P.B.R. Co.

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 602 (N.L.R.B. 1975)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P.B.R. Company, Employer-Petitioner, and Local
441, International Brotherhood of Electrical Work-
ers, AFL-CIO. Case 21-RM-1636
February 14, 1975
DECISION AND ORDER DIRECTING
REGIONAL DIRECTOR TO OPEN AND
COUNT BALLOTS
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Regional Director for Region 21 of
the National Labor Relations Board on February 22,
1974, an election by secret ballot was conducted in
the above-entitled proceeding on March 21, 1974,
under the direction and supervision of the said
Regional Director.
Upon the conclusion of the election, a tally of
ballots was furnished the parties which showed that
there were approximately 15 eligible voters and that
12 ballots were cast, of which 2 were for the Union, 2
were against the Union, and 8 were challenged. The
challenged ballots are sufficient in number to affect
the results of the election. No objections to conduct
affecting the results of the election were filed by
either party.
In accordance with the National Labor Relations
Board Rules and Regulations , Series 8, as amended,
the Regional Director conducted an investigation of
the issues raised by the challenged ballots and, on
April 18, 1974, issued and duly served on the parties
his Report on Challenged Ballots in which he
recommended that the challenges to the ballots of
Fred Foltz, Lewis Mackowski, and Ronald Wright
be sustained and that the challenges to the ballots of
Hoss Ensey, Neil Gumm, Huey Hardman, Donn
Riffle, and Sostenes Vegara be overruled. Thereafter,
the Employer-Petitioner filed timely exceptions to
the Regional Director's Report on Challenged
Ballots requesting that he be reversed as to his
conclusion that the challenges to the ballots of Hoss
Ensey, Neil Gumm, Huey Hardman, and Sostenes
Vegara be overruled.
The Board duly considered the matter and on June
26, 1974, issued an Order Directing Hearing in which
it ordered that a hearing be held before a duly
designated Hearing Officer for the purpose of
receiving evidence to resolve the issues raised with
respect to the challenge to the ballots of Neil Gumm,
Huey Hardman, and Sostenes Vegara. The Board
further ordered that the Hearing Officer designated
' The Hearing Officer's Report and Recommendations is attached as
216 NLRB No. 112
for the purpose of conducting such hearing prepare
and cause to be served on the parties a report
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of said challenges. At that time,
the Board deferred ruling on the challenge to the
ballot of Hoss Ensey pending disposition of the other
challenges.
Pursuant to said order, a Notice of Hearing on
Challenged Ballots issued by the Regional Director
for Region 21 was duly served on the parties. A
hearing was held on August 21, 1974, before Hearing
Officer Roberto G. Chavarry. On November 11,
1974, the Hearing Officer issued and duly served on
the parties his report and recommendations in which
he recommended that the challenges to the ballots of
Neil Gumm, Huey Hardman, and Sostenes Vegara
be overruled and that their ballots be opened and
counted. Thereafter, the Employer-Petitioner filed
timely exceptions to the Hearing Officer's report and
a supporting brief.
Pursuant to the provisions of Section 3(b) or the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated and we find that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by the Employer at its
facility located at 1020 East Vermont Avenue,
Anaheim, California, excluding all sales employ-
ees, office clerical employees, guards, watchmen,
and supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report and the exceptions thereto, the Hearing
Officer's report' and the exceptions thereto, and the
entire record in this case and hereby adopts the
findings. and recommendations of the Regional
Appendix A hereto.
P.B.R. COMPANY 603
Director 2 and the Hearing Officer only to the extent
consistent herewith.
The Hearing Officer concluded that Neil Gumm,
Huey Hardman, and Sostenes Vegara had not
terminated their employment prior to the beginning
of the payroll period for eligibility set forth in the
election agreement and therefore found them eligible
to vote in the election. The Employer-Petitioner
contends that these employees had given objective
indications that they were no longer interested in
their struck jobs, We find merit in this contention
insofar as Gumm and Hardman are concerned, but
not as to Vegara.
