W. Wilton Wood, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1960

127 N.L.R.B. 1675 (N.L.R.B. 1960)

W. WILTON WOOD, INC. 1675
the Regional Director relied, fully set forth in his report, the
Employer contends in its exceptions that he erroneously concluded
that they were eligible voters. We agree with the Regional Director
that Rosen, despite the fact that he was receiving social security
retirement benefits, was an unreplaced striker on the eligibility and
election dates who planned to return to work for the Employer after
the strike. We also believe that the record supports the Regional
Director's findings that Sickler, Christy, Roberts, and Bailey were
only temporarily employed elsewhere and were unreplaced strikers on
the eligibility and election dates who intended to return to their pre-
strike employment. Accordingly, we find that these five strikers are
eligible voters and hereby overrule the challenges to their ballots.'
No exceptions having been filed to his recommendations that the re-
maining four challenges be overruled, such recommendations are
adopted pro forma.
Accordingly, as we have overruled the challenges as well as the
objections, we shall direct that the challenged ballots be opened and
counted.
[The Board directed that the Regional Director for the Second
Region shall, within 10 days from the date of this Direction, open and
count the ballots of F. Alvarez, M. Marmora, E. Birdsell, S. Surdel,
F. Rosen, R. Christy, C. Sickler, W. Bailey, and R. Roberts; and serve
upon the parties a revised tally of ballots, including therein the count
of the above ballots.]
3 See W. Wilton Wood, Inc., 127 NLRB 1675.
W. Wilton Wood, .Inc. and Local 1205, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case No. 2RC 10058. June 30, 1960
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board September 18, 1959, as amended, December 9, 1959,1 an election
by secret ballot was conducted on January 7, 1960, under the direction
and supervision of the Regional Director for the Second Region,
among the employees in the appropriate unit. Following the election,
the parties were furnished with a tally of ballots which shows that of
18 ballots cast, 1 was against the Petitioner and the other 17 were chal-
lenged. Thereafter the Employer filed timely objections to the con-
duct of the election. However, the objections were subsequently with-
drawn with the approval of the Regional Director.
I Unpublished.
127 NLRB No. 185.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director investigated the challenges and on January
28, 1960, issued his report on objections and challenges, in which he
made findings with respect to the 17 challenged ballots, but as they
involved alleged economic strikers and replacements he made no rec-
ommendations as to their disposition. The Employer filed timely
exceptions to the report, and at the request of the Board, both parties
thereafter filed statements and briefs with respect to the issue of the
eligibility of replaced economic strikers and replacements to vote in
the election.
The Board has considered the Regional Director's report on objec-
tions and challenges, the exceptions thereto, and the statements and
briefs of the parties, and upon the entire record in this case, makes
the following findings :
The instant case involves the eligibility of 11 persons alleged to be
economic strikers and 6 alleged permanent replacements. As hereto-
fore found by the Board, the Petitioner called a strike at the Em-
ployer's Huntington and Syosset, Long Island, locations on March
12 and 14, 1959, respectively. The Employer subsequently discon-
tinued its operations at Syosset and that location was not included in
the unit herein. The strike admittedly was for economic objectives
and was in progress at the time of the election, which was held within
12 months from the onset of the strike.
Replaced Economic Strikers
The Employer contends that the eligibility of strikers herein is
controlled by the applicable provision in Section 9(c) (3) of the Act
in effect on September 17, 1959, the eligibility date established by the
Board for the election.' We disagree. On September 14, 1959,
Public Law 86-257, 86th Congress , cited as the "Labor-Management
Reporting and Disclosure Act of 1959," was enacted . This Act, inter
alia, amended Section 9 (c) (3) by substituting a new specific provision,
quoted below, dealing with eligibility of economic strikers. The new
provision went into effect November 13, 1959 . We think it is clear,
as the election herein was held on January 7, 1960, that the new pro-
vision in Section 9 ( c) (3) governs the eligibility of the alleged
economic strikers to vote in the election.3
The new provision in Section 9 (c) (3) reads as follows:
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 and provi-
2 The provision then in effect read : "Employees on strike who are not entitled to re-
instatement shall not be eligible to vote."
