,
27 NLRB 22 , and cases cited in the Sixth Annual Report ( 1941 ), pp 57-59 See also,
for example , Stainless Welded Products , Inc, 104 NLRB 204; Minneapolis Knitting
Works, 84 NLRB 826, 830; The Geinex Corporation , 117 NLRB 656, Continental Baking
Company, 122 NLRB 1074 ; Vent Control, Inc., of Ohio , Subsidiary of Air Control Prod-
ucts, Inc, 126 NLRB 1134 ; Vogue Art Ware & China Company, 129 NLRB 1253, 1256.
14 There is a serious question of fact as to whether the discharges of Baker and Murphy
were, at the time the Regional Director made his findings, or are now , the subjects of
"pending" grievance proceedings . The Regional Director found: "Grievances were proc-
essed for both [Baker and Murphy] by the Union Committee through the first two steps
The Employer , in writing, rejected reinstatement in both instances . A third-step griev-
ance conference was scheduled for May 1, 1961 , in the Employer 's office Neither the
dischargees nor the Union Committee presented themselves at this time Neither the
dischargees nor the Union has taken further action in respect to the terminations."
It is true that the Union now asserts that it in fact arrived "late" for the scheduled
May 1 , 1961 , conference , and that the grievances are in "suspension ." Yet the fact re-
mains that , on the record before the Board, it would appear that the Union , as well as
Baker and Murphy , abandoned the matter.
PACIFIC TILE AND PORCELAIN COMPANY 1369
reemployment at some indeterminate future date, the majority now
sees fit to overrule Dura Steel.
The Dura Steel rule was designed to promote speed and certainty
in the resolution of questions concerning representation and at the
same time protect employees against the loss of franchise by any con-
duct prohibited by the Act.
In abandoning this rule, our colleagues are, in our opinion, now em-
barking on an ill-defined rule which can only tend to prolong and
confuse the resolution of questions concerning representation, and to
involve the processes of this Board in matters which are not the proper
concern of this agency.
The delays which will be encountered under this new rule are
obvious. In the instant case, for example, our colleagues, under their
new rule, cannot now rule on the eligibility of Baker and Murphy for
the obvious reason that they do not know when or how their so-called
pending grievances will terminate. Moreover, since it is impossible
for the Board or any of its agents to expedite or control these outside
proceedings, the precision of Dura Steel must give way to the vagar-
ies of a much more complex, unmanageable, time-consuming
procedure."
Finally, this new rule subjects the Board and its processes to mat-
ters which are not its proper concern. Grievance proceedings over dis-
charges may or may not involve conduct unlawful under the Act. To
the extent that these matters under grievance are ultimately found not
to involve conduct unlawful under the Act, but are found to involve
contract rights, contract interpretations and related matters, our in-
ternal processes will be unnecessarily delayed, suspended, and impaired
pending the outcome of such unrelated proceeding .16
In view of the foregoing, we would not overturn the Dura Steel rule
and would sustain the Regional Director in his disposition of the chal-
lenges to the ballots of Baker and Murphy.
'5 See N.L R B v A J Tower Company, 329 U S. 324, 331, where the Supreme Court
said that it was the Board's duty to "adopt policies and promulgate rules and regulations
in order that employees' votes may be recorded accurately, efficiently, and speedily"
10 For example , see Minneapolis Knitting Works, 84 NLRB 826, where the argument was
made that the "dischargees," whose voting eligibility was at issue , had been terminated
in violation of a contract The Board, however , said, at page 830:
It is clear that employees covered by a union-security contract may not vote after
a discharge at the union 's request unless it is alleged that their discharge was illegal,
in which event the votes are impounded pending a determination by the Board as to
whether an unfair labor practice was committed No charges have been filed assert-
ing that the discharge of any of the 87 laid-off employees constituted an unfair labor
practice . It appears that the 5 challenged voters had been discharged before the
date of the election. The issue as to whether or not their discharges were made in
accordance with the contract between the Employer and the Intervenor is one that
can be decided only by interpreting the provisions of that contract . We do not be-
lieve it to be our function to decide in this proceeding whether the 5 laid-off em-
ployees were discharged rightfully or wrongfully ; it is sufficient for our purposes here
that their employment was in tact definitely terminated, and that no unfair labor
practice charges have been filed concerning them. We therefore find that the chal-
lenges should be, and they hereby are, sustained . [ Emphasis supplied.]