Gumm, who had worked for the Employer since
1961, joined the strike when it commenced on or
about December 28, 1973, and on January 3, 1974,
he picketed in front of the Employer's facility. On
January 8, 1974, Gumm, according to his own
testimony, entered the plant and said to the payroll
clerk, Alma Campbell, "Would you please terminate
me and give me the money I am due?" Campbell
testified that he asked for his termination pay,3 that
he said he wanted to terminate his employment, but
that he did not give her a specific reason as to why he
wanted to terminate. Campbell thereupon, pursuant
to company procedure, made out a termination
notice, marked it "self-termination," and had Gumm
sign it . Gumm testified that, although he did not
subsequently picket anymore, he returned to the
Company on numerous occasions "just to visit" and
kept in contact with the Union as to the progress of
the'contract negotiations. He contended that it was
his intention to return to work if a contract was
negotiated between the Union and the Employer. He
currently Holds another job.
Hardman, who began work for the Employer in
1964, was on picket line duty on January 3, 4, and 5.
On or about January 11, 1974, he telephoned
Campbell and told her that he wanted to terminate
and to receive his accrued pay. This followed a
telephone conversation between Hardman and Don
Flodine, identified as a coordinating supervisor at
the Employer's plant and a friend of Hardman, in
which Flodine told him that the Company was not
going to sign a contract and that he, Hardman, might
as well quit. When Hardman went down to Camp-
bell's office to pick up his check, he again told her he
was terminating. Campbell had made an error in the
calculation of Hardman's tax deductions and conse-
quently informed him that she would refigure the
amount he was entitled to receive and mail him the
2 In the absence of exceptions thereto, the Board adopts ,pro forma, the
Regional Director's recommendation that the challenges to the ballots of
Fred Foltz , Lewis Mackowski, and Ronald Wright be sustained and that the
challenge to the ballot of Donn Riffle be overruled . For the reasons set forth
in the Regional Director's report, the relevant portion of which is attached
as Appendix B hereto , the Board adopts the Regional Director's resommen-
check. In the confusion over the tax error, she
neglected to have him sign the termination form
which had been marked "self-termination." She
mailed the slip to him along with the corrected check.
Hardman has held a number of jobs since the
election including his present position. He testified
that it was his intention to return to work once the
strike ended.
It is presumed that an economic striker continues
in such status and, hence, is eligible to vote under
Section 9(c)(3) of the act .4 To rebut the presumption,
the party challenging his vote must affirmatively
show by objective evidence that he has abandoned
his interest in his struck job.5 The nature of the
evidence which may rebut the presumption will be
determined on a case-by-case basis. In Roylyn, Inc.,6
the Board held that the employer had not affirma-
tively shown by objective evidence that economic
strikers had abandoned their interest in their struck
jobs. The employees entered the struck plant with the
sole intention of obtaining their vacation pay, clearly
requested such payment, and signed the termination
slips only after being instructed that such an act was
a condition precedent to obtaining the money. That
is not the case here. Both Gumm and Hardman
initiated their conversations with Campbell by
stating that they wanted to terminate their employ-
ment. It was only thereafter that they requested their
vacation or termination pay. Whereas, in Roylyn, the
decisions to sign the termination slips were clearly
predicated on the desire to receive the vacation pay,
here it appears from the plain meaning of the
conversations that the opposite was true and that the
requests for the vacation or termination pay were
predicated on the initial decision to terminate their
employment. There is nothing in the record other
than their own testimony to indicate or suggest that
Gumm and Hardman had even the undisclosed
intention only to obtain vacation pay at the time they
signed the termination slips; nor is there evidence
that they actually qualified or intended to qualify
their requests to terminate with an expression of
desire to return to P.B.R. once the strike was settled.
Under the circumstances present herein, the plain
meaning of the words used by both Gumm and
Hardman can lead to but one conclusion, that they
voluntarily terminated their employment with the
Employer and for that reason signed the quit slips,
thereby abandoning their status as economic strikers.
We conclude that the Employer has affirmatively
shown with objective evidence that Gumm and
dation that the challenge to the ballot of Hoss Ensey be overruled.
3 Termination pay and accrued vacation pay are one and the same and
the two terms were used interchangeably by the witnesses at the hearing.
