Thiokol Corp.

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1481 (N.L.R.B. 1977)

THIOKOL CORPORATION 1481
Thiokol Corporation - Delta Division and Interna-
tional Union of Electrical , Radio & Machine
Workers, AFL-CIO, Petitioner. Case 1-RC-
13837
April 14, 1977
SUPPLEMENTAL DECISION AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties on May 28,
1975, and approved by the Acting Regional Director
for Region 1 on May 29, 1975, an election by secret
ballot was conducted among certain employees of
the Employer on July 17, 1975, under the direction
and supervision of said Acting Regional Director. At
the conclusion of the election, a tally of ballots was
furnished to the parties which showed that of
approximately 116 eligible voters, 56 voters cast valid
votes for and 56 cast valid votes against the
Petitioner and 1 ballot was challenged. The chal-
lenged ballot is determinative of the results of the
election.
On August 15, 1975, the Acting Regional Director
issued a report on the challenged ballot which
recommended that the challenge to the ballot be
sustained and that a revised tally of ballots and
certification of results be issued.
On April 8, 1976, the Board, with Chairman
Murphy dissenting, issued a Decision and Order
Directing Hearing, 223 NLRB 787 (1976), directing,
inter alia, a hearing for the purpose of receiving
evidence to resolve the issues raised in regard to the
challenged ballot of Paul Fisck, with respect to (1)
whether the Employer intended to and did terminate
Fisck notwithstanding the withdrawal of his offer to
resign, and (2) whether Fisck, on the date of the
election, had a reasonable expectation of recall in the
forseeable future.
Pursuant to a notice of hearing issued on April 23,
1976, a hearing was held in Boston, Massachusetts,
on May 17 and June 2 and 24, 1976, before Hearing
Officer Helaine A. Simmonds, duly designated for
that purpose, at which the Employer, Petitioner, and
counsel for the Regional Office appeared and
participated. All parties were given a full opportunity
to be heard, to examine and cross-examine witness,
and to introduce evidence relating to the issues
involved.
On September 22, 1976, the Hearing Officer issued
a report and recommendations which recommended
that the challenge to the ballot be sustained and that
228 NLRB No. 189
a revised tally of ballots and certification of results
be issued.
The Board has reviewed the record in light of the
exceptions and briefs and hereby adopts the Hearing
Officer's findings and recommendations.'
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Union of
Electrical, Radio & Machine Workers , AFL-CIO,
and that said labor organization is not the exclusive
representative of all the employees , in the unit herein
involved , within the meaning of Section 9 (a) of the
National Labor Relations Act, as amended.
1 The relevant portion of the Heanng Officer's report is attached hereto
as the Appendix.
APPENDIX
Upon the entire record in this matter, from observations
of the witnesses, and after examination of all exhibits,
testimony and arguments' by the Employer and the
Petitioner , I issue the instant Report.
FINDINGS OF FACT
Paul Fisck worked for the Employer as a Lathe Operator
C. At the time of his separation from employment, Fisck
worked on the second shift,2 reporting directly to Charles
Marquardt, Foreman. In the beginning of June 1975,3
Fisck had been denied a raise and a promotion, both of
which he felt he was entitled to.
The event that culminated in the issue that we are now
embroiled in, was Marquardt informing Fisck, on either
June 17 or 18,4 that a job on the third shift that he
requested had been given to another employee. Fisck then
told Marquardt that he was giving his notice and that July
7 would be his last day.5 A short time later, on the same
day Marquardt reported to Fred Chaney, General Fore-
man, that Fisck would be leaving July 7. Chaney told
Marquardt to doublecheck with Fisck to make sure that
was what he wanted. According to Chaney, Marquardt6
checked again with Fisck and reported back to Chaney,
that Fisck was definitely leaving. This all occurred during
the first hour or so of the shift. At some time during the
shift, Chaney told Marquardt that he would hold up
processing Fisck's papers for a couple of days. On June 19,
toward the beginning of the shift, Chaney, himself, asked
Fisck if he was sure that was what he wanted and Fisck
told him that he wanted out of the outfit, he had a better
job and was definitely leaving. Chaney told Fisck that he
1 At the request of the Heanng Officer, briefs were filed by both the
Employer and the Petitioner.
2 Fisck had been required to transfer to the second shift or take an
automatic quit.
3 All dates hereafter refer to 1975 unless otherwise indicated.
4 Although Fisck testified that the incident occurred on the 18th, the
Company's records indicate that the date was the 17th.