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THIRTY-SIX
SCHEDULE A
REPLACED STRIKERS
Adkison, Rudolph Fells, Arthur O'Dell, Ralph
Baldwin, June Fischer, Franklin Offner, David
Carr, Marjorie Ground, Robert Pierce, Ronald
Crain, Jackie Guitierrez, Eloise Pine, Carol
Danley, Lillian Hill, Jean Rhodes, Lewis
Davis, Sandra Johnson, Carl Robinson , John D.
Dean, Shirley Key, Jimmie Rogers, Robert
Duffield, Robert Lewis, Glenn Schulz, Leo
Duggan, John McIntyre, Edward Stinson, Lou
Elgersma, Margaret Mascaro, Angelo Swim, Ethel
Eusebio, Nedra Mitchell, Carl Thelen, Violet
Ewing, Allan Moore, Larry Whitehead, Robert
SCHEDULE B
SEVENTY-TWO STRIKERS WHO APPLIED FOR REINSTATEMENT
Allen, Marlys Harris, David Payne, Oliver
Allred, Cornell Hawkins, Alice* Quatacker, Martha
Balagna, Louis Ivey, Marjorie Raab, Minnie*
Bennington, Jerry Jones, Arthur* Ridenour, Carmen
Bowden, Martha Jones, Maudie M. Robinson, Elmer
Brewer, Jerome Juhl, Henry Roghair, Elsie
Brouwer, Jacob* Landman, William Roth, Edward
Clark, Jack Larson, Virgil Scott, Mary Jane
De La Roi, Joel' Lewis, Alvin Shaw, Inez
Dennis, Margaret Link, Beulah Simon, Philip
Dykes, Clyde* McGuire, Thomas Slye, Marjorie*
Ewing, Genevieve McKnight, Ada Stevens, Walter*
Fleeman, Howard McKnight, Monte' Storms, Marion*
Ford, Jack Mack, Else Strelow, Marian*
Fox, James Matcham, America* Thomas, Thelma
Galindo, Lydia Matcham, Arthur' ** Underwood, Betty
Gallegos, Pete Merino, Manuel Vachel, Donna*
Gameson, Ernest* Mesaros, Mary Vander Stelt, Harold*
Garcia, Rito Mooney, William Varner, Robert
Garcia, Ygnacio* Morris, Virginia Vonk, Verbennia
Geissinger, Joseph* Mummery, Garnet' ** Wallingford, Dale
Greholver, Merrill' Nelson, Denny Whiteley, James*
Guitierrez, Eloise Newman, Karl* Williams, Charles
Ham, Lonnie* Osborn, James Wisrock, Lola
1 These names also appear on Schedule C.
*Returned as new employee
**Refused to return.
SCHEDULE C
Six STRIKERS WHO APPLIED FOR REINSTATEMENT AND ALLEGEDLY
TOOK OTHER PERMANENT EMPLOYMENT
De La Roi, Joel McKnight, Monte Mummery, Garnet
Greholver, Merrill Matcham, Arthur Robinson, Elmer
PACIFIC TILE AND PORCELAIN COMPANY 1371
SCHEDULE D
ELEVEN OTHER STRIKERS WHO ALLEGEDLY TOOK OTHER
PERMANENT EMPLOYMENT
Buffington, Robert
Crane, Charles
Key, Clarence
Kuhlmey, Richard
Majesky, Harold Theodoroff, Theodore
Merino, Miguel Vander Ham, Donald
Richardson, Barbara Van Eede, Bernard
Stoner, Merle
SCHEDULE E
ONE HUNDRED AND FOUR PERMANENT REPLACEMENTS HIRED ON OR
BEFORE JUNE 25, 1961
Abplanalp, Delloy Hendrickson, Ronald Pfeiffer, Charles
Ary, Gloria Hersey, George Pitts, Virginia