4 Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359 (1962).
S Id
6 178 NLRB 197 (1%9).
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardman have abandoned their interest in their
struck jobs, and that the Employer has thereby
rebutted the presumption of continued status as
economic strikers . Accordingly, the challenges to the
ballots of Gumm and Hardman are hereby sus-
tained.7
The facts concerning Sostenes Vegara are totally
different. He had been an assembler at P.B .R. for 6
years and engaged in picket line duty on either
January 3 or 4. On January 16, 1974, he entered
Campbell's office and stated that he was looking for
his pay, whereupon she told him that in order to
receive his pay he had to sign a termination form,
which he then signed.8 Vegara did not know that, in
order to obtain his vacation pay, he had to terminate
his employment . This finding is supported by the fact
that 2 weeks after receiving his check Vegara
returned to the plant looking for work. Furthermore,
during his conversation with Campbell, Vegara told
her that he was taking a job temporarily and waiting
for the strike to end, and that he hoped to work for
the Company after the strike was over . Under these
circumstances , we conclude that Vegara had not
abandoned his interest in his struck job, and that the
Employer failed to rebut the presumption of Vegara's
continued eligibility. Accordingly, we hereby over-
rule the challenge to the ballot of Vegara.
ORDER
It is hereby ordered that the Regional Director for
Region 21 shall, pursuant to the Board's Rules and
Regulations , within 10 days from the date of this
Order, open and count the ballots of Donn Riffle,
Hoss Ensey , and Sostenes Vegara and thereafter
prepare and cause to be served on the parties a
revised tally of ballots , upon the basis of which he
shall issue the appropriate certification.
7 For the reasons stated by the Hearing officer in his report, attached
hereto, Member Jenkins would find that the Employer failed to rebut the
presumption that Gumm and Hardman remained economic strikers with a
continuing interest in their struck jobs. Member Jenkins also considers it
significant that Campbell , the individual who prepared the termination slips
for Gumm and Hardman, procured a termination slip from another striker,
Vegara, with the representation that such action was necessary in order for
Vegara to receive the money due him . Accordingly, Member Jenkins would
overrule the challenges to the ballots of Gumm and Hardman and count
their ballots.
s Whereas Campbell told Vegara that he had to sign the quit slip in order
to get his termination pay, it does not appear from the record that she made
such a statement to either Gumm or Hardman.
APPENDIX A
HEARING OFFICER'S REPORT AND
RECOMMENDATIONS
Pursuant to a Stipulation for Certification upon
Consent Election , executed by the parties, and
approved by the Regional Director for Region 21 on
February 22, 1974,1 an election by secret ballot was
conducted on March 21 , among the employees of the
Employer in the unit found appropriate ,2 under the
direction and supervision of said Regional Director.
At the conclusion of the election, each party was
furnished with a tally of ballots which showed that,
of approximately 15 eligible voters , 12 ballots were
cast, of which 2 were for the Union , 2 were against
the Union , and 8 were challenged . The challenged
ballots are sufficient in number to affect the results of
the election.
The Regional Director conducted an investigation
of the issues raised by the challenged ballots and, on
April 18 , issued and duly served on the parties his
Repprt on Challenged Ballots . In his Report, the
Regional Director recommended that the challenges
to the ballots of three employees be sustained and
that the challenges to the remaining five ballots be
overruled. On April 25, 1974, Employer-Petitioner
filed timely exceptions to the Regional Director's
Report on Challenged Ballots.
The Board considered the Regional Director's
Report on Challenged Ballots and the Employer-
Petitioner's exceptions thereto and found that the
exceptions with respect to the challenges to the
ballots of Neil Gumm , Huey Hardman , and Sostenes
Vegara raised issues which would best be resolved by
a hearing.
Accordingly , the Board directed, by Order dated
June 26, that the Regional Director for Region 21
conduct a hearing for the purpose of receiving
evidence to resolve the issues raised with respect to
the challenges to the ballots of Neil Gumm, Huey
Hardman, and Sostenes Vegara.