3 See Whaley Coal Company, 124 NLRB 1113 ; Member Rodgers , who dissented therein,
deems himself bound by the majority decision.
W. WILTON WOOD, INC. 1677
sions of this Act in any election conducted within twelve months
after the commencement of the strike.
It is clear from the language of the statute, and we hold, that this
provision eliminates the voting disability of replaced economic strik-
ers which existed under the Taft-Hartley Act and gives them eligi-
bility to vote, subject to Board regulation, in any election conducted
within the first 12 months of the strike. The Board has decided to
implement the statutory directive to regulate the voting eligibility of
economic strikers by the adjudicative process rather than to attempt
at this time to formulate general rules and regulations on the subject.
However, we may state generally, to paraphrase what the Board said
about unreplaced economic strikers in Union Manufacturing Com-
pany, 101 NLRB 1028, that economic strikers retain their status as
such, absent some affirmative action (other than their replacement)
which brings it to an end. Although it is a question to be determined
on the basis of the facts and circumstances of each case, generally, an
economic striker forfeits such status, for voting purposes, where prior
to the election he obtains permanent employment elsewhere; 4 or the
employer eliminates his job for economic reasons,5 or discharges, or
refuses to reinstate him for misconduct rendering him unsuitable for
reemployment .6
We turn now to a consideration of the eligibility status of the 11
alleged economic strikers involved herein :
Pepe, De Viso, and Vande Griek: The Employer contends that
Daniel Pepe, Jacob Vande Griek, and Joseph De Riso were employed
as drivers at its Syosset location and were ineligible because the
Syosset location was excluded from the unit. We do not agree.
These three persons, who have picketed the Employer since March 14,
1959, were sent a letter by the Employer on April 3, 1959, stating :
"As you know we have permanently closed our Syosset yard. We
have transferred our Syosset business to Huntington, and we are
changing our payroll records to show your transfer to Huntington."
In these circumstances, we find that, as of April 3, 1959, these three
individuals were strikers within the unit.
After the strike began, Pepe worked part time for the post office,
a job he had held for the previous 5 years. Around September 1959,
De Riso obtained a job in the shipping department at Gruman Engi-
neering Corp., Bethpage, Long Island. Vande Griek did not obtain
any other employment. Although De Riso was free to remain with
Gruman or return to the Employer after the strike, he, like Pepe and
' Horton's Laundry, Inc., 72 NLRB 1129, 1135-113T; Remington Rand Inc ., 74 NLRB
447, 451
Meridian Plastics , Inc, 108 NLRB 203, 205 ; P . J. Kelley Company , 98 NLRB 486, 488.
Union Manufacturing Company, 101 NLRB 1028 ; and cases cited therein.
1678 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Vande Griek, continued to picket. We find that the other employ-
ment of Pepe and De Riso was temporary, and that on the election date
both intended to return to the Employer after the strike. Pepe,
De Riso, and Vande Griek were therefore economic strikers eligible
to vote in the election and the challenges to their ballots are hereby
overruled.
Dyke : The Employer contends that Douglas Dyke was ineligible to
vote because he was discharged before the strike. The day before the
strike began, Dyke was discharged for alleged misconduct. He par-
ticipated in the strike with other employees and on March 24, 1959,
filed charges alleging that his discharge was in violation of Section
8(a)(3). On March 30,1959, the Employer wrote to Dyke as follows :
"Without condoning the reasons ascribed for your discharge, we
hereby offer you unconditional reinstatement to your former position,
without prejudice to any seniority or other rights and privileges pre-
viously enjoyed." Dyke did not respond to this offer but continued to
picket. The charge was withdrawn on May 15, 1959. In view of the
pendency of the strike, Dyke's continued participation therein, and
the Employer's unconditional offer of reinstatement, we find that
Dyke's status was that of an economic striker. There is no indication
in the report that Dyke was employed elsewhere during the strike.
He was therefore an economic striker eligible to vote and the challenge
to his ballot is hereby overruled.
Vikowsky: The Employer contends that Peter Vikowsky was in-
eligible to vote on the grounds that (1) he was a temporary employee,
and (2) he voluntarily quit prior to the eligibility date. Prior to the
strike, Vikowsky, who had been employed by the Employer for 12
years, was performing shipping duties at the Huntington location.