Austin, Andrew Honegger, Walter Plummer, Gertie
Ballard, Eugene Hutchins, Bobby Polzin, Fred
Barnes, Patsy Ingram, Ira Jean Prieto, Marie
Bates, Theodora Johnson, Lester Rex, Kenneth
Beebe, Jack Keppel, Cornelius Rios, Joe
Beeman, Dorothy King, Linnie Roberts, Mae
Berry, Edwin Kunkel, Ruth Salcido, Arthur
Braff, George Kuykendaall, Virgil Samuelson, Duane
Callier, Lawrence Leal, Anthony Saxton, Berta
Carpenter, Hugh Le Couix, John Simmons, Gilbert
Caranci, Liberato Lewis, Jerry Smith, Ferrell
Celaschi, Paul Maletta, Gloria Stack, Juanita
Coleman, Sally Marshall, Ronald Sweet, James
Crabb, Connie Martinez, Alfonso Swenson, Gary
Crouse, William Martinez, Robert Thevenot, Bernard
Daniels, Paula Massey, Marcellus Tilmon, Willie
Debnam, Marian Massie, Josephine Toothman, Roy
Denney, Ray McClurg, Dorothy Towl, Paula
DiGeorge, Philip McNamara, Paul Tranum, Andrew
Durain, Phyllis McNulty, Patrick Tweedy, Bety
Edwards, Margery Morgan, Rodney Underwood, Alice
Feldhahn, Eva Mulder, John Wallace, Ronald
Forney, Wallace Mulvihill, John Wallace, William
Francis, William Nagel, Karen White, Alnetta
Frazier, Robert Nelson, Gertrude Wilcox, Earl
Gilliland, Vera Nielsen, Larry Wilson, David
Gordon, Donn Nolan, Peter Wonderling, Helen
Greiner, William Norton, Edith Wright, H. Janith
Haibel, John Ohirich, Lois Wyant, Walter
Hammond, Joseph Olave, Douglas York, Arnold
Harness, Charles Palmer, Donald Yost, David
Harvey, Gordon Paulsen, Iva Youngblood, Eva
Hendrickson, Patrick Peterson, Raymond
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SCHEDULE F
Six REPLACEMENTS HIRED AFTER TIIE ELIGIBILITY DATE BUT PRIOR
TO THE ELECTION
Bradshaw, Leo
Haibel, Rosalyn
Keys, William Wilkinson, Robert
Summers, Roger D. Willis, Elwood
SCHEDULE G
SEVENTEEN REPLACEMENTS
Alixopulos, Hedrick
Alper, Craig
Cole, Bernice
Cox, Casey
Crabb, Ronald
Duray, Paul
Garcia, George
Keys, Linda
Leibrock, Sylvia
Baker, Cecil
THREE
ALLEGEDLY NOT PERMANENT
Maun, Joy
Morriss, Leslie
Owens, Tom
Reynolds, John
Sears, Richard
Smith, James
Vander Meulen, Richard
Young, Justine
SCHEDULE H
Two TERMINATED EMPLOYEES
Murphy, William
SCHEDULE 1
EMPLOYEES ASSIGNED TO UNIT WORK
Ingalls, Richard Maxey, James Toothman, Mary
Bradley Transportation Line, Michigan Limestone Division,
United States Steel Corporation 1 and Associated Maritime
Officers Division , Marine Engineers Beneficial Association,
AFL-CIO, Petitioner . Case No. 7-RC-5243. July 17, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Marie B. Poston, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
1 The name of the Employer appears as amended at the hearing.
137 NLRB No. 148.