Copies of the Board Order were duly served upon
the parties, and pursuant to a Notice of Hearing on
Challenged Ballots issued by the Regional Director
for Region 21, a hearing was held on August 21.
The undersigned served as Hearing Officer. Upon
the entire record of the hearing and from my
observation of the witnesses , I make the following:
I All dates hereinafter are 1974 unless otherwise specifically stated.
f All employees employed by the Employer at its facility located at 1020
East Vermont Avenue, Anaheim , California ; excluding all sales employees,
office clerical employees , gus:•ds, watchmen , and supervisors as defined in
the Act.
P.B.R. COMPANY 605
Findings of Facts and Conclusions
The ballots of Gumm, Hardman, and Vegara were
challenged by the Employer-Petitioner (hereinafter
Employer) on the ground that these individuals had
voluntarily quit and thereby had abandoned their
interest in the strike and in employment at P.B.R.
Initially it should be noted that an economic striker
is presumed to continue in that status and thus is
eligible to vote under Section 9(c)(3) of the Act. The
Board has held that such status may be lost by some
action of the striker himself, by which he has shown
an intention to abandon his interest in his struck job
regardless of the outcome of the strike.3 The Board
further stated that, in order to rebut the presumption
of eligibility, the party challenging the voter must
obstensibly show by objective evidence that the
striking employee has abandoned his interest in the
struck job.4 The Board noted that the nature of the
evidence which might rebut the presumption would
be determined on a case -by-case basis .5 It is with
these considerations in mind that the undersigned
now turns to the evidence concerning the status of
these three individuals on the date of the election.
Neil Gumm has worked for Employer since 1961.
He joined the strike which commenced on or about
December 28, 1973 and on January 3, 1974, he pulled
picketline duty. On January 8, 1974, Gumm went
into the plant and told the payroll clerk, Alma
Campbell, to give him his termination check. It is
uncontradicted that, when Gumm asked for his
paycheck, Campbell made out a termination notice,
marked it "self-termination," and had Gumm sign
its Gumm further credibly testified that, subsequent
to January 8, he returned to the Company on
numerous occasions "just to visit" and that, although
he did not pull any more picketline duty after this
date, he still kept in contact with the Union as to the
progress of the contract negotiation between it and
Employer, and that it was his intention to return to
work if a contract was negotiated between the Union
and the Company. Gumm testified that he thought it
was necessary to quit working at P.B.R. in order for
him to get a job someplace else. He testified that he
has been working. for another company, Woody's
Electric, "right at four months."
Under cross-examination, Campbell related the
following conversation with Gumm:
8 Pacific Tile and Porcelain Co., 137 NLRB 1358, Dalton Sheet Metal
Company, Inc., 207 NLRB 188.
4 Pacific Tile and Porcelain Co., supra, Dalton Sheet Metal Company, Inc.,
supra.
s Id
s According to testimony by Campbell , if any employee desired to get his
accrued vacation pay, management would have to approve it, but that, if an
employee states that he's terminating , then she can go ahead and make out
the final paycheck without management 's approval . She further testified
Q. (Union's Counsel) Did he explain to you
why he wanted to terminate?
A. No.
Q. He didn't mention the strike at all in that
conversation?
A. Well, he may have-he may have men-
tioned the strike. I'm sure that it was due to the
strike that he wanted to terminate.
Q. Well, do you recall what it was that he said
to you with regard to that strike that [sic] that
time?
A. I believe he said that it looks like it would
be continuing a long time.
Campbell further testified that Gumm had not
given her any specific reason as to why he wanted to
terminate.
