Rowe-Jordan Furniture Corp.

In the Matter of ROWE-JORDAN FURNITURE CORPORATION , EMPLOYER and UPHOLSTERERS INTERNATIONAL UNION OF N. A.-A. F. OF L., PETITIONER Case No. 5-R-2945 SUPPLEMENTAL DECISION AND ORDER January 17, 1919 On November 6, 1947, pursuant to a Decision and Direction of Election issued by the Board on August 20, 1947,1 and pursuant to two Orders issued, respectively, on August 27, 1947, and on October 20, 1947, which amended the Direction of Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fifth Region. Upon the conclusion of the election, a Tally of Ballots was furnished the parties. The Tally shows that 88 ballots were cast in the election, and that all of them were challenged. On February 18, 1948, the Board, having considered the Petitioner's Objections and Contentions Concerning Challenged Ballots which were filed on November 14, 1947, the Regional Director's Report on Objections and Challenged Ballots which was issued on December 19, 1947, and the Petitioner's Exceptions to the Regional Director's Re- port which were filed on January 7, 1948, directed that a hearing be held for the purpose of resolving the issues with respect to the challenged ballots. Thereafter, pursuant to notice duly served upon the parties, a hear- ing was held at Salem, Virginia, on April 13 and 14, 1948, before a hearing officer of the Board. The Employer and the Petitioner ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The hearing officer's rulings made at the hear- ing were free from prejudicial error and are hereby affirmed. After 1 74 N L. R B. 1261. 81 N. L. R. B., No. 28. 190 ROWE-JORDAN FURNITURE CORPORATION 191 the hearing, both the Employer and the Petitioner submitted briefs to the Board. Upon the record made at the hearing on April 13 and 14, 1948, and upon the entire record in the case, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT A. The amendment of the Direction of Election The Decision and Direction of Election which the Board issued on August 20, 1947, directed, in the usual language, that an election be held "not later than thirty (30) days from the date of this Direc- tion," among employees "who were employed during the pay-roll period immediately preceding the date" of the Direction. The pay roll thus established as determinative was the pay roll for the period ending August 17, 1947. The Decision and Direction of August 20, 1947, was issued a few days before the effective date of the then recently enacted Labor Man- agement Relations Act. Accordingly, in order to permit the Peti- tioner to comply with the filing requirements of Section 9 of the amended Act, the Board, on August 27, 1947, issued an Order Amend- ing Direction of Election, which extended the time for holding the election until "not later than ninety (90) days" after August 20, 1947.2 The Employer, thereafter, by Exceptions and a Motion,3 protested the Board's extension of the time for holding the election, and re- quested that the petition be dismissed or, in the alternative, that the Board change the August 17 eligibility date established by its Decision and Direction of Election. In support of its Motion, the Employer alleged, in substance, that a strike of its employees had occurred since the issuance of the Direction of Election, that strikers had been re- placed, and that, as a result, the August eligibility date would not assure an election among a representative group of employees. The Board thereupon, on October 20, 1947, issued a Supplemental Order Amending Direction of Election, in which it denied without preju- dice the Employer's Exceptions and Motion; and further amended the Direction of Election by adding the words : "The Regional Di- rector is herewith instructed to insert in the Notice of Election the fol- lowing language : 'All persons employed during the pay-roll period immediately preceding the date of this Order in the unit hitherto found appropriate by the Board for the purposes of collective bar- The extension in this case was not unique ; the Board , as a matter of course and without application therefor , issued similar orders in all like pending cases in order to give to other labor organizations a similar opportunity to satisfy the amended Act. 3 The Employer 's Exceptions were filed on September 2, 1947 ; its 'Motion was filed on October 17, 1947. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining may present themselves at the polling place to vote under chal- lenge in order that the Board may resolve questions of eligibility'." 4 The pay roll indicated by this language was the Employer's pay roll for the period ending October 19, 1947. B. The strike of September 30,1947 Shortly after the effective date of the Labor Management Relations Act, the Petitioner complied with the filing requirements of Section 9 (f) and (h) enacted thereby. The parent American Federation of Labor, however, with which the Petitioner is affiliated, did not so comply. Therefore, under the then effective ruling of the General Counsel, an election could not be held under Board auspices. Thus denied the election it was seeking, the Petitioner requested the Em- ployer to agree that the question concerning the representation of its employees be resolved by an election conducted by an agency other than this Board. The Employer refused. Thereupon, the Petitioner, on September 30, 1947, called a strike. Approximately 60 of the Em- ployer's 90 employees responded to the strike call. The strike continued through the month of October. Meanwhile, as a result of the Board's decision in Matter of Northern Virginia Broad- casters, Inc.,5 in which the Board overruled the interpretation of the General Counsel on the necessity of compliance by the American Fed- eration of Labor in this type of case, the Regional Director pro- ceeded with arrangements for an election. At a conference of the parties called by the Regional Director to work out details of the election procedure, the Petitioner, on October 23, 1947, offered to end the strike if the Employer would reinstate all strikers without loss of benefits or rights. The Employer refused such offer, stating that some of the strikers had been replaced. Subsequently, on October 30, 1947, the strikers held a meeting at which they voted to call off the strike; and, on October 31, 1947, two groups of strikers appeared at the Employer's plant for the purpose of going to work. The Em- ployer informed some of these persons that they had been replaced; and informed others that they had not been replaced and that they would be informed, if they so desired, when openings were available for them. 4 This language in fact appeared in the Notice of Election prepared thereafter by the Regional Director. 