Q-T Tool Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1972

199 N.L.R.B. 500 (N.L.R.B. 1972)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q-T Tool Company, Inc. and Susan Fish Petitioner,
and International Union , United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW). Case 25-RD-289
October 4, 1972
SUPPLEMENTAL DECISION AND
DIRECTION TO OPEN AND
COUNT CHALLENGED BALLOTS
BY MEMBERS FANNING, KENNEDY, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on May 14, 1971, under the direction and
supervision of the Regional Director for Region 25
among the employees in the appropriate unit. At the
conclusion of the election, the parties were furnished
a tally of ballots which showed that, of approximately
61 eligible voters, 50 cast ballots, of which 13 were for
and 22 against the Union. There were 15 challenged
ballots. The Petitioner challenged eight ballots and
the Employer challenged seven ballots. These chal-
lenges were sufficient in number to affect the results
of the election. No objections to conduct affecting the
election were filed.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation and on August
13, 1971, issued and duly served on the parties his
Report on Challenged Ballots and Recommendations
to the Board in which he recommended that the chal-
lenges to all 15 ballots be overruled and that these
ballots be opened and counted with a revised tally of
ballots and an appropriate certification to issue at an
appropriate interval thereafter. Subsequently, the Pe-
titioner and the Employer filed exceptions to the Re-
gional Director's report.
The Board considered the Regional Director's
report and the exceptions filed thereto by the Petition-
er and the Employer and on November 23, 1971, is-
sued a Decision, Direction, and Order ' in which it
adopted the Regional Director's recommendation
with regard to 10 of the 15 challenged ballots.' The
Board therefore ordered that these 10 ballots be
opened and counted and a revised tally of ballots
served on the parties and that if the remaining 5 chal-
lenged ballots, i.e., the ballots of Velma Chambers,
Elvin Clark, Bobby Elliott, Donald Gratzer, and Bet-
Not published in Board volumes.
Z The Board determined that the Petitioner's and Employer's exceptions to
these 10 ballots raised no material or substantial issues warranting reversal
of the Regional Director's findings and recommendations or warranting a
hearing of any of these challenges.
ty Inman, were still determinative that a hearing be
held concerning the eligibility of those who cast the 5
remaining challenged ballots.
Thereafter, the 10 ballots whose challenges were
overruled were opened and counted and a revised
tally of ballots was served on the parties. The revised
tally showed that of approximately 61 eligible voters,
50 cast ballots, of which 22 were for and 23 against the
Union with 5 challenged ballots still outstanding.
As the remaining challenged ballots were deter-
minative of the election results, a hearing was there-
after held on these five ballots pursuant to the Board's
Decision before Hearing Officer Frederick G. Wink-
ler. On March 23, 1972, Hearing Officer Winkler is-
sued his Report on Challenges in which he
recommended that the challenges to all five ballots be
overruled, that these ballots be opened and counted,
and that the Regional Director be directed to issue an
appropriate certificate of results. The Employer and
the Petitioner thereafter filed exceptions to the Hear-
ing Officer's recommendation with respect to each of
the five challenged ballots.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record in this case,
including the Hearing Officer's report and the
Employer's and Petitioner's exceptions thereto and
has decided to overrule the challenges to the ballots
of Betty Inman, Bobby Elliott, and Velma Chambers,
but to sustain the challenges to the ballots of Elvin
Clark and Donald Gratzer.
The record reveals that a strike commenced at
the Employer on August 10, 1970. Betty Inman and
Bobby Elliott were among the group of employees
who struck the Employer on that date. On August 11,
1970, the Employer sent a letter to the group of its
employees who had earlier been laid off. This group
included Velma Chambers, Elvin Clark, and Donald
Gratzer, who had all been laid off on February 12,
1970. In the letter, the Employer notified the laid-off
employees of the strike that had just commenced and
stated to them that they were now being recalled. The
letter went on to say, "Please notify [the Employer] if
you intend to return to work within seventy-two hours
and you must return to work within five working days
of this letter. Failure to do so will result in placing you
on the strike roster. " (Emphasis supplied.) The three
laid-off employees, Chambers, Clark, and Gratzer,
did not respond to the letter.
On the basis of the foregoing evidence, the Hear-
ing Officer found all five of the challenged voters to
be economic strikers. In the absence of exceptions to
the Hearing Officer's findings that each of the five
199 NLRB No. 79
Q-T TOOL COMPANY 501
voters was an economic striker, we adopt these find-
ings pro forma.
