Safeway Trails, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1342 (N.L.R.B. 1976)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safeway Trails , Inc, Employer-Petitioner, and United
Transportation Union and its Local #1699, AFL-
CIO Case 5-RM-777
June 18, 1976
DECISION ON REVIEW
By MEMBERS FANNING, JENKINS, AND WALTHER
On January 14, 1976, the Regional Director for
Region 5 issued his Decision and Direction of Elec-
tion in the above-entitled proceeding, wherein he
found, inter alga, with respect to the eligibility of un-
replaced economic strikers, that the 21 most senior
strikers on the Employer's list of strikers with rein-
statement rights were eligible to vote in the election
Thereafter, in accordance with Section 102 67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Union filed a timely
request for review of the Regional Director's decision
on the grounds, inter alga, that in reaching the above
determination he made erroneous findings of fact
and departed from precedent
On March 8, 1976, the National Labor Relations
Board by telegraphic order granted the request for
review only with respect to issues raised as to the
voting eligibility of the economic strikers and stayed
the election pending decision on review Thereafter,
both the Employer and the Union filed briefs on re-
view
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 entire record in this
case with respect to the issues under review, includ-
ing the briefs on review, and makes the following
findings l
The Employer is engaged in the interstate motor
coach transportation business at terminals in various
cities of the northeastern corridor of the United
States The Union has represented the Employer's
busdrivers for a number of years On April 2, 1972,
the Union commenced an economic strike against
the Employer There were about 306 operators em-
ployed when the strike began Although the Employ-
er ceased all operations at the outset of the strike, it
resumed service on January 13, 1973, with superviso-
i On May 14 1976 the Employer sought leave to withdraw its petition
the Union has filed a letter in opposition In light of the Union s opposition
the unrest caused by the lengthy strike and the fact that the Employer
formerly recognized the Union as the bargaining representative of its em
ployees for over 30 years we have decided not to permit the petition to be
withdrawn See sec 111142 of the Boards Casehandling Manual (Part
Two) Representation Proceedings
ry personnel performing the work of unit employees
Thereafter, it started hiring permanent replacements
for the striking drivers
The Union advised the Employer on March 12,
1975, that it was terminating the strike action and
made an unconditional offer to return to work on
behalf of the striking operators Approximately 214
busdrivers were working for the Employer as of May
30, 1975 Of this complement, it appears that 131 op-
erators were replacements hired during the strike, 51
operators were former striking employees who re-
turned to work prior to March 12, 1975, and the re-
maining 32 operators were strikers who were reinstat-
ed subsequent to March 12, 1975
Following the Union's offer on behalf of the strik-
ing employees, the Employer sent a letter to all such
individuals, excepting several who had engaged in
strike misconduct,2 requesting that they advise the
Employer of their intention and/or desire to return
to work After receiving affirmative responses from
about 184 former striking operators, it then mailed
offers of reinstatement to 39 individuals, 32 of whom
accepted reemployment, as indicated above
The Regional Director held that those strikers who
declined to respond to the Employer's letter must be
deemed to have found permanent employment else-
where and/or to have abandoned any interest in re-
turning to work for the Employer Thus, starting
from the proposition that only the 184 strikers who
made affirmative responses to the Employer's letter
were interested in reinstatement, he reduced that
number by the 32 who were subsequently reinstated
and by the 131 permanent replacements hired during
the strike, to arrive at the figure of 21 unreplaced
strikers with rights of reinstatement, and he conclud-
ed that those 21 strikers on the list of 184 who had
the greatest seniority would be eligible to vote
The Union contends, first, that the Regional Di-
rector erred in accepting the Employer's canvass of
strikers as determinative of their interest in reinstate-
ment The Union argues that those who did not re-
spond should not have been eliminated from consid-
eration as eligible voters because some may not have
received the Employer's letter by reason of insuffi-
cient address and others, particularly those at the
bottom of the seniority list, may have despaired of
ever being recalled and elected to rely on the Union's
