Roy N. Lotspeich Publishing Co.

National Labor Relations Board - Board Decisions

Jun 26, 1973

204 N.L.R.B. 517 (N.L.R.B. 1973)

ROY LOTSPEICH PUBLISHING CO. 517
Roy N . Lotspeich Publishing Co. and Knoxville News-
paper Guild , Local No. 76, affiliated with the Ameri-
can Newspaper Guild, AFL-CIO. Cases
10-CA-9662 and 10-RC-8734'
June 26, 1973
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND KENNEDY
On October 27, 1972, the National Labor Relations
Board issued a Decision and Order 2 in the above-
entitled proceeding finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a)(1) and (5) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended , and ordering the Respondent to
cease and desist therefrom and to take certain affir-
mative action to remedy such unfair labor practices.
Because the eligibility issue involved herein, which
was not permitted to be relitigated , raises a close legal
and policy question , the Board, on its own motion,'
has decided to reexamine and reconsider its original
Decision and Order and the entire record in the mat-
ter.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its opposition to the General Counsel's Motion
for Summary Judgment in the instant proceeding, the
Respondent had argued that the Union did not repre-
sent a majority of the unit employees and therefore its
certification was invalid because employee Steward
Judkins was ineligible to vote in the election in the
underlying representation Case 10-RC-8734. Admit-
tedly, Judkins' ballot could have been decisive in the
election, as the vote was 20 to 19 in favor of the
Union. However, we granted the General Counsel's
Motion for Summary Judgment only because we re-
fused to relitigate Judkins' eligibility which had previ-
ously been litigated in the representation proceeding.
The facts relevant to Judkins' eligibility are as fol-
1 The representation proceeding has been joined with the instant unfair
labor practice proceeding in order to determine the issues that were raised
in both proceedings
2 199 NLRB No 166.
3 In view of our determina tion herein, we find it unnecessary to rule upon
the Respondent 's motion for reconsideration filed on June 6, 1973.
lows: Judkins tendered his resignation and gave a
2-week notice about August 1, 1971, some 2 weeks
prior to the August 12 election . Later, Judkins in-
formed the Company that he would report to work
only through Tuesday, August 10. On August 10, Jud-
kins received his final paycheck , departed the prem-
ises, and did not appear for work after that date.
Included in this last check was payment for two paid
holidays earned prior to his August 10 departure. The
payroll period ended Saturday , August 14. Judkins
voted in the August 12 election , but his ballot was
challenged by the Board agent , since his name did not
appear on the eligibility list.
Although Judkins ' last day of work was Tuesday,
August 10 , the Regional Director considered that the
two paid holidays due him were taken on Wednesday
and Thursday, August 11 and 12 , and that Friday and
Saturday were his days off. The Regional Director
therefore concluded that Judkins ' final paycheck cov-
ered the full period of August 1 through August 14.
Since according to the Regional Director , Judkins was
still on the Respondent 's payroll on August 12, the
date of the election , he ruled that Judkins was an
eligible voter who met the eligibility rule requiring an
individual to be employed during the eligibility period
and on the election date . We denied the Respondent's
request for review of this ruling. The Regional Direc-
tor opened and counted Judkins' ballot along with six
other challenged ballots resulting in a 19 to 19 tie.
After two other challenges were subsequently de-
termined , the Union was found to have won the elec-
tion 20 to 19, and was certified.
In determining employee eligibility, the Board has
long adhered to the following rule set forth in Ra-Rich
Manufacturing Corporation, 120 NLRB 1444, 1447:
"It is well settled that , in order to be eligible to vote,
an individual must be employed and working on the
established eligibility date, unless absent for one of
the reasons set out in the Direction of Election." (Em-
phasis supplied .) See also N.L.R.B. v. Dalton Sheet
Metal Co., 472 F.2d 257 (C.A. 5, 1973); Schick, Incor-
porated, 114 NLRB 931, 934; Barry Controls, Incorpo-
rated, 113 NLRB 26, 27-28; Colecraft Mfg. Co., Inc.,
162 NLRB 680, 689 (remanded on other grounds 385
F.2d 998); The Crossett Company, 140 NLRB 667,
676; Family Heritage Home-Beaver Dam , Incorporat-
ed, 195 NLRB 1100. Under this rule, the Board has
held consistently that employees who are hired on the
eligibility date, but do not report for work until a later
date , are ineligible to vote. The decisions are ground-
ed on the principle that although these newly hired
employees do, in fact, have a vital interest in the out-
come of a representation election , it is incumbent
upon the Board to establish certain rules for the or-
derly conduct of its elections and to insure a certain
204 NLRB No. 61
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
degree of stability in the election process. See Green-
span Engraving Corp., 137 NLRB 1308, 1311. The
Board adheres to a similar position with respect to
employee election day eligibility status, and has held
that when an employee quits his employment and
stops working at a date prior to election day, he is not
eligible to vote. Midland Steamship Line, Inc., 66
NLRB 836, 840, 841; Ralph H. Baker d/b/a Birming-
ham Cartage Company, 193 NLRB 1057. Compare
N.L.R.B. v. General Tube Co., 331 F.2d 751 (C.A. 6,
1964}-where employee eligibility was grounded on
the employees' actually having performed work on
the day of the election. Thus, the Board's test for
employees entering and leaving the unit is the clear,
objective fact of actual work on the eligibility dates.
The Regional Director's ruling as to Judkins' eligi-
bility appears to expand the Board's previously stated
eligibility requirements and to be in direct conflict
with several of the above Board and court decisions.
Accordingly, we have reconsidered the eligibility
question and upon reconsideration, we now find that,
under our well established eligibility requirements,
Judkins, who did not work on election day, was not
eligible to vote even though he was paid for the day
and was considered to be on the payroll and to be
employed on election day. As Judkins' ballot could
have affected the results of the election and as the
commingling of Judkins' ballot with six others makes
it impossible to determine whether he had voted for
or against the Union , we conclude that the Union's
majority has not been properly established and, there-
fore , it should not have been certified .4 In these cir-
cumstances , we conclude that we must vacate our
Decision and Order which improvidently granted the
General Counsel's Motion for Summary Judgment
and we must dismiss the complaint herein in its entire-
ty.
ORDER
It is hereby ordered that the Decision and Order
issued on October 27, 1972, be, and it hereby is, vacat-
ed.
IT IS FURTHER ORDERED that the General Counsel's
Motion for Summary Judgment be, and it hereby is,
denied.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed in its entirety.
IT IS ALSO FURTHER ORDERED that the certification
issued to the Union in Case 10-RC-8734 be, and it
hereby is, revoked, and that Case 10-RC-8734 be,
and it hereby is, remanded to the Regional Director
for appropriate action consistent with the decision
herein, including the direction of a new election if
appropriate.
4 NAPA New York Warehouse, Inc, 75 NLRB 1269, 1274, cited in J I
Case Co, (unpublished ) 23 LRRM 1667, 1668