The Hearing Officer then concluded that each of
the five voters was eligible to vote under the applica-
ble Board criteria for determining the eligibility of
economic strikers to vote in elections held within 1
year of the commencement of a strike.' Both the Em-
ployer and the Petitioner except to this finding of the
Hearing Officer with respect to each of the five voters
since they claim that each of these five had obtained
other permanent and substantially equivalent em-
ployment by the date of the election and hence was
ineligible to vote.
We conclude that on the applicable criteria for
determining the eligibility of these voters, only em-
ployees Inman , Elliott, and Chambers were eligible.
Therefore, we sustain the challenges to Clark and
Gratzer.
Initially, we note that our determination of these
five voters' eligibility is to be weighed in light of the
Board's decision in Pacific Tile and Porcelain.4 There,
the Board stated 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. In order to rebut the
presumption of eligibility the party challenging must
affirmatively show by objective evidence that the eco-
nomic striker has abandoned his interest in his struck
job. The Board noted that the nature of the evidence
which might rebut the presumption would be de-
termined on a case-by-case basis, but it cautioned that
"acceptance, of other employment, even without in-
forming the new employer that only temporary em-
ployment is sought, will not of itself be evidence of
abandonment of the struck job so as to render the
economic striker ineligible to vote."5
With these considerations in mind we proceed to
an analysis of the status, on the date of the election,6
of each of the five voters challenged herein.
The following challenges are overruled.
(1) Betty Inman:' Inman, who was among the
group of employees who struck the Employer in Au-
gust 1970, began work at RCA in Bloomington, Indi-
ana, in March 1971. At the time of the election she
3 See Pacific Tile and Porcelain Company, 137 NLRB 1358 This case is
discussed below.
4 See In 3 , supra, for citation.
s 137 NLRB 1358 at 1359-60.
6 It is this date and not some later date which is crucial here . T E. Mercer
Trucking Co., 138 NLRB 192.
r In his report , the Hearing Officer commented that certain evidence sub-
mitted by the Employer and the Petitioner with respect to Inman , Clark, and
Chambers consisted of alleged postelection utterances by these three individ-
uals. The Hearing Officer mistakenly concluded that under the authority of
T E Mercer Trucking Co, supra, and Roylyn, Inc, 178 NLRB 197, those
postelection statements were entitled to no weight . Neither T E. Mercer nor
Roylyn stands for the proposition that post election statements generally are
entitled to no weight but rather those cases state that changes in status after
an election are immaterial . Thus, we have considered those postelection
statements of Inman , Clark, and Chambers in conjunction with all the other
evidence presented with respect to their eligibility.
was working at RCA and was earning $2.215 per hour
in contrast to the $2.45 per hour she was making at the
Employer on the date of the strike. RCA's fringe ben-
efits are comparable to or better than those of the
Employer.
An RCA representative testified that a month
after the election, at the Employer's request, he asked
Inman what were her intentions when she took the job
at RCA, and that her response was that she had no
desire to return to the Employer. However, Inman,
herself, testified that she had stated that she would not
return to the Employer, but she specifically noted that
it was only after she had moved her residence from
Bedford to Martinsville, Indiana, that she made this
comment. The record shows that Inman moved after
the election.' Inman stated that prior to her moving if
the Union had settled a contract she would have re-
turned to the Employer.
Although Inman testified that she was told at the
time of the interview at RCA the job she sought was
a permanent position, she testified that she never told
the interviewer she had no intentions of returning to
the Employer. She did say that the Union was on
strike and she did not think there was any hope of
settlement. Further, although she stated that she
would not return to the Employer to make less money,
it is on record that her rate of pay was higher at the
Employer on the day she struck vis-a -vis her rate at
RCA on the election date .9
The evidence demonstrates that on the election
date, Inman had not abandoned her interest in return-
ing to the Employer and she was therefore eligible to
vote. Her change of attitude, occasioned by her mov-
ing, coming as it did after the election date is immater-
ial.10
(2) Bobby Elliott: Elliott was also in that group of
the Employer's employees who struck in August 1970.
He secured work at Cornwell Company, Paoli, Indi-
ana, in January 1971, and was working there at the
time of the election. Elliott was earning $2.80 per hour
at the Employer when he went on strike and he started
at Cornwell at $2 per hour." Cornwell is only 10
blocks from Elliott's home while the Employer is lo-
cated 13 miles away. Elliott now has a second job
which is something he did not have while he worked
at the Employer. However, there is nothing in the
record showing what that second job entails and how
much additional money is supplied by it.12
B While her testimony does not make it clear precisely when she moved,
it is undisputed that ( 1) her husband tranferred jobs after the election and
(2) it was this transfer which precipitated her moving.