unconditional offer made on their behalf In its brief
on review, the Union asserts that since the hearing
the Employer has reinstated an additional 19 opera-
+ors, another 11 strikers have declined notices, 15
strikers have died or retired, and no more than 100 of
2
According to the Union s brief the Employer concluded that six of the
former strikers were disqualified by reason of alleged strike misconduct and
did not send applications to them
224 NLRB No 192
SAFEWAY TRAILS, INC 1343
the 131 replacements hired during the strike are cur-
rently employed by the Employer It also asserts that
the Employer's traffic volume should increase sub-
stantially in 1976 as a result of the tourism generated
by the bicentennial year celebrations, and that the
reduction in the number of drivers from the prestrike
level was brought about largely by an expansion in
the work week rather than a reduction in operating
schedules The Union urges, therefore, that the
Board defer the issues as to the eligibility of strikers
by permitting all unrecalled strikers to vote subject to
challenge
At the hearing, the Hearing Officer rejected all evi-
dence with respect to the strikers' eligibility, stating
that the issue would be resolved on the basis of chal-
lenged ballots However, thereafter, without taking
into account the Hearing Officer's ruling, the Re-
gional Director proceeded to make a determination
as to which of the unreplaced economic strikers
would be eligible to vote in the election In these
circumstances, we agree with the Union that the
questions raised as to which, if any, of the unreplaced
former strikers may be eligible to vote can best be
resolved through the challenge procedure 3 We shall
therefore make no present determination relative to
the issues raised Rather, in view of the fact that the
parties were precluded from presenting evidence at
the hearing regarding the eligibility of the unreplaced
strikers, we shall permit all strikers who have not
been reinstated prior to the eligibility date to cast
challenged ballots in the election Issues as to their
eligibility, if determinative of the election results,
3 See e g Universal Manufacturing Company 197 NLRB 618 (1972) also
see Milwaukee Independent Meat Packers Association 223 NLRB 922 (1976)
Akron Engraving Company Inc 170 NLRB 232 (1969)
shall be resolved through the Board's postelection
procedures4
In this connection, of the unreplaced strikers who
are deemed not to have abandoned their jobs with
the Employer, we find that the most who may be
found eligible in any event will be the difference be-
tween the number of employees employed before the
strike (306) and the number employed on the eligibil-
ity date 5 If this number, whatever it turns out to be,
is determinative of the election results, the Regional
Director is instructed to resolve the challenges In the
event that this number is not determinative of the
election results, the Regional Director shall so find
and issue the appropriate certification
Accordingly, the case is hereby remanded to the
Regional Director for Region 5 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election, as modified herein, except that
the eligibility date for the election shall be that imme-
diately preceding the date of issuance of this Deci-
sion [Excelsior footnote omitted from publication ]
4 Even assuming the Regional Director was procedurally correct in re
solving the challenges on the basis of the record before him we note that
important questions are raised concerning the substantive rulings For ex
ample he found ineligible those former strikers who failed to respond to the
Employers letter However in view of the Union s offer to return to work
made on behalf of all the strikers there is a question raised as to whether the
letters sent to the strikers by the Employer should serve to disenfranchise
those who failed to indicate their intentions to return Further even if such
letters could be given this effect in some circumstances we observe that the
Employer in this case apparently required individual applications for rein
statement action which the strikers arguably did not need to take to pre
serve their rights to reinstatement See N L R B v Fleetwood Trailer Compa
ny Inc 389 U S 375 (1967) Moreover even under the Regional Directors
view that the strikers who did not respond to the Employer s canvass had
forfeited their rights to reinstatement he erred in reducing the list of 184
responders still further by the total number of 131 striker replacements
inasmuch as the jobs of some of the nonresponding strikers those with
relatively low seniority had very likely been filled by replacements Thus
some replaced strikers may have been deducted twice from the total of those
eligible i e the 131 who were replaced plus those of the nonresponders
who may also have been among the 131 replaced
5 Akron Engraving Company Inc supra