On the evidence before me, I do not find that the
Employer has rebutted the presumption of Gumm's
continued eligibility to vote at the election. The
Employer's assertion that Gumm has abandoned
interest in his struck job rests entirely on Gumm's
request for his termination check on January 7. But
the mere fact that Gumm requested his termination
pay should not be construed as proof that he desired
to permanently sever his employment relationship
with the Employer, especially in view of the fact that
"termination pay" and "vacation pay" are consid-
ered one and the same. The mere signing of a
termination slip does not of itself establish that a
striker is abandoning interest in his struck job,7 nor
do statements made to the Employer declaring such
an abandonments It must be noted that Gumm
requested his termination pay because he felt that
this was necessary in order for him to obtain other
employment. Also, the testimony by Campbell that
Gumm stated that the strike would continue for a
long time gives credence to Gumm's testimony that,
at the time he requested his termination pay, he
planned to return to work once the strike was over
and a contract was signed. Moreover, the fact that
Gumm may be presently employed at an equivalent
or higher paying job is irrelevant, since it appears
that he obtained his present job subsequent to the
election and, under Board law, changes in status
after an election are immaterial .9
Therefore, I find that at the time of the election,
Gumm was an economic striker and eligible to vote.
that vacation pay and termination pay are one and the same. Thus, it is
apparent to the Hearing Officer that the terms "termination pay" and
"vacation pay" are used interchangeably and that a loose interpretation of
the term "termination pay" is necessitated in this case.
I Roylyn, Inc., 178 NLRB 197; Guyan Machinery Company, 155 NLRB
591, 594.
8 Roylyn, Inc., supra, Dalton Sheet Metal Company, Inc., supra.
B T. E. Mercer Trucking Co., 138 NLRB 192, 193 fn. 4.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huey Hardman began to work for Employer in
March 1964. Hardman testified that, around January
2, he arrived at the plant around 7:45 in the morning
not aware that a strike had taken place. At the plant
he spoke with Don Flodine, coordinating supervisor.
According to Hardman, Flodine asked him if he was
on strike, and Hardman replied, "Not to my
knowledge." Hardman further testified that Flodine
told him to wait a minute and then went upstairs.
Flodine came back a few minutes- later and told
Hardman that he, Flodine, had spoken to Mike
Rathbun, the Employer's vice-president. Hardman
Further testified that Flodine told him, "It's better
hat you leave; Get off the premises."
Flodine's testimony concerning the above conver-
,ation conflicts with Hardman's testimony. Flodine
.estified that he remembered seeing Hardman com-
ng in on or about January 2. Under cross-examina-
.ion Mr. Flodine related the following:
Q. (Union Counsel) Mr. Flodine, do you
recall a conversation you had on or about
January 2nd with Mr. Hardman?
A. In regards to what?
Q. Well, when perhaps Mr. Hardman report-
ed to work and you had a conversation with him
regarding the possibility of there being a strike
that day?
A. I remember him coming in and leaving.
Q. Do you remember talking to him when he
came in?
A. I don't believe I did that day.
Q. You don't remember asking Mr. Hardman
if he was on strike?
A. There could have been this conversation. I
mean he was in and I saw him walking out. I
could have made the remark to him. I do not
recall it.
Q. Do you remember going to check with Mr.
Mike Rathbun to see if the employees were in fact
out on strike?
A. Yes I do.
Q. And do you remember coming back and
talking to Mr. Hardman after that and telling him
"Yes you are on strike, or you're supposed to be
out on strike ; get out"?
A. No. He was gone at that time.
Q. In other words, you went out to check with
Mr. Rathbun to see if the employees were on
strike, and when you returned Mr. Hardman was
gone?
A. Yes, sir.
Q. Do you know whether your conversation
with Mr. Rathbun was in response to an earlier
conversation with Mr. Hardman?
A. I don't believe I had a conversation with
him. I seen [sic] him in there. Knowing that there
was a strike, I went up to verify this through Mr.
Rathbun, to come back down to say something;
but Mr. Hardman had left at that time.
It is clear that Flodine's recollection of the events
on January 2, conflict with that of Hardman's. In
comparing both versions, the undersigned notes that
it would have been impossible for Hardman to have
known that Flodine had spoken to Rathbun about
the strike unless Flodine had been the one to tell him
so. Thus, based on the plausibility of the alleged
conversation, I credit Hardman and find that
Flodine told Hardman that, "It is better that you
leave ; get off the premises."
Hardman further testified that, after he left the
premises of P.B.R. on January 2, he went outside and
met with Gumm and other employees. Hardman
pulled picketline duty on January 3, 4, and 5. On or
about January 11 during the day, he received a
phone call from Mr. Flodine. According to Hard-
man, Flodine informed him during this telephone
conversation that the Company was not going to sign
a contract and that he, Hardman, might as well quit.
