Roylyn, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1969

178 N.L.R.B. 197 (N.L.R.B. 1969)

ROYLYN, INC. 197
Roylyn, Inc. Employer-Petitioner and International
Association of Machinists , District 727, Local 758,
AFL-CIO. Case 31-RM-142
August 22, 1969
DECISION AND DIRECTION TO OPEN
AND COUNT CHALLENGED BALLOTS
Pursuant to a stipulation for certification upon
consent election, an election by secret ballot was
conducted on August 9, 1968, under the direction
and supervision of the Regional Director for Region
31, among the employees in the unit agreed upon by
the parties. At the conclusion of the election, the
parties were furnished with a tally of ballots which
showed that of approximately 132 eligible voters,
117 cast ballots, of which 36 were for the Union, 53
were against, and 28 were challenged. The
challenged ballots were sufficient in number to
affect the results of the election. No objections were
filed to conduct affecting the results of the election.
Pursuant to the provisions of the National Labor
Relations Board Rules and Regulations, after
reasonable notice to the parties and opportunity to
present relevant evidence, the Regional Director
conducted an investigation of the issues raised by
the challenges and on November 6, 1968, issued and
served upon the parties his Report on Challenged
Ballots, attached hereto, recommending that the
challenges to the ballots cast by Charles Weyhrauch,
Otto Hager, Robert Knapp, Frank Van Wagner,
and John Bozis be sustained, and further
recommending that the challenges to the ballots cast
by Imants Bozis, Thomas Byrd, James Brazier,
Jarold Comer, Lynn Davis, Walter Dietrich, Emery
Gant, Donald Heath, Frank Lewis, John Roberts,
William Stuckenbroker, Jack Wiley, James
Anderson, A. E. Berthold, Lawrence Clarke,
Lawrence Henry, Garvin Keith, James Maclsaac,
Frank Rodriquez, Stephen Scordato, Mitchell
Truesdale, Ralph Wortelboer, and Faustina Asbury
be overruled and that their ballots be opened and
counted. Thereafter, the Employer filed timely
exceptions to the Regional Director's
recommendation regarding the challenges to ballots
cast which were overruled, and to the challenge of
the ballot of Charles Weyhrauch, which was
sustained. No exceptions were filed by the Union.
Upon the entire record in this case, the Board
finds:
1. The Employer-Petitioner 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
concerning 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 agreed, and we find, the following
employees constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of the Act:
All production and maintenance employees,
including shipping and receiving employees,
janitors, truckdrivers, leadmen and working
foremen; but excluding all office clerical
employees and watchmen, and also excluding
guards, supervisors, and professional employees,
as defined in the Act.
5. The Board has considered the Regional
Director's Report and the Employer's exceptions
thereto, and as the exceptions raise no material or
substantial issues of fact or law which would
warrant reversal or require a hearing, we hereby
adopt the Regional Director's findings and
recommendations.
Our dissenting colleagues conclude that some of
the strikers abandoned their jobs, apparently basing
this upon their interpretation of employee rights or
employer obligations under the contractual vacation
clause. It is clear from that Article of the contract
that employees could request vacations for periods
other than the general vacation period which the
employer customarily designated.' It cannot be
determined from the face of the contract what rights
were conferred by that provision upon the employees
or what obligations devolved upon the company. We
are not called upon and do not purport to determine
that question.
The sole issue in this proceeding upon which our
colleagues disagree is whether the action of certain
employees herein, i.e., signing a quit slip in order to
obtain vacation pay, 'is sufficient to show that
economic strikers abandoned their interest in their
struck jobs and lost the status of economic strikers
for purposes of eligibility.' On the facts of this case
it is patent that the strikers did not wish to abandon
their employee status and did not sign the quit slips
with that intent . Therefore, there could be no such
abandonment regardless of other possible legal
effects of their action.' Accordingly, we find that the
Employer has not affirmatively shown by objective
evidence that these strikers abandoned their interest
in their struck jobs, and that the presumption that
an economic striker remains in such status has not
been rebutted."
ARTICLE VII: VACATIONS
4 Vacation periods shall conform to the requirements of the Company's
operations and the Company reserves the right, in accordance with its past
practice to designate a general vacation period for all employees, provided
ninety (90) days notice thereof is given. It is further agreed that such general
vacation period will fall between the dates of June 15th and September
15th Ihecompany agrees, however , to give due consideration to requests
made by employees for vacation during periods other than those herein
set forth.
'Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359.
'We do not, of course , question the validity of the statement that an
employer need not finance a strike against itself. However, this is not
relevant in the instant case, where the only issue is whether an
abandonmelit occurred.