9It was only after the election date that her rate of pay at RCA became
larger than what she had been making at the Employer.
Roylyn, inc, supra, 200, fn 3 , and T E Mercer Trucking, supra, 193,
In. 4.
11 There is no definite evidence of how much he was making at Cornwell
on the day of the election.
12 In light of the considerably smaller salary Elliott started with at Corn-
Continued
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A representative of Cornwell was called to testify
by the Employer. This man had interviewed Elliott at
the time of his hire. The witness testified that Elliott
had written on his application that the reason he had
left the Employer was "strike-quit." The representa-
tive further testified that Elliott had also told him that
there was a strike at the Employer and that he had
quit and that he would not go back to the Employer.
When asked when Elliott told him this, the witness
said "at the time I employed him. Because we've got
the same policy the other companies have. We don't
like to hire people that's [sic] on strike, that work for
us six weeks and then go back to where they're strik-
ing from."
On the evidence before us we do not find that the
Employer and Petitioner have rebutted the presump-
tion of Elliott's continued eligibility. With regard to
Elliott's statement to Cornwell's official, even accept-
ing such statement to be true, we do not view that as
sufficient objective evidence to rebut the presumption
in the circumstances under which the statement was
made." We thus find that Elliott was eligible to vote
and the challenge to his ballot is overruled. 14
(3) Velma Chambers: Chambers was among that
group of employees laid off by the Employer in Feb-
ruary 1970.15 Although she was not working in August
1970, when she was sent a copy of the Employer's
letter in which it offered jobs to all its laid-off employ-
ees, she did not return to the Employer. She subse-
quently obtained a job at W. T. Grant in her
hometown of Bedford, Indiana, in September 1970.
She was working there at the time of the election and
was then earning $2 per hour. She was earning $2.35
per hour at the Employer when she was laid off.
A representative of Grant's, which has a policy
against hiring employees for temporary work, was
called to testify by the Petitioner and stated that on
two occasions after the election he had asked Cham-
bers whether she intended to seek permanent employ-
ment at Grant's and both times she indicated she had
no desire to return to the Employer.16 The conversa-
tions were initiated by the witness and the question
concerning Chambers' intentions was asked at least
well, the fact that Elliott has a second job may be more a necessity than the
luxury the Employer and Petitioner intimate.
13 Pacific Tile and Porcelain, supra at 1362 (employee Kuhlmey ); Roylyn,
Inc. supra at 202 (employee Keith).
I^To the extent that the Hearing Officer and our dissenting colleague
address themselves to Elliott 's subjective intent, in a discussion of his eligibili-
ty, we herewith state our disagreement with their approach The Board noted
in Pacific Tile at 1359 that attempting to discern an individual 's subjective
intent at any particular time is a less facile approach than viewing the objec-
tive evidence presented.
15 At the date of the layoff , the Union had not yet been certified as the
collective-bargaining representative of the employees . Certification followed
the layoff by 8 days.
16 The witness did not interview Chambers initially , however, and thus did
not know if Chambers had been told Grant 's policy on hiring when she
applied for the job.
the first time and possibly the second at the behest of
the Employer. The witness stated that he could not
remember if Chambers had said in the first conversa-
tion that she did not intend to return to the Employer
on the day she voted, but in the second conversation
the witness said Chambers told him that she voted
only because her husband said she might as well.
There was no showing that Chambers had been
assured of any legitimate business reason for the ques-
tioning by Grant's representative and, in the circum-
stances in which Grant's representive broached the
question of her return to the Employer, we hardly
consider her response to the second questioning as
objective evidence of her intent at the time of the
election.
Accordingly, we find that Chambers was eligible
to vote and the challenge to her ballot is overruled.
The following challenges are sustained:
(1) Elvin Clark: Like Chambers, Clark was laid
off in February 1970, by the Employer." Unlike
Chambers, however, Clark was working (at General
Electric in Bloomington, Indiana) at the time the Em-
ployer sent its letter of recall to the laid-off employees
in August 1970. In fact, Clark had been working at
G.E. since April 1, 1970, and was working there at the
date of the hearing. Clark, whose G.E. workplace was
40 miles from his home in Mitchell (where the Em-
ployer is located), was earning $2.69 per hour at G.E.
on the date of the election. This was $.04 more per
hour than he made at the Employer at the time of his
layoff. G.E. has a policy against hiring temporaries,
and it is its practice to explore with a job applicant at
the time of his interview any intention he might have
to return to his previous employment at some later
date. Clark, who commented on his job application
that he had been laid off at Employer, testified that
he understood that the job at G.E. was a permanent
job at the time he applied for it.