5 According to Fisck, he selected July 7, a Monday, in order to receive
pay for the July 4 holiday.
6 Marquardt did not testify.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would hold up the papers a couple of days. Sometime that
night, Fisck injured himself on the job and did not work
after the 19th. That night, Chaney filled out the payroll
change forms on Fisck and turned them in to Ronald
Walsh, Manager of Manufacturing. The forms indicated
that Fisck had resigned for another position. The foregoing
facts are based mainly on the testimony of Chaney, whom I
credit over Fisck where their testimony was a variance.
Although Chaney's testimony was confusing in parts, I find
that the minor deficiencies in his testimony, relating to
minor matters,7 are outweighed by his admission that he
had in fact told both Marquardt and Fisck that he would
hold up processing, for a couple of days, the papers relating
to Fisck's resignation and by his readiness in admitting
that he had made a mistake at one time during his
testimony. But even more significant, I find that I am
unable to credit Fisck in those aspects of his testimony that
differ from Chaney for the following reasons. To begin
with, Fisck first testified that in response to Chaney's
asking him to think about his resignation, he told him he
would let him know definitely within a week. When asked
again about the conversation, Fisck twice testified that
Chaney only asked him if he were sure he was doing the
right thing, to which he (Fisck) responded that he wasn't
sure and would like to think about it, thereby not only
changing the nature of Chaney's inquiry, but also initially
omitting both times any mention of letting Chaney know
definitely within a week whether he would be resigning or
not, a fact that Chaney emphatically denied. Furthermore,
although Fisck denied that he had told Chaney or any
other Company official that he had another job, it is
undisputed that the initial unemployment notice form he
received which was dated July 7, before any of this was in
issue, indicated that he had resigned for another position .8
Additionally, contrary to his testimony at the hearing that
although he had applied for another job, he knew before he
gave his notice that he was not going to get anotherjob that
he had applied for, Fisck's affidavit given to the Board
Agent during the investigation seems to indicate that he
did not find this out until after he gave his notice,
notwithstanding his attempted explanation for the appar-
ent inconsistency. In any event, at its best, Fisck's version
of his conversation with Chaney only would indicate, if it
were credited, and I do not do so, that Fisck would let
Chaney know within a week or less, whether he had
changed his mind about resigning and, as indicated below,
there is no indication in the record that this occurred.
Finally, in regard to Fisck's credibility, he testified that his
alleged initial inclination to reconsider his resignation a
day or two after having given his resignation resulted from
a request by Al Cummings, a Union representative, to
change his mind and to see if he could get his resignation
revoked. Although Cummings was present on all three days
of the hearing, a fact of which I take judicial notice, he was
7 For example, at what time during the evening he told Marquardt that
he would hold up for a couple of days the papers relating to Fisck's
resignation
8 At Fisck's request, a second unemployment notice form was made out
indicating that he has resigned-unable to work the second shift
9 Significantly, Chappuis who was available to the Petitioner through the
use of a subpena, was not called to substantiate Fisck's story In any event
there is no evidence on the record that would establish Chappuis as an agent
not called upon to corroborate Fisck in this respect. Nor,
admittedly, did Fisck directly seek out Marquardt or
Chaney on June 19th or at any time prior to his July 10
conversation with Chaney to tell them he had definitely
changed his mind and intended to stay. According to
Fisck, on Monday, June 23, be brought in a disability slip
to Bonnie Chappuis, a clerical employee who works in the
office, and who is not Chaney's secretary, handling, inter
alia, insurance matters and asked her to tell Chaney not to
fill out his notice and that he would be coming back to
work. Chaney credibly denied receiving such message from
Fisck, directly or indirectly through Chappuis, and I do not
credit Fisck's testimony in this regard, for not only does it
seem highly improbable to me that Fisck, who admittedly
did not unequivocably tell Chaney that he had changed his
mind about resigning, would be content to have his future
employment hinge on a message to Chaney to be
transmitted through an employee with no official capacity
and no reporting responsibility to Chaney. Furthermore,
Fisck's admitted failure, upon receiving notice of his
termination, to inquire of Chaney as to whether he had
received his message when he spoke to him about it on July
11, as will be shown below, further detracts from the
likelihood of his story.9
Company records carry the notation that Fisck resigned
as of July 7 to accept another position and further indicate
that Fisck's insurance was terminated as of July 7.10 These
facts in particular distinguish the instant case from that of
John A. Thomas Crane and Trucking Company, Inc., 224
NLRB 214 (1976), where the Board overruled the challenge
to the ballot of an employee where there was not a clear
opinion in anyone's mind that the employee had quit.