To a question as to how he had taken that advice,
Hardman replied, "Well, I took that as meaning that,
in other words, if it is to be like it is now, a long
period of time, what's the point of waiting, is the way
I took it." Hardman also stated that he thought that
Flodine was a friend of his and that he was doing this
on his own. It is undisputed that during this same
telephone conversation Flodine asked Hardman if he
knew of other people he could hire to take the place
of the strikers, since, as Hardman put it, he was
familiar with many men that had worked over the
past few years at P.B.R.
Flodine's testimony with respect to the telephone
conversation conflicts with that of Hardman. When
asked by Union's Counsel if he had advised
Hardman to quit his employment at P.B.R., Flodine
replied, "This will be questionable right now." Upon
being pressed for an answer, Flodine then replied,
"I'd say no." When asked to relate the conversation
that he had with Hardman over the telephone as best
as he could remember, Flodine replied,
The thing I remember is asking , "Do you know
where I can get some sign hangers , because I have
work to be done." And, of course, he tells me,
"no." And what else went on in that conversation,
I don't know. It probably was a short one,
P.B.R. COMPANY 607
because that was my main interest ; because I was
in a little bit of a spot.
To the extent that Flodine's version of this telephone
conversation conflicts with that of Hardman, I credit
Hardman's version.
Subsequent to this telephone conversation with
Flodine, Hardman called Alma Campbell and told
her that he wanted to terminate and to receive his
accrued pay. Campbell testified that Hardman had
mentioned to her the fact that he was terminating
was because of the strike.10 Testimony adduced at
the hearing also established that, when Hardman
went down to Campbell's office in January to pick
up his paycheck, he again told her he was terminat-
ing. Because Campbell had made an error in the
calculation of his tax deductions, Hardman informed
Campbell to refigure the tax deductions and to mail
him his paycheck. Although Campbell had, as a
result of Hardman's previous conversation, prepared
a termination form for Hardman to sign, in the
confusion of the tax error, she forgot to have
Hardman sign such a document. It is her credited
testimony that she mailed such a form, together with
Hardman's paycheck, to him.
When pressed by the Employer's counsel if he
knew the difference between asking for vacation pay
versus informing the Company that he was quitting,
Hardman replied that,
Well, you see, there isn't really any difference. It
depends upon the eyes of how you want to
interpret it. Now, you notice on the piece of paper
it says self-termination. That doesn't necessarily
mean, see, that you are quitting. To get your
vacation pay, which rightfully belongs to you
anyway, normally you fill out a termination, as
Alma [Campbell] said previously, see, of self-
discontinuance here. That doesn't necessarily
mean you are quitting. It can be done in leave of
absence and you do the same thing.
Hardman further testified of his intention to return
to work once the strike ended. He testified that the
employees, prior to the strike, had been working for 6
months without a contract, and that it was because of
the absence of a settlement that the employees had
gone on strike.
Although it is unclear how long Hardman has been
employed at his present job, it is apparent from the
affidavit which Hardman gave an agent of Region 21
on March 27, 1974, and which was introduced by the
Employer as an exhibit, that Hardman has held a
number of jobs since the election, and that he
obtained his present job only after the election.
The only tangible evidence to support a finding
that Hardman severed his employment relationship
with the Employer is based upon his conversation
with Campbell when he asked for his termination
pay. I find this to be insufficient proof that Hardman
intended to permanently sever his employment
relationship with the Employer. Hardman's testimo-
ny, with respect to the terms "termination pay" and
"vacation pay" like that of Campbell's, tends to
completely dissipate, whatever reliance anyone may
place on the term "termination pay," as a true
indication of the employee's intent. Thus, Flodine's
statement to Hardman, that the Employer would
never sign a contract with the Union, and his inquiry
as to whether Hardman knew other people that the
Employer could hire to replace the strikers, can
reasonably lead one to the conclusion that Hard-
man's statement to Campbell, that he wanted to
terminate and to receive his accrued pay, was based
on his assumption that the strike would be a long one
and that he might as well get whatever money he had
coming.
