T. E. Mercer Trucking Co.

National Labor Relations Board - Board Decisions

Aug 17, 1962

138 N.L.R.B. 192 (N.L.R.B. 1962)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T. E. Mercer Trucking Co. and Oil , Chemical & Atomic Work-
ers International Union , AFL-CIO, Petitioner. Case No.
23-RC-1735. August 17, 1962
SUPPLEMENTAL DECISION, DIRECTION, AND ORDER
On August 21, 1961, the Board issued the Decision and Direction of
Election herein,' finding that certain classifications of employees of
the Employer, Mercer, constituted an appropriate collective-
bargaining unit; and directing an election among such employees,
including those employees who, although engaged in a strike against
Mercer, retained their employee status during the eligibility period.
The election was duly held on September 15, 1961, but was incon-
clusive because of the number of challenged ballots.
On December 11, 1961, the Regional Director for the Twenty-third
Region issued his supplemental report on challenged ballots, finding
that the election resulted in 24 votes for and 39 against the Petitioner,
with 29 ballots being challenged. He recommended that the Board
overrule 19 of the 29 challenges and sustain the remaining 10.
Exceptions were filed by the Employer and the Petitioner with re-
spect to the Regional Director's disposition of 27 of the challenges.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a 3-member
panel [Chairman McCulloch and Members Leedom and Fanning.
The principal issue in this case is the Regional Director's disposition
of the challenged ballots of the 25 strikers. He found that the strike
had commenced less than 12 months before the election date, and that
the strikers continued to participate in the strike and the accompany-
ing picketing although many of them had obtained other employment.
But he concluded that seven of the strikers were not eligible to vote
because their other employment was substantially equivalent to the
jobs they had at Mercer and they did not advise their new employer
that they intended to return to Mercer at the end of the strike. On the
other hand, he found that the remaining 18 were eligible to vote be-
cause- their other employment was not substantially equivalent to the
jobs they had at Mercer, or they had received no other employment at
all.
The criteria for determination of a striker's eligibility to vote have
been reexamined in the recent decision in Pacific Tile and Porcelain
Co.' In that case we held that a striker will be presumed to retain his
1 Not reported in published volumes of the Board 's Decisions and Orders
2 No issue was raised to the rulings that McLish was and Alford was not eligible to vote,
and these rulings are accordingly adopted
1137 NLRB 1358
138 NLRB No. 22
T. E. MERCER TRUCKING CO. 193
voting eligibility notwithstanding his acceptance of new employment
unless the party challenging his vote affirmatively shows by objective
evidence that the striker has abandoned his struck job.
No such affirmative showing was made in this case. Accordingly, we
shall direct that all 25 of these challenged ballots be counted 4 and
also that the challenged ballot of McLish but not that of Alford, be
opened and counted.
There remain for consideration two further challenged ballots, cast
by alleged supervisor, Seeliger, and alleged guard, Bishop. The Em-
ployer's exceptions raise substantial and material issues 'of fact with
respect to these two voters. Accordingly, if the ballots directed to be
counted herein result in an inconclusive election in view of these two
remaining challenges, further proceedings will be held as hereinafter
directed to resolve such issues.
[The Board directed that the Regional Director for the Twenty-third
Region shall, on September 4, 1962, open and count all the challenged
ballots except those of Hugh Alford, Dave Bishop, and Richard
Seeliger, and thereafter serve upon the parties a revised tally of bal-
lots, including the count of the challenged ballots; should the results
of the election be conclusive, he will issue an appropriate certification.
[The Board ordered that if the abovementioned challenged ballots
do not result in a conclusive election in view of the remaining chal-
lenges to the ballots of Dave Bishop and Richard Seeliger, the Re-
gional Director provide for a hearing before a hearing officer to be
designated by the Regional Director for the purpose of determining
the eligibility of Dave Bishop and Richard Seeliger to vote in the
election.
[The Board further ordered that if a hearing is held the hearing
officer designated for the purpose of conducting the hearing serve upon
the parties a report containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to the Board as to the
disposition of said challenges. Within the period provided for in the
Board's Rules and Regulations, any party may file with the Board
in Washington, D.C., an original and six copies of exceptions. Im-
mediately upon the filing of such exceptions the party filing shall serve
a copy upon each of the other parties and shall also file a copy with
the Regional Director. If no exceptions are filed, the Board will
adopt the hearing officer's recommendations.]
' We had no merit in the Employer ' s argument that the picketing was for the sole
paipose of establishing voting eligibility and was abandoned immediately after the elec-
tion. As noted , the Pacific Tile presumption is dispositive of this case. Moreover, the
crucial factor relevant here is the status of the voter prior to the election, not thereafter.