Tractor Supply Co.

National Labor Relations Board - Board Decisions

Mar 20, 1978

235 N.L.R.B. 269 (N.L.R.B. 1978)

TRACTOR SUPPLY CO.
Tractor Supply Co. and Robert A. Rinker, Thomas M.
Ropa, Patricia A. Richardson and Gayle M.
Marshall, Petitioners, and Retail Clerks Union
Local No. 10, Chartered by Retail Clerks Interna-
tional Association, AFLCIO. Case 25-RD-530
March 20, 1978
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an
election held August 19, 1977,1 challenged ballots
voted in said election, and the Regional Director's
report recommending disposition of same. The
Board has reviewed the record in light of the
exceptions and brief and hereby adopts the Regional
Director's findings and recommendations.
The Employer in its exceptions to the Regional
Director's "Report on Objections to Conduct Affect-
ing Results of Election and Challenged Ballots,
Recommendations to the Board, and Order Direct-
ing Hearing," maintained, in part, that challenged
voters Bojrab, Gibson, and Holley were ineligible to
vote since they were former economic strikers who,
although they had made unconditional offers to
return to work, had not been reinstated at the time of
the election. In support thereof it cited The Martin
Bros. Container & Timber Products Corp., 127 NLRB
1086 (1960) (and several other cases2 which cited
Martin Bros.), for the proposition that former eco-
nomic strikers who have been replaced are not
employees entitled to vote in an election subsequent
to the strike even though the election is within 12
months3 of the commencement of the strike.
We note, however, that Martin Brothers was modi-
fied in L.E.M., Inc., d/h/a Southwest Engraving Co.
and Towell Printing Co., 198 NLRB 694 (1972),4
where the Board, in pertinent part, adopted the Trial
Examiner's finding that replaced former economic
strikers were eligible to vote in an election conducted
within a 12-month period following commencement
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was seven for, and nine against, the
Petitioner. There were four challenged ballots.
2 Wagner Electric Corp., 127 NLRB 1082 (1960): Canton Sterilized
Wiping Cloth Company, 127 NLRB 1083 (1960).
3 See Sec.
9(cX3) of the Act which provides:
(3) No election shall be directed in any bargaining unit or any
subdivision within which, in the preceding twelve-month period, a valid
election shall have been held. Employees engaged in an economic strike
who are not entitled to reinstatement shall be eligible to vote under
such regulations as the Board shall find are consistent with the purposes
235 NLRB No. 53
of the strike. The Trial Examiner discussed Section
9(c)(3) of the Act as well as several post Martin
decisions 5 and concluded after extensive discussion
(198 NLRB at 705):
Accordingly, I find on the basis of Pioneer Flour
Mills and Laidlaw and the Supreme Court's
holding in Fleetwood Trailer that the Martin
Brothers case has been modified to the extent that
the bargaining unit consists of economic strikers,
whether on strike or not, as well as strike
replacements and nonstrikers. I further find that
it is of no consequence that the strike had
terminated so long as the election was conducted
within a 12-month period following the com-
mencement of the strike.
As stated, the Board agreed with the Trial Examiner
for the reasons given by him.
The Employer further urges, however, that South-
west Engraving, supra, has itself been at least implied-
ly modified by the Board's decision in Eck Miller
Transportation Corporation, 211 NLRB 251 (1974).
The relevant issue in Eck Miller, however, was
whether certain truckdrivers whose votes had been
challenged in an election had been economic strikers
and, if so, whether there had been affirmative action
prior to the election, such as termination for valid
economic reasons, which would have brought their
economic striker status to an end. A hearing was
directed for the purpose of determining these issues.
In reaching this result, the Board stated, in dictum,
that Laidlaw was inapplicable to the Eck Miller facts
since Laidlaw arose in an unfair labor practice
context and was concerned with the entitlement of
economic strikers to jobs when they become avail-
able rather than with the voting eligibility of econom-
ic strikers which was governed by Section 9(c)(3) of
the Act.
It is obvious, however, that the issue in Eck Miller
is clearly distinguishable from the issue herein of
whether former economic strikers who have uncondi-
tionally offered to return to work are entitled to vote
in an election within 12 months from the commence-
ment of the strike. The Board thus in Eck Miller did
not intend to modify the holding of Southwest
Engraving that such employees are indeed eligible
and provisions of this Act in any election conducted within twelve
months after the commencement of the strike. In any election where
none of the choices on the ballot receives a majority, a run-off shall be
conducted, the ballot providing for a selection between the two choices
receiving the largest and second largest number of valid votes cast in
the election.
4 Chairman Fanning and Member Jenkins note that their dissent in
Southwest Engraving was not related to the instant issue.
5 C H. Guenther & Son, Inc., d/b/a Pioneer Flour Mills, 174 NLRB 1202
(1969), enfd. 427 F.2d 983 (C.A. 5, 1970); N. LR.B v. Fleetwood Trailer Co.,
Inc., 389 U.S. 375 ( 1967); The Laidlaw Corporation. 171 NLRB 1366 (1968).
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voters. Therefore, to the extent that the Employer
contends that the holding in Southwest Engraving,
supra, has been modified by the dictum of Eck
Miller, supra, we disagree and we reaffirm the
holding of Southwest Engraving and find that the
former economic strikers herein who had uncondi-
tionally applied for reinstatement were entitled to
vote in the election held on August 19, 1977. We shall
therefore direct that the ballots of the three remain-
ing challenged voters be opened and counted.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Region-
al Director for Region 25 shall, within 10 days from
the date of this Decision open and count the
challenged ballots of Charles Bojrab, Alice Gibson,
and Patricia Holley, and shall thereafter prepare and
cause to be served on the parties a revised tally of
ballots, including therein the count of said ballots.6 If
the revised tally shows that the Union has received a
majority of the valid ballots cast, the Regional
Director shall issue the appropriate certification.
Should the revised tally of ballots show that the
Union has not received a majority of the valid ballots
cast, the following Order shall become applicable.
6 The parties are in agreement that Theresa Rivir, also challenged at the
election, was not an eligible voter.
ORDER
It is hereby ordered that a hearing be held before a
Hearing Officer to be designated by the Regional
Director for Region 25, for the purpose of receiving
evidence to determine the issues raised by the
Union's Objection l(c) and in that portion of the
Regional Director's report entitled "Additional Al-
leged Objectionable Conduct," and that said Region-
al Director be, and he hereby is, authorized to issue
notice thereof.
IT IS FURTHER ORDERED that the Hearing Officer
designated for the purpose of conducting the hearing
shall prepare and cause to be served on the parties a
report containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board as to the disposition of said issues. Within
10 days from the date of issuance of such report
either party may file with the Board in Washington,
D.C., eight copies of exceptions thereto. Immediately
upon the filing of such exceptions, the party filing the
same shall serve a copy on the other party, and shall
file a copy with the Regional Director. If no
exceptions are filed thereto, the Board will adopt the
recommendations of the Hearing Officer.
270