'Cf Guyon Machinery Company, 155 NLRB 591, 593-594; S & M
Manufacturing Company, 165 NLRB No. 59.
178 NLRB No. 33
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have adopted the Regional Director's
recommendation that the challenges to the 23
above-designated ballots be overruled and these
ballots may effect the results of the election, we
shall direct that the Regional Director open and
count these ballots and cause to be served on the
parties a revised tally of ballots and an appropriate
certificate.
DIRECTION
It is hereby directed that, as part of his
investigation to ascertain the representative for
purpose of collective bargaining with the Employer,
the Regional Director for Region 31 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 Imantz Bozis, Thomas Byrd,
James Brazier , Jarold Comer, Lynn Davis, Walter
Dietrich, Emery Gant, Donald Heath, Frank Lewis,
John Roberts, William Stuckenbroker, Jack Wiley,
James Anderson, A. E. Berthold, Lawrence Clarke,
Lawrence Henry, Garvin Keith, James Maclsaac,
Frank Rodriquez, Stephen Scordato, Mitchell
Truesdale, Ralph Wortelboer, and Faustina Asbury,
and thereafter prepare and cause to be served upon
the parties a revised tally of ballots including therein
the count of the above-mentioned ballots and an
appropriate certificate.
CHAIRMAN MCCULLOCH and MEMBER ZAGORIA
dissenting:
We would not adopt the Regional Director's
Report on Challenges, insofar as it finds eligible
eight strikers who signed termination slips in whole
or in part to secure immediate receipt of vacation
pay.'
The collective-bargaining agreement which had
just expired provided that employees were to receive
1, 2, or 3 weeks of vacation, with pay. It further
provided that vacation periods were to conform to
the requirements of the Company's operations. The
Employer had the right, in accordance with its past
practice, to designate a general vacation period for
all employees, providing 90 days' notice was given,
and providing further that such general vacation
period was to fall between the dates of June 15 and
September 15. There was, however, a provision that
laid off or terminated employees would receive pay
in lieu of vacation, at the time of layoff or
termination.
It appears that the Employer attempted to
continue operations during the strike, but did not
designate a general vacation period, nor did it agree
that any striking employee could take a vacation
during the period of the strike. Rather, the eight
strikers, whose status is under consideration,
voluntarily came to the Employer's premises, on
dates between January 8 and June 7, 1968, and
'The eight strikers are 1. Bozis, Byrd , Comer, Davis, Gant, Lewis,
Roberts, and Stuckenbroker.
agreed to sign termination slips in order to receive
their vacation pay at once. These requests by the
strikers were clearly in advance of the general
vacation period contemplated by the contract. The
employees signed the termination slips, and received
their accrued vacation pay.
We can readily understand how strikers, pressed
for funds during a strike, might take the action
taken by the eight strikers in this case. However, the
Employer was under no contractual obligation to
pay the strikers vacation pay at the times they
requested such payment. Nor, indeed, is there any
legal or moral requirement that an employer help
finance a strike against himself by paying sums of
money not contractually due the strikers. These
employees knowingly and voluntarily quit their jobs.
They may have had mental reservations, to the
effect that their real purpose was to obtain the
vacation pay. But we cannot presume that these
employees, fully informed that the only way to get
the money immediately was to quit, did not make a
reasoned choice to do so. We therefore see no legal
or ethical justification for restoring to the strikers
the employment status which they agreed to give up
in order to realize a desired contractual benefit." We
would, accordingly, sustain the challenges to the
ballots of the eight strikers in question, along with
the four challenges sustained by the Regional
Director. As the remaining 16 challenged ballots are
insufficient to affect the results of the election, we
would certify the results.
`The cases cited by the Regional Director , in which no effect was given
to termination forms signed by strikers to assist them in securing other
employment, are distinguishable in that they did not involve the giving of a
quid pro quo by the employer , or the implementation of a contractual
agreement.
REPORT ON CHALLENGES
Pursuant to a petition filed on July 19, 1968, and a
Stipulation for Certification Upon Consent Election
thereafter executed by the parties, an election by secret
ballot was conducted under the direction and supervision
of the Regional Director for Region 31 on August 9,
1968, among the employees of the Employer in the unit
agreed appropriate.' After the election each party was
furnished with a tally of ballots which showed that of
approximately 132 eligible voters, 117 cast ballots, of
which 36 were for the Union, 53 were against, and 28
were challenged. The challenged ballots are sufficient in
number to affect the results of the election.