As in the case of Gumm, I find the Employer's
assertion that Hardman presently occupies the
equivalent or a higher paying job to be irrelevant.
From the evidence presented at the hearing, it is
apparent that he was employed in his present
position subsequent to the date of the election, and
thus his change of status subsequent to the election is
immaterial."
Under the circumstances which surrounded Hard-
man's statement to Campbell that he was terminat-
ing, I find that Hardman was and remained, an
economic striker who had not permanently aban-
doned his interest in his employment with the
Employer, and was thus an eligible voter at the time
of the election.12
Sostenes Vegara credibly testified that, prior to the
strike, he had been employed at P.B.R. as an
assembler for about 6 years. During the strike he
pulled picketline duty either on January 3 or 4. On
January 16, Vegara went into the plant and met
Howard Pendleton, the corporate secretary-treasurer
of the Employer. The most that Vegara remembers
clearly is that Pendleton said, "hello." Vegara denies
stating to Pendleton that he wanted to terminate his
employment with P.B.R.13 In fact, Vegara testified
that he had gone there that day to pick up money
io Although Hardman testified that he had told Campbell that he wanted 12 See Q-T Tool Company, Inc., 199 NLRB 500.
his vacation pay, based on Campbell's testimony as well as an affidavit 13 Pendleton testified that Vegara shook hands with him , and told him
which Hardman gave the agent for Region 21 on March 27 , 1974, I find that that he was there to terminate . Pendleton admitted that he is not the person
Hardman stated that he wanted to terminate . with whom Vegara would discuss the day-to-day working conditions, and
i i T. E. Mercer Trucking Co., supra. that it would be unusual for Vegara to tell him he was there to terminate
(Continued)
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he felt the Company owed him. According to
Vegara, after saying "hello" to Pendleton, he went
into the office and spoke to Campbell. Vegara stated
that he told her that he was there looking for his pay
and that, according to her, in order for him to get his
pay, he had to sign a termination form. It was at this
time that Campbell handed Vegara a termination
form and he signed it. According to Vegara, he did
not know that in order to get his vacation pay he had
to terminate. Vegara then signed the termination
form and picked up his check.
About 2 weeks later, Vegara uncontradictedly
testified that he returned to the plant and spoke with
Rathbun. Vegara asked Rathbun if there was any
work to be done and, according to his testimony,
Rathbun replied that everything was too slow at that
time, but that he should check again. Rathbun was
not called as a witness.
Alma Campbell's version of her conversation with
Vegara on January 16 is slightly different than his,
but worth examining. It is her testimony that, when
Vegara came in on January 16, he requested to be
terminated.14 The following exchange took place
between Union's counsel and Alma Campbell:
Q. In the course of your conversation with
Mr. Vegara on the 16th, did Mr. Vegara tell you
that his termination was related to the strike?
A. I-I don't remember.
Q. Do you recall Mr. Vegara saying in effect
that he was taking a job temporarily and waiting
for the strike to end?
A. Yes. Yes, he was. He had apparently been
working on the side for somebody.
Q. Do you recall him saying that to you in
that conversation?
A. Yes. Uh huh.
Q. I see. Do you recall precisely what it was
he said?
A. I believe he was working for a company or
for someone; he was doing a job for someone
either at a house or at a-I don't remember. But
he was doing wiring, and he had a certain length
of time he was doing this for.
Q. Well, what I'm trying to get you to do is
relate what it was he said to you and what you
said to him in this context.
A. I say I believe he told me at that time he
was working doing wiring of homes. It was not
Vegara impressed me as a witness honestly attempting to reconstruct his
meeting with Pendleton . I find based on my observations of his manner of
testimony that he never told Pendleton he was there to terminate.
14 The question to be resolved in this instance is whether Vegara went to
the office looking for his pay or for his termination pay, as Campbell stated.
After carefully weighing the testimony of both Vegara and Campbell, and
considering the likely probabilities , I am persuaded that Vegara told
through anybody, I don't believe; it was just like a
private type of job.