Later, after the Syosset operations ceased, the Employer transferred
Kaiser, who had been in charge of shipping at the Syosset yard, to
shipping duties at Huntington and reassigned Vikowsky to yardman
duties. At the time, the Employer told Vikowsky that the assign-
ment would be "for a while." Subsequently, on or about April 18,
1959, and during the strike, Vikowsky said to the plant manager, "I
can't take it any longer" and went outside and joined the picketing
strikers. In these circumstances, we find that Vikowsky ceased work
as a result of a labor dispute and did not thereby intend to abandon
his employment relationship with the Employer. In the original de-
cision herein, the Board found that Kaiser, who replaced Vikowsky,
was a supervisor at the Huntington yard, primarily on the ground
that he had effectively recommended hiring, but made no finding with
respect to Vikowsky's status at the time he had filled the job. How-
ever, the original record shows that Vikowsky's duties as shipper,
unlike Kaiser's, were limited to routine direction of the drivers, with-
W. WILTON WOOD, INC. 1679
out any other supervisory indicia. Therefore, even if Vikowsky's
assignment to yardman's duties be considered temporary and he was
expected to return to shipping duties, as alleged by the Employer, he
would be within the unit. In any event, we are satisfied from the
record as a whole, especially in the absence of any showing that Kaiser
was told his replacement of Vikowsky was only temporary, that the
latter's assignment to yard work was permanent.
The Regional Director found that Vikowsky stopped picketing in
June when he started to work as a painter for a contractor on a "when
needed" basis. We find that this other employment was temporary.
Accordingly, Vikowsky was eligible to vote as an economic striker and
the challenge to his ballot is hereby overruled.
Young : The Employer contends that Augustus Young was in-
eligible on the grounds that (1) he abandoned his employment, and
(2) his job was discontinued. Before joining the strike Young was a
driver, making almost all of the Employer's coal deliveries. However,
it appears that Young also spent a substantial part of his time driving
the lumber truck. In July 1959, during the strike, the Employer sold
its coal business. Young worked steadily from late June 1959 for the
highway department of the town of Huntington at a pay rate of $2
per hour. However, both this latter employer and Young considered
this a temporary job. Upon the foregoing, we find that Young's other
employment was temporary. We also find that, as a substantial part
of Young's job remained after the sale of the coal business, and there
is no evidence that this part was eliminated, his job was not wholly
discontinued. We conclude that Young's interest in the unit was
sufficient to enable him to retain his status as an economic striker and
that he was therefore eligible to vote. Accordingly, the challenge to
his ballot is hereby overruled.
Malone, Jos, and Massalone : The Employer contended that James
Malone, Joseph Jos, and Archer Massalone were ineligible because
they abandoned their jobs. Malone, a driver for the Employer before
he joined the strike, was employed as a driver for Huntington Ma-
terials Co. beginning April 4, 1959. Sometime after he was hired,
he told Huntington Materials he would return to the Employer after
the strike and that he considered his job temporary. His supervisor
at Huntington Materials stated that Malone was expected to return
to the Employer after the strike and that he was hired on a "when
needed" basis. Malone continued to picket on Saturdays. Jos, a
driver for the Employer before he joined the strike, had part-time
jobs as a policeman during 1959 and around December he obtained a
job as a helper at Schlaugies Fuel Company. Both Jos and Schlaugies
agree that this job was temporary. Massalone, a yardman for the
Employer before he joined the strike, worked for Nassau-Suffolk
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber Company from around May 1959. Both Massalone and
Nassau-Suffolk agree that this job was temporary. Upon the fore-
going, we find that Malone, Jos, and Massalone were only temporarily
employed elsewhere. In the circumstances, we conclude that they
did not abandon their prestrike jobs and that they were economic strik-
ers eligible to vote in the election. Accordingly, the challenges to their
ballots are hereby overruled.
Long and Verity: Charles Long and George Verity joined the strike.
Neither was employed elsewhere. We find that both were economic
strikers eligible to vote and the challenges to their ballots are hereby
overruled.