Pursuant to Section 102.69 of the Board's Rules and
Regulations, Series 8, as amended, after reasonable notice
to the parties to present relevant evidence, I have
completed an investigation of the challenged ballots, duly
considered all evidence submitted by the parties and
otherwise disclosed by the investigation, and hereby issues
this Report thereon.
All production and maintenance employees , including shipping and
receiving employees , ,janitors, truckdrivers , leadmen and working foremen,
but excluding all office clerical employees and watchmen , and also
excluding guards, supervisors and professional employees , as defined in the
Act.
ROYLYN,
Charles Weyhrauch was challenged by the Union on the
ground that he was not employed in the bargaining unit.
The others were challenged by the Employer: James
Brazier, as a technical employee; Ralph Wortelboer,
Frank Van Wagner, Mitchell Truesdale, Stephen
Scordato, Frank Rodriquez, James Maclsaac, Garvin
Keith, Lawrence Henry, Lawrence Clarke, John Bozis,
Alfred Berthold, Faustina Asbury, and James Anderson as
strikers who had secured other employment, and Jack
Wiley, William Stuckenbroker, John Roberts, Frank
Lewis, Robert Knapp, Donald Heath, Otto Hager, Emery
Gant, Walter Dietrich, Lynn Davis, Jarold Comer,
Thomas Byrd, and Imants Bozis as strikers who had
voluntarily quit. The election took place against the
background of an economic strike initiated by the Union
on or about January 3, 1968, and which is still continuing.
Charles Weyhrauch. The Union claims that Weyhrauch
is employed as a guard and therefore is ineligible The
Employer contends that Weyhrauch is classified as a
bargaining unit trainee and has only been temporarily
assigned to observation of pickets and, therefore, is
eligible to vote. Weyhrauch was employed early in the
strike as a uniformed Pinkerton guard assigned to the
Employer's location He told an officer of the Employer
that he would like to learn a trade, inquired as to the
possibility of employment, and thereupon was hired with
the prospect of becoming a shop trainee. When he started
work for the Employer about June 15, 1968, however, his
immediate assignment was to watch for persons placing
nails in the driveway of the Employer's plant. It appears
that littered nails had caused numerous flat tires during
the course of the strike. Certain pickets were suspected as
the perpetrators and Weyhrauch was delegated to this
assignment because he had learned to recognize the
pickets during the course of his Pinkerton duties. The
Employer assigned its own employee rather than a
Pinkerton man to this duty because the Pinkerton guards,
by terms of the agreement between Pinkerton and the
Employer, would not remove littered nails, whereas
Weyhrauch could and did perform such service after being
hired by the Employer. In this employment he wore no
uniform and was not armed. He states that his assignment
was to watch the pickets to see that they did not try to
put down nails or to destroy property and to remove any
nails put down on company property. He was told that as
soon as things quieted down he would be brought into the
shop, but, except for brief shop assignments, apparently
totaling less than 8 hours in all, he remained on the
outside assignment until well after the election.
The agreed-upon unit description specifically excludes
watchmen, as well as guards. The Employer concedes that
Weyhrauch was used for observation of the pickets but
argues that this was only a temporary assignment.
Inasmuch as it was substantially the only assignment
given Weyhrauch from the start of his employment until
after the election, the undersigned concludes that
Weyhrauch was employed as a watchman or guard at all
times pertinent herein and, accordingly, recommends that
the challenge to his ballot be sustained.
Imants Bozis and Thomas Byrd: The Employer claims
that Bozis and Byrd were strikers who voluntarily
terminated their employment prior to the election date
and, thereby, became ineligible voters. The Union
contends that they did not abandon their status as strikers
and, therefore, remained eligible. Bozis and Byrd were
unit employees who joined in the strike at its inception.
On February 9, Bozis returned to the Employer's plant
and signed two company forms, a "Notice of Change of
INC. 199
Status" and a "Notice to Employee Change in
Relationship," which showed that he voluntarily
terminated to take other employment and showed that a
check for 30 hours vacation pay was to be mailed to him.
The space provided on the Notice to Employee form to
show the name of the prospective new employer was left
blank. Byrd signed similar forms on June 7, 1968, which
showed as reason for termination, "resigned to obtain
vacation money" and showed 32 hours vacation pay due
him. Both Bozis and Byrd have had short periods of
employment during the strike and, in fact, Bozis was
employed at the time he signed the termination forms; but
each asserts that he has not abandoned his position with
the Employer and intends to resume such employment on
the termination of the strike. Other than the signed
termination forms, no evidence has been offered to the
contrary.