5 75 N. L. R. B. 11. The decision was announced on October 7, 1947. ROWE-JORDAN FURNITURE CORPORATION 193 C. The replacement of strikers and the election of November 6, 1947 Throughout the month of October 1947, the Employer hired new employees as replacements for the strikers. By this means plant pro- duction, which dropped to the operation of one assembly line in the early days of the strike, was restored to three lines by the time the strike ended on October 31.6 In making the replacements, the Em- ployer rated the strikers on the basis of their ability and length of service; thus those strikers with the least service and least ability were replaced first, and those with the greatest length of service and the most ability were the last to be replaced. The Employer, however, did not inform the workers so hired that they were replacements for strikers. For that reason, uncertainty developed among new em- ployees as to their job tenure which caused the Employer to call two employee meetings during the course of the strike, at each of which the Employer informed the new workers that they were permanent employees and that, when the strike ended, their jobs would not be jeopardized by the strikers. No evidence was adduced by the Peti- tioner to show that workers hired as replacements for strikers were employed only in a temporary capacity,7 and we find that in fact they were hired as permanent employees, and thereby permanently re- placed striking employees." As noted above, an election was conducted on November 6, 1947, and all the 88 ballots which were cast were challenged either by the " The following are the approximate number of employees employed by the Employer at various pertinent dates in 1947: August 17 September 30 October 19 November 2 75 90 83 106 1 The Petitioner questions the validity and the permanency of the replacements because the Employer did not produce its original books and pay-roll records , and because the record does not show for how long after the election the replacements remained in the employ of the Employer ; and further contends that the fact of replacement is belied both by the Employer 's assertion at the original hearing in this proceeding that the number of its personnel was expanding, and by its help-wanted advertisements which appeared after the election . We do not agree with the Petitioner. Although the record regrettably contains much secondary evidence with respect to the replacement of the strikers, the direct testimony of the Employer's president on the subject is ample and uncontradicted ; the Petitioner, moreover, did not exercise its privilege of subpoenaing the Employer' s books and records, and it abandoned its request for evidence regarding the status of the replacements at the time of the hearing, when the Employer asserted that it would furnish such evidence but required time in which to prepare it. Nor, as a matter of principle, do we believe that because a business is in the process of increasing its personnel , an Employer should be denied the privilege of showing, as we think has been shown here, that strikers have been replaced. Accordingly, we do not find the Employer's help-wanted advertisements to be irreconcilable with its demon- stration that the strikers were replaced. 8 In view of the disposition of this case, the names of the strikers and their replacements are not listed in this Decision. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer or by the Board agent. The 88 challenged ballots fall into four groups: 1. The ballots of 18 persons, challenged by the Board agent, who were employed during both the August 17 and October 19 pay-roll periods. 2. The ballots of 21 persons, challenged by the Employer, who were employed during the pay-roll period of August 17, and who, we find, were strikers who had been permanently replaced prior to the election. 3. The ballots of 8 persons, challenged by the Employer, who were hired by the Employer subsequent to August 17, and who, we find, were strikers who had been permanently replaced prior to the election. 4. The ballots of 41 persons, challenged by the Board agent, who were hired subsequent to August 17 as replacements for strikers, and whose names appear on the pay roll of October 19. Conclusions The Petitioner, asserting that the August 17, 1947, pay roll is decisive as to eligibility, contends that only persons in challenge groups 1 and 2, above, are eligible voters. It thus asks the Board to sustain the challenges to the ballots of persons who replaced striking employees, and argues, in effect, that strikers who were permanently replaced are nevertheless entitled to vote in the election because they were ousted as the result of a series of acts impelled by the subsequently reversed decision of the General Counsel. The Employer, on the other hand, asserts that the Board's Supplemental Order of October 20, 1947, made its October 19 pay roll controlling as to eligibility, and contends that only persons in challenge groups 1 and 4, above, are eligible voters. The Employer thus contends that strikers who were permanently replaced prior to the election are ineligible, and asks the Board to overrule the challenges to the ballots of permanent replace- ments who were hired after