On July 7 or 8,11 Fisck called the Company and told
Chappuis that he would be returning to work on July 14.
The message came to the attention of Thomas O'Reilly,
Director of Employee Relations, resulting in a letter dated
July 10 being sent to Fisck by James Ziegler, Supervisor,
Accounting and Personnel, stating:
Your telephone call of July 8, 1975 wherein you advised
that you intended to return to work on July 14, 1975
has been brought to my attention. Our records show
that you gave notice to your supervisor Mr. Marquardt
on June 17th, to be effective on July 7th, 1975. The
reason you gave was that you were leaving for another
job.
In view of your voluntary termination, you are not to
report for work on July 14, 1975.
O'Reilly testified that the letter was sent because the
Company had adopted a policy at this time, because of a
decline in business, of not allowing individuals to revoke
resignations once they had been given and although he was
not actually corroborated in this respect by General
of the Employer with the authority, either real or apparent, to accept
revocations of resignations such as to nullify the resignation.
10 In fact, Fisck himself testified that on the back of the letter he received
from the Company, he was notified that his insurance had been terminated
and if he wanted insurance to contact the agent
11 Fisck testified that he called on July 7, whereas the letter the Company
sent to him indicates that the call was made on July 8
THIOKOL CORPORATION 1483
Manager Ralph Haetgher who merely testified that the
Company at this time had a policy, at least at the top of
management,12 of not encouraging individuals to reconsid-
er their resignations, in view of my finding that Fisck had
effectively resigned, I find it unnecessary to resolve what
were the Company's motivations in taking the action it
did.13
Upon receipt of the letter on July 11, Fisck called
Chaney and asked for his job back. Chaney told him that
he didn't have the authority to give him his job back and
that Fisck would have to talk to Walsh. On Monday, July
14, Fisck went in to see Walsh to ask for his job back.
According to Fisck, Walsh told him that his resignation
would not be revoked because the papers had already gone
through but that he would rehire him as soon as they let
him start hiring again. It was at this time that Walsh agreed
to change the unemployment notice form as indicated
above.
Finally, Fisck's name, which had been included on a list
given to O'Reilly on June 25, of employees whose names
appeared on the Excelsior list and who had been or would
be terminated by the day of the election, was scratched
from the Excelsior list at the preelection conference.
The above sequence of events indicates to me that Paul
Fisck was effectively terminated from employment on July
7 by the Company's putting into effect his resignation that
had been tendered on June 17 or 18. Furthermore, the July
10 letter to Fisck was only to inform him of his already
effectuated resignation and was not a result of either any
mistaken intention on the part of the Company or of any
mistake arising from a breakdown in intra-Company
communications.
Although this conclusion is contrary to the Board's
statement that "it is clear beyond question from the Acting
Regional Director's report that Fisck's oral resignation of
June 18, 1975, to become effective July 7, had been
withdrawn upon the suggestion of the Employer's general
foreman, before July 11 when the Employer purported to
accept his voluntary resignation," I respectfully submit that
the Acting Regional Director's Report only assumed,
without deciding, the facts adopted by the Board in the
aforementioned quotation.
Inasmuch as Fisck's voluntary resignation effectuated on
July 7 served to permanently terminate his employment,
the question of whether he had a reasonable expectation of
recall in the future need not be reached. Indeed, Fisck
himself testified that he had no recall rights and the record
shows that he filled out a new application for reemploy-
ment with the Company in January of 1976, both tending
to substantiate the conclusion reached above that Fisck's
status on the day of the election was that of a voluntarily
resigned employee, permanently terminated from employ-
ment, rather than that of either a permanently or
temporarily laid off employee.
CONCLUSION AND RECOMMENDATION
For the reasons stated above, I conclude that Paul Fisck
was not an employee of the Employer on the day of the
election and was therefore not eligible to vote. Plymouth
Towing Company, Inc., 178 NLRB 651 [1969]. Accordingly,
I recommend that the challenge to his ballot be sustained
and that a Revised Tally of Ballots and Certification of
Results issue.
12 Employee Emerson Saunders credibly testified, uncontradicted by
Chaney, that in March he was given an opportunity by Chaney, which he
took advantage of, to reconsider an earlier announced resignation
13 Although in its Request for Review of the Acting Regional Director's
Report, which was submitted as part of its brief to me, the Petitioner raised
the specter of antiunion motivation, Petitioner's Attorney expressly
disavowed at the hearing any such position Moreover, no 8(a)(3) charge
was ever filed on the matter.