Replacements
The Petitioner contends that during the first 12 months of an
economic strike only economic strikers may vote and that, under the
amended Act, permanent replacements are ineligible. It argues that
Congress, by repealing a provision under which an economic striker
could vote only if he were not replaced, and substituting therefor a
provision granting eligibility to all economic strikers for a limited
period, indicated its intent to disfranchise replacements during such
period. The argument is without merit. There was never any spe-
cific reference in the Act to the voting eligibility of replacements for
economic strikers. Prior to the Taft-Hartley amendments, replace-
ments were permitted to vote under the Board's W2crlitzer policy?
They were also found to be eligible under the Taft-Hartley amend-
ments. It cannot reasonably be inferred, therefore, that Congress
intended, as an incident to the new provision granting limited eli-
gibility to economic strikers, to disfranchise replacements. Any
doubt on this 'score is removed by the legislative history of the current
provision. In the discussion of the proposed amendment to Section
9(c) (3) of the Act in S. 1555 on the floor of the Senate, Senator
Javits, one of the bill's sponsors, stated that the proposed amendment
"allows both the economic striker and the one who has filled his job
to vote." 8 We shall, therefore, permit permanent replacements for
economic strikers to vote in Board elections.
We turn then to a consideration of the challenges involving alleged
replacements :
Devine, Stamps, Smnith, and Goodale: The Petitioner contends that
George Devine, George Stamps, Edward Smith, and Sam Goodale
were not replacements for strikers. However, each of these persons,
when hired for work in the unit, was told by the Employer that his
employment would be permanent. The Petitioner asserts that because
7 The Rudolph Wurlitzer Company , 32 NLRB 163 , see also Columbia Pictures Corpora-
tion, et al, 64 NLRB 490, 519
8 Cong. Ree, Senate, April 21, 1959 (p. 5732)
W. WILTON WOOD, INC. 1681
Smith was 60 years old, he could not perform all the driver duties
which were performed by the striker he allegedly replaced . However,
such fact alone would not establish that Smith was hired as a tem-
porary replacement ? We find that Devine , Stamps, Smith, and
Goodale were permanent replacements for strikers . As they were
employed on the eligibility and election dates, they were eligible to
vote. Accordingly , the challenges to their ballots are hereby
overruled.
Deval : The Petitioner contends that Arthur Deval was not a per-
manent replacement because it would not be reasonable to infer that
the Employer would hire Deval, an 82-year-old man , during the strike,
on a permanent basis. Deval had worked for the Employer in the
past and retired while on sick leave. There is no evidence that he
was told he was being rehired on a permanent basis. In view of such
fact and his advanced years, we are unable to conclude that Deval
was a permanent replacement . He was therefore ineligible to vote and
the challenge to his ballot is hereby sustained.
Kohm: The Petitioner contends that Thomas Kohm was ineligible
to vote because , whether or not he was a permanent replacement, he
was employed on a part-time basis on the eligibility date and there-
fore outside the unit . The report indicates that Kohm was employed
as a regular part-time driver. The unit was described as "all regular
drivers and yardmen" in the Board 's Decision and Direction of Elec-
tion, and regular part -time employees were not specifically excluded.
The record shows that the parties were in dispute as to the unit
placement of regular part -time employees . Under our policy, such
employees whose placement is disputed are included in the unit. We
find, therefore , contrary to the Petitioner , that Kohm was within the
unit. As it appears that he was hired as a permanent employee, we
find that he was eligible to vote and the challenge to his ballot is
hereby overruled.
Accordingly, as we have overruled the challenges to the ballots of
11 replaced strikers and 5 replacements , we shall direct that their
ballots be opened and counted.
[The Board directed that the Regional Director for the Second
Region shall , within 10 days from the date of this Direction, open
and count the ballots of Daniel Pepe , Jacob Vande Griek , Joseph
De Riso, Douglas Dyke, Peter Vikowsky, Augustus Young, James
Malone, Joseph Jos, Archer Massalone, Charles Long, George Verity,
George Devine, George Stamps, Edward Smith , Sam Goodale, and
Thomas Kohm; and serve upon the parties a revised tally of ballots,
including therein the count of the above ballots.]
0 See Colurnbra Pictures Corporation, supra, at 515-519.