Q. And he did indicate that he was going to
come back to work for the Company after the
strike was over, or he hoped to?
A. I believe so.
Q. Can you tell me why there was no notation
made to that effect upon his termination notice?
A. As to what?
Q. That he intended to return to work at some
day in the future.
A. This would be something we wouldn't
normally put down. Usually we just put down
self-termination when they do terminate, because
that is something that you can't-you don't really
know in the future.
Q. In other words, you would treat your
termination notice somewhat differently when
there is a self-termination than you would a
termination where an employee was fired-
A. Yes.
Vegara further testified that, subsequent to the
strike, he has been employed for approximately 4
months by the same company.
Since I have found that Vegara never told
Pendleton that he was terminating, and I have
further found that Vegara went into the plant looking
for the money he felt he had coming, and not with
the intention of permanently terminating his employ-
ment relationship with the Employer, I am persuaded
by the testimony presented before me that Vegara
signed his termination form because Campbell
represented to him that this was the only manner in
which he could get his money, and thus should not
be construed as proof that Vegara desired to
permanently sever his employment. Vegara's contin-
ued interest in his struck position was evident from
his conversation with Campbell, in which he ex-
pressed his hope to come back to work for the
Employer after the termination of the strike, and also
from his visit to Rathbun 2 weeks later. As to his
present employment , again I find it immaterial
inasmuch as the evidence tends to show that Vegara
acquired this job subsequent to the date of the
election . In any event, the mere acceptance of a job
with better benefits does not establish that a striker
has forfeited his eligibility.15 Thus, I find that the
Employer has failed to rebut the presumption of
Vegara's continued eligibility.
Campbell he was there looking for his pay. As noted earlier , Campbell
testified that management would have to approve an employee 's request for
"vacation pay," whereas she can give an employee "termination pay," if the
employee terminates . This gives credence to Vegara 's testimony that
Campbell told him to sign a termination form if he wanted the money due
him.
15 Akron Engraving Company, Inc, 170 NLRB 232, 234
P.B.R. COMPANY 609
Recommendations
Having made the above findings of fact and
conclusions, I recommend that the challenges to the
ballots of Neil Gumm, Huey Hardman, and Sostenes
Vegara be overruled that their ballots be opened and
counted.16
is Under the provisions of Section 102.69 of the Board 's Rules and
Regulations, exceptions to this report may be filed with the Board in
Washington , D.C. Exceptions must be received in Washington by
November 25, 1974.
APPENDIX B
Hoss Ensey:
The ballot of Hoss Ensey was challenged by the
Employer on the ground that he is engaged in
substantially equivalent self-employment and has,
therefore, abandoned his interest in the strike and in
employment at P.B .R. as an employee on the regular
P.B.R. payroll.
The evidence reveals that Ensey took part in the
strike and picketed to the extent that was possible in
the rain. In mid-January, Ensey was advised by the
Employer that he could come to work "tomorrow" if
he wanted to, but not as a striker inasmuch as that
would,tend to complicate matters with the Union. He
was told by the Employer that he could work on a
purchasing order or subcontracting basis at 41 cents
less an hour than what he had been making as a
regular P.B.R. employee. Ensey contacted the Union
and was cleared to work for B.B.R. on this basis.
Ensey insisted that he would do this only until the
Union found him union employment. Ensey began
to work for P.B.R. on this basis on or about January
20 and is still so employed. He has expressed his
continuing interest in the strike and in returning to
work for P.B.R. as a regular employee. In his present
position P.B.R. provides him with no benefits and
does not make any payroll deductions for him. Ensey
has never been terminated by P.B.R. and has never
received his "final" pay. It is conchided that Ensey
has not at any time abandoned his interest in
returning to his former employment at P.B.R. merely
by engaging in "substantially, equivalent employ-
ment."4 In the absence of other objective evidence,
the undersigned concludes that Ensey is an eligible
voter and it is recommended that the challenge to his
ballot be overruled.
4 Q•T Tool Co., 199 NLRB No. 79. See also Pacific Tile and Porcelain
Company, 137 NLRB 1358, 1362 (specifically employee Key who engaged in
subcontracting).