The investigation shows that the Employer, in
accordance with its interpretation of the union contract,
refused to distribute accrued vacation pay to any striker
unless the striker signed termination forms, except in
certain instances where it declared a striker permanently
replaced and awarded the striker a check for his vacation
accrual along with notice of the replacement. Both Bozis
and Byrd state that they needed their accrued vacation
pay, requested it of the Employer, and learned that they
would have to sign termination forms to get it. Bozis, who
told the Employer that he was taking another job, signed
the forms without question. Byrd, when told that he would
have to show himself as voluntarily quit in order to get
the pay, refused to do so and threatened that he would file
charges. Several days later an agreement was reached in
accordance with which Byrd signed the termination forms,
but with the added notation, "resigned to obtain vacation
money," and thereupon received his vacation pay.
The Board has stated that an economic striker is
presumed to continue in such status and, hence, to be an
eligible voter, unless the challenging party shows
affirmatively by objective evidence that the voter has
abandoned his interest in the struck job 2 The undersigned
concludes that, in the circumstances present in this case,
the signing of termination forms for the purpose of
obtaining vacation pay does not, standing alone, provide
sufficient basis for a finding that the signator has
abandoned the strike. Accordingly, it is recommended that
the challenge to the ballots of Bozis and Byrd be
overruled.
James Brazier, Jarold Comer, Lynn Davis, Walter
Dietrich, Emery Gant, Otto Hager, Donald Heath, Robert
Knapp, Frank Lewis, John Roberts, William
Stuckenbrocker, Frank Van Wagner, and Jack Wiley. The
employees in this group all are strikers who are claimed
by the Employer to have voluntarily terminated their
employment and, in addition, to have taken other and
substantially equivalent employment. The Union contends
that none of them has abandoned his status as a striker
eligible to vote
Brazier started with the Employer in May 1966. On
March 6, 1968, he secured a job which payed less than his
previous position with the Employer and he was still so
employed at the time of the election. On July 29, 1968, he
signed termination forms which showed, "voluntarily
terminated for:-personal reasons," and further showed,
"46 hours vacation." Brazier states that he considers his
present employment temporary and intends to return to
the Employer when the trade dispute is settled.
'Pacific Tile and Porcelain Company, 137 NLRB 1358
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comer started with the Employer in July 1962. He
applied for jobs at two plants where suitable vacancies
existed but was rejected when he stated that he was on
strike and intended to return to the Employer when the
strike ended. In April 1968, he appeared at the
Employer's plant and said that he wanted to terminate in
order to get his vacation pay and to seek other
employment. He signed termination forms which included
the statement, "I voluntarily terminate my employment
with Roylyn to accept employment with another
company," and also showed 30 hours vacation due.
Comer did not gain other employment until June 1968,
when he got a job at $3 an hour, which he left in July for
a job which paid $3.50 an hour and at which he still was
employed at the time of the election. When the strike
started Comer was earning $3.79 an hour. He states that
because of his accumulated seniority at Roylyn, the higher
pay, his familiarity with the work, and certain fringe
benefits which he considers superior, he intends to return
to it when the strike is settled.
Davis started with the Employer in January 1963. Soon
after the strike started he was offered employment at
another plant at a rate of $4.10 an hour, as compared to
his rate of $4.05 an hour at the time the strike started. He
started work at the new job on or about January 22, 1968,
and was still so employed at the time of the election.
After being offered the new job, Davis phoned the
Employer and was told that he would have to terminate if
he wished to get his vacation pay. On January 18, 1968,
Davis appeared at the Employer's office and signed forms
stating that he was terminating for other employment and
that, "I am voluntarily terminating my position with
Roylyn, Inc. effective this date. Am taking a permanent
position with another company." One of the forms also
showed 32 hours vacation accrued. Davis states that he
has, at all times, intended to return to the Employer when
the strike is settled, despite his present higher rate of pay
and fringe benefits he considers equivalent, because of his
seniority with the Employer and the fact that overtime
work granted by the Employer last year made his total
earnings an estimated $2500 more than the anticipated
annual earnings on his present job.
Dietrich started with the Employer in April 1965. After
applying for employment at several plants and being
rejected when the prospective employers learned he was on
strike, he heard that one plant was hiring and thereupon
went to the Employer's office, on February 21, 1968, and
stated that he wanted to quit so that he could get the
other job. He signed termination forms showing voluntary
termination to take a job with a specified company,
further stating, "This is to notify Roylyn that I am
voluntarily terminating myself to take another permanent
position" and showing 54 hours accrued vacation. He got
the desired job but was laid off a month later. In April he
got another job at which he is still employed. He now
earns $3.75 an hour as compared with his rate of $3.58
with the Employer and declares that he is pleased with his
present job but that he still intends to return to the
Employer when the strike is over because his present place
of employment requires an hour of driving each way,
whereas the Employer's plant is only 5 minutes' drive
from his home. He points out that he took off 1 hour
early from his present job in order to vote, and, like all
the other strikers who voted, he furnished his own
transportation in going to vote and was not compensated
for his time or expense.
Gant started with the Employer in March 1966. He got
another job in March 1968, but was fired when his new
employer learned that he had not terminated his
employment with the Employer. In April he found
another job but was laid off after a month. On June 10,
he went to the Employer and signed termination forms
showing as reason, "Voluntary resignation to seek other
employment," and showing 60 hours vacation accrued. He
left his job in July to take yet other employment, which
lasted until shortly after the election, when he was laid off
again. He since has found other employment but states
that he, at all times, has intended to return to the
Employer when the strike is settled. He states that he
signed the termination forms because he had to do so to
get his vacation pay.
Hager started with the Employer in February 1963. He
suffered a heart attack in December 1967, and was not
able to resume work until June 1, 1968, at which time he
told the Union he was joining the strike. On June 10 he
went to the Employer's office, said that he wanted to quit
in order to get his vacation money and to get another job,
and signed termination papers. The termination forms
showed as the reason for resignation, "to take another job
with L. A. Trade Tech," and also showed 58 hours
vacation accrued. In addition, Hager gave the Employer a
signed letter which, in its entirety, stated.
Due to the conditions which prevailed at Roylyn, Inc.
prior to my heart attack of Dec. 30, 1967, and the
conditions which currently exist, I have been advised by
my Doctor not to return to work at Roylyn, Inc.
I therefore must terminate as of this date, June 10,
1968, for financial reasons. I must return to work but
will not be able to withstand such pressures as I have
been subjected to by Roylyn management in the past.
Hager did not get the job for which he had applied at L.
A. Trade Tech., but about a week after he signed the
termination forms he applied and was hired at another
establishment, where he is still employed. When
interviewed for his present job, Hager was asked what he
would do if the strike were settled at Roylyn, and he
replied that he intended to stay at the new job. At the
time of the election' Hager was earning $4.05 an hour,
including a night shift differential, as compared with the
rate of $3.99 an hour earned at the time he became ill, but
since the election he has received a pay increase. Hager
states that despite the difference in earnings and the fact
that the Employer's plant is about a 25-minute drive from
his home, as compared with a 10-minute drive to his new
job, he, at all times relevant, has intended to return to
work for the Employer because he considers the fringe
benefits and some of the working conditions superior; and
he points to the fact that he lost 1/2 hour of worktime
without compensation in order to vote in the election. He
explains that by "conditions which prevailed," mentioned
in the termination letter quoted above, he refers to work
pressures occasioned by the fact that he had to take care
of a variety of tasks at the Employer, while the mention
of "conditions which currently exist" refers to the strike.
Heath started with the Employer in September 1965.
On June 17, 1968, after he had been refused other
employment because he was on strike, he appeared at the
Employer's office, said he wanted to terminate in order to
get other employment, and signed termination forms. The
forms show as reason for the termination, "to seek other
work," and show 12 vacation hours accrued. In July he
secured a job on which he is still employed. At the time of
the election he was earning $3.15 an hour, as compared
'Changes in status after the election are immaterial . T E Mercer
Trucking Co, 138 NLRB 192
ROYLYN, INC.
with his rate of $2.87 at the time the strike started, but he
states that he would return to the Employer if the strike
were settled because his present employer is planning to
move to a location some 30 miles from his home, whereas
the Employer's plant is within walking distance; because
he now is on night shift, whereas he worked days at the
Employer's plant; and because he considers the
Employer's fringe benefits and working conditions
superior.
Knapp started with the Employer in July 1962, and
joined the strike at its inception. Knapp was denied
employment at several establishments, including the one
where he later was hired, because the prospective
employers learned that he was on strike. On June 17,
1968, he went to the Employer's office and stated that he
was quitting in order to get his vacation pay and because
he needed a notice of termination in order to get other
work. He signed termination slips which showed as reason
for termination, "to seek other employment," and showed
30 hours vacation accrual. In July he reapplied at a plant
where he previously was rejected, showed a copy of his
termination slip, and was hired for a job which he still
retains. His present hourly rate is 3 cents an hour less
than with the Employer, but his total earnings are
approximately $20 a week more, due to increased
overtime. He states that he would return to the Employer
only if a strike settlement provided for a pay increase, all
the improved benefits sought by the Union, and
termination of "scabs."
Lewis started with the Employer in December 1965. On
June 6, 1968, Lewis went to the Employer's office, advised
the Employer that he was taking a job in San Diego,
California, and asked for his vacation pay. He learned
that he would have to sign termination forms to receive it,
and he signed such forms on June 6 and 10, which showed
as reason for resignation, "to take another job with Wayn
Hudson, San Diego," and showed 80 hours vacation due.
He started to work in San Diego about a week later, but
left his family in Los Angeles. Before going to San Diego,
Lewis had applied for jobs in the Los Angeles area, but
had been refused when the prospective employers learned
he was on strike. His San Diego employer is a relative
who was aware that Lewis was on strike and that he
hoped to return to his job with the Employer. In the new
job Lewis earned $90 a week, as compared to over $130 a
week (including overtime pay) with the Employer. He
drove to Los Angeles without compensation in order to
vote in the election, and left the San Diego job late in
August in order to seek work in the Los Angeles area. He
states that it has been his intention, at all times, to return
to the Employer when the strike is settled.
Roberts started with the Employer in May 1960. He
was refused employment at some plants when he said that
he was on strike. On February 23, 1968, he applied for
work at another plant, saying that he was terminating
from the Employer and did not intend to return there.
Immediately thereafter he went to the Employer's office
and said he wanted to terminate in order to get his
vacation pay and to avoid any complications on his new
job. He signed termination forms which showed as his
reason for resigning the taking of another job with the
named new employer, stating, "I am voluntarily
terminating for another job," and showed 48 hours
vacation pay due. His new employment at the time of the
election paid $3.55 per hour, as compared with his $3.38
rate when the strike started, but he states that he had
intended to return to the Employer when the strike ends,
even though he might have to take a cut in pay, because
201
the new job is 50 miles from his home, whereas the
Employer's plant is about 15 miles distant and because he
preferred the working conditions at the Employer.
Stuckenbroker started with the Employer in August
1961. He secured another job about 2 weeks after the
strike started and is still so employed. On May 6, 1968,
he went to the Employer's office, asked for his accrued
vacation pay, and was told that he could get the pay only
if he agreed voluntarily to terminate. Stuckenbroker
signed termination forms which state, "Strike conditions,
new employment, forces me to voluntarily quit," and
shows 30 hours vacation due. Stuckenbroker states that
his new employment had nothing to do with his signing
the termination forms, and that his sole reason was to
procure the vacation payment in order to pay some bills.
His new job pays $3.66 an hour, including a night shift
differential, as compared to $3.69 an hour earned when
the strike started. His total earnings now are greater than
his total with the Employer because of increased overtime
hours, but Stuckenbroker states that it is his intention to
return to the Employer when the strike ends because of
his seniority at the Employer, fringe benefits granted by
the Employer which he considers superior, and his
preference for a day-shift assignment which he enjoyed
with the Employer.
Van Wagner started with the Employer in January
1953. On July 1, 1968, he secured employment which he
still retains. On July 30, he went to the Employer's office,
advised the Employer that he had secured other
employment and desired his vacation pay, and, upon being
advised that he would have to terminate in order to
receive the pay, signed termination forms. The forms
showed the purpose of the resignation was to take another
job with the named new employer, and showed 100 hours
vacation pay accrued. Van Wagner earns $3 an hour at
his present job, as compared to $3.79 earned when the
strike started, and the reduction in total earnings is
proportionately even greater because there is no overtime
work at the new job At the time he was hired he told the
new employer that he planned to work only for 1 more
year before retiring and that he would stay on the new job
unless the strike were settled at Roylyn, and unless the
strike settlement included the Employer's agreement to
the pension plan proposed by the Union, and Van Wagner
states that this was still his intention at the time of the
election.
Wiley started with the Employer in October 1963.
About a week after the strike started he obtained another
job which he still holds. On January 17, 1968, he advised
the Employer of his new employment and termination
forms were prepared which, however, he did not sign. A
copy of a termination notice from the Employer, together
with a vacation check and final pay, were mailed to him
soon after. Wiley earns $3.06 on his new job, as compared
with $2.87 earned when the strike started. At the time of
his hire he told the new employer that he intended the new
job to be permanent, but he states that soon after he
started on the new job he found he did not like the nature
of the work and decided he would return to the Employer
when the strike ended, and declares that is still his
intention. He points to the fact that he has maintained his
membership in the Union, even though his present
employment does not require him to do so.
Each employee in this group, except Wiley, has stated
that he signed the termination forms only because this was
required in order to procure vacation pay or as a means
toward gaining other employment, or for both reasons.
Many of those in the group, like Comer, Dietrich, Gant,
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Knapp, either were told directly by prospective
employers that they would be hired only if they gave
termination notice to the struck employer, or they learned
that to be the case by hard experience. In such
circumstances, the undersigned finds that the termination
slips, signed or unsigned , generally carry little weight in
establishing whether the striker genuinely was signifying
the abandonment of his job with the Employer.' An
exception appears in the case of Hager, who stated that
his health condition would not permit him to work for the
Employer under the conditions which prevailed prior to
the strike. Inasmuch as there is no reason to assume that
the outcome of the strike would change the conditions
which Hager's doctor found deleterious to his health.
Knapp, likewise, has set such conditions on reinstatement
as to lead to the conclusion that he has in fact abandoned
his position with the Employer. In the case of Van
Wagner, the investigation has confirmed the evidence
offered by the Employer that Van Wagner has announced
his intention to retire about July 1969, and has stated that
he would go back to work for the Employer only in the
event that the Employer should adopt a pension plan
whereby approximately 6 months' additional work would
render him eligible for a pension. The undersigned
concludes that Hager, Knapp, and Van Wagner are not
eligible voters, and recommends that the challenge to their
ballots be sustained. As to Brazier, Comer, Davis,
Dietrich, Gant, Heath, Lewis, Roberts, Stuckenbroker,
and Wiley, the undersigned concludes that the evidence
offered by the Employer in each case is insufficient to
rebut the presumption that they are eligible voters and,
accordingly, recommends that the challenges to their
ballots be overruled.
James Anderson, A. E. Berthold, John Bozis, Lawrence
Clarke, Lawrence Henry, Garvin Keith, James MacIsaac,
Frank Rodriquez, Stephen Scordato, Mitchell Truesdale,
and Ralph Wortelboer: The employees in this group all
are strikers who joined the strike at its inception. and are
claimed by the Employer to have obtained other regular
and substantially equivalent employment thereafter. The
Union contends that none of them has abandoned his
status as a striker eligible to vote. The Employer has
offered evidence that Anderson was hired elsewhere in
April 1968, but was subsequently laid off and was
unemployed at the time of the election; that Berthold, in
February, was hired at a job which he still holds; that
John Bozis, in April 1968, procured a permit to operate a
machine shop and went into business for himself; that
Clarke secured other employment at a rate higher than he
earned before the strike, and told an employer
representative that he was leaving Roylyn; that Henry
secured other employment at a higher rate of pay and
requiring the payment of a very high initiation fee; that
Keith secured other employment at a higher rate of pay
and told his new employer that he was abandoning his job
at Roylyn; that Maclsaac held other employment for 2
weeks in July; that Rodriquez secured other employment;
that Scordato secured other employment; that Truesdale
secured other employment at a higher rate of pay after
telling the interviewer that he wanted a permanent job;
and that Wortelboer, during the period of the strike and
prior to the election, was hired as a full-time permanent
employee first at one job and then at another, each of
'Guyon Machinery Company , 155 NLRB 591, 593; S & M
Manufacturing Company, 165 NLRB No. 59. The matter of S & M
Manufacturing Company. 172 NLRB No . 104, cited by the Employer,
clearly is inapplicable.
which jobs he quit. As to Clarke, Henry, and Keith, it
also is asserted that in their post-strike employment they
made voluntary contributions to insurance or retirement
plans sponsored by their new employers.
None of the employees in this group signed termination
forms. Anderson, Bozis, Henry, Rodriquez, Scordato, and
Truesdale still have vacation pay due them from the
Employer, which, they state, they have not claimed
because they do not wish to sign termination forms.
Berthold, Clarke, Keith, Maclsaac, and Wortelboer
received notices from the Employer advising them that
each had permanently been replaced and tending the
vacation pay due.
John Bozis started with the Employer in August 1962,
and was earning $3.94 an hour when the strike started. He
secured other employment about January 15, 1968, at a
rate of $3.95 an hour, but was laid off about the end of
March because he would not work 10 hours a day as
required by this employer. Meanwhile, Bozis had been
setting up a machine shop in premises which he leased on
a month-to-month basis and which he furnished with a
lathe and tools costing a total of approximately $6,200.
He secured a municipal business permit early in April,
had business cards printed, installed a telephone in the
shop, and subcontracted to do machine work for other
businesses. Since April 1, 1968, he has worked an average
of 20 hours a week in the shop, plus an average of 20
hours a week soliciting business, and has netted roughly
$650 a month after paying monthly expenses of about
$100. He has no help in the shop. Bozis states that he still
intends to return to the Employer when the strike is
settled and to operate the shop in his spare time. He
points to the fact that he has not signed termination. forms
to claim his vacation pay and that he has continued to
perform picket duty on weekends at the Employer's plant.
Clarke started with the Employer in December 1958,
and was working day shift and earning $3.49 an hour
when the strike started. He secured other employment in
May 1968, which he held until shortly after the election.
On this job, at the time of the election, he earned $3.43 an
hour, working nights, and voluntarily contributed to
insurance plans. He states that he told the new employer
that he hoped to return to his former job when the strike
was settled.
Henry started with the Employer in June 1963, and was
earning $4.25 when the strike started. In March 1968, he
secured employment at a rate of $4.67 an hour, but his
total earnings were about the same as before the strike
due to the difference in overtime. He was required to join
the incumbent union, whose initiation fee is $225, but
Henry has been permitted to pay the fee in installments
and has been told that it could be cancelled in part if he
returned to his former employment. Henry states that it is
his intention to return to the Employer when the strike
ends, and points to the fact that he has refused to sign
termination forms to claim vacation pay due him and that
he lost work time in order to vote in the election.
It appears that the investment of time and money made
by John Bozis in his machine shop operation, including
the fact that he would not work the hours required to
retain his interim employment, are such that he could not
reasonably have been expected to abandon the investment
or relegate the shop to a spare-time operation. The
undersigned concludes that Bozis had abandoned his
employment with the Employer at the time of the election
and recommends, accordingly, that the challenge to his
ballot be sustained. As to the other employees in this
group, it does not appear that the challenging party has
ROYLYN, INC. 203
sustained the burden of proof that any of them has
abandoned the struck fob.' Accordingly, the undersigned
concludes that Anderson, Berthold, Clarke, Henry, Keith,
Maclsaac, Rodriquez, Scordato, Truesdale, and
Wortelboer were eligible voters and recommends that the
challenges to their ballots be overruled.
Faustina Asbury: No evidence has been offered by the
Employer in support of its challenge to Asbury's ballot.
Asbury started with the Employer in January 1959, and
joined the strike at its inception. She secured other
employment in May 1968, which she held until some time
after the election. The undersigned concludes that she was
an eligible voter and recommends that the challenge to her
ballot be overruled.
Conclusion
For the reasons set forth above and upon the
investigation as a whole, the undersigned has concluded
that Imants Bozis, Thomas Byrd, James Brazier, Jarold
Comer, Lynn Davis, Walter Dietrich, Emery Gant,
Donald Heath, Frank Lewis, John Roberts, William
Struckenbroker, Jack Wiley, James Anderson, A. E.
Berthold, Lawrence Clarke, Lawrence Henry, Garvin
Keith, James Maclsaac, Frank Rodriquez, Stephen
Scordato, Mitchell Truesdale, Ralph Wortelboer, and
Faustina Asbury were striking employees eligible to vote
in the election and, accordingly, has recommended that
the challenges to their ballots be overruled; and, further,
has concluded that Charles Weyhrauch was not a unit
employee and that Otto Hager, Robert Knapp, Frank Van
Wagner, and John Bozis had abandoned the strike and,
accordingly, has recommended that the challenges to their
ballots be sustained. Inasmuch as the overruled challenged
ballots are sufficient to affect the results of the election, it
further is recommended that they be opened and counted
and a revised tally of ballots issue.
As provided in Section 102.69 of the Board's Rules and
Regulations, Series 8, as amended, any party desiring to
take exception to this Report and the recommendations
herein may, within 10 days from the date of issuance of
this Report, file with the Board in Washington, D. C.
20570, eight copies of such exceptions. The party filing the
same shall serve a copy thereof upon the other party and
shall file a copy with the Regional Director of Region 31,
National Labor Relations Board, 10th Floor, Bartlett
Building, 215 West Seventh Street, Los Angeles,
California 90014.
'The Employer' s assertions as to certain challenged strikers , such as that
one "is permanent full-time employee ," or that a new employer will not
hire strikers intending to return to the former employer, are insufficient to
require further investigation . Pacific Tile and Porcelain Company, supra
To the extent not specifically discussed , I have assumed as true all
allegations made by the challenging party setting forth statements
purportedly made by challenged voters concerning their intentions as to
reinstatement with the Employer