On the basis of the above we find Clark was
ineligible to vote. We note that he was laid off even
before the Union was certified as the bargaining rep-
resentative and that he obtained what he understood
to be a permanent job some 4 months before the strike
began. We note also that Clark made no reply to the
Employer's August 1970 letter. In fact, the only evi-
dence that Clark still had an interest in the Employer
on the election date was the fact that he voted. In
these circumstances, we sustain the challenge to
Clark's ballot.
(2) Donald Gratzer: Gratzer was also laid off in
February 1970. He initially obtained a job at the
Hamilton Harris Company from May 1970 to No-
vember 1970 at which time he was terminated. He
then worked at General Electric in Bloomington for
17 As noted, this was before the Union was certified as the bargaining
representative
Q-T TOOL COMPANY 503
a month in January-February 1971 but he quit there
because he was dissatisfied with the job. Gratzer was
unemployed at the date of the election in May 1971.
Notwithstanding the fact that he was unemployed
from February to May 1971, there is no indication
that Gratzer participated in the strike at any time.
With respect to the two jobs Gratzer held after his
layoff, he testified that the first job was not just a
temporary job when he took it and the second was
"supposedly" permanent.
On the basis of the foregoing we find that Gratzer
was ineligible to vote and that the challenge to his
ballot should be sustained. As with Clark, Gratzer
testified that before the strike commenced he secured
employment which was not just temporary and as
with Clark he did not respond to the Employer's recall
letter from layoff. And subsequent to Gratzer's layoff
there is no evidence of his interest in the affairs of the
Employer other than his voting in the election. On
such facts we find Gratzer ineligible.
As we have overruled the challenges to three bal-
lots and these are determinative of the results of the
election, we shall direct that the Regional Director
open and count the ballots of Betty Inman, Bobby
Elliott, and Velma Chambers and cause to be served
on the parties a revised tally of ballots and an appro-
priate certificate of results.
DIRECTION
It is hereby directed, that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Regional
Director for Region 25 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the date
of this direction, open and count the ballots cast by
Betty Inman, Bobby Elliott, and Velma Chambers
and thereafter cause to be served on the parties a
revised tally of ballots including therein the count of
the above-mentioned ballots. Thereafter the Regional
Director shall issue the appropriate certification in
accordance with the Board's Rules and Regulations.
MEMBER KENNEDY, dissenting in part:
I agree with my colleagues that Betty Inman's
and Velma Chambers' ballots should be counted and
that Elvin Clark's and Donald Gratzer's ballots
should not be counted. Contrary to my colleagues,
however, I would also sustain the challenge to the
ballot of Bobby Eliott.
Elliott sought and obtained employment with the
Cornwell Company several months prior to, the elec-
tion, and was still employed there at the time of the
hearing. On his application for employment with
Cornwell, he wrote the reason for leaving the Employ-
er as "strike-quit." Uncontradicted testimony shows
not only that Cornwell had an established policy of
hiring only permanent employees but that this was
specifically explored with Elliott at the time of being
hired. Elliott not only stated that he had no intention
of returning to work at Q-T Tool, but furnished spe-
cific reasons as the basis for his decision. The Hearing
Officer concluded that Elliott's subjective intent
might have been different from that stated by him
and, accordingly, found that his status continued to
be that of an economic striker after his acceptance of
permanent employment with Cornwell.
Examination of the record does not disclose the
slightest evidence of a different subjective intent on
the part of Elliott than that expressed by him at the
time of employment at Cornwell. In my view, on the
facts of this case there is no warrant for a presumption
that Elliott's subjective intent was any different from
that which was stated by him. I am of the view that
the presumption that an economic striker continues in
that status can be rebutted without adducing evidence
to foreclose every other possibility that can be con-
jured up. Just like any other question of fact, the
status of an economic striker must be evaluated on the
evidence presented. In my opinion, the evidence is
here clearly sufficient to show that Elliott abandoned
his struck job with the Employer on successfully ob-
taining permanent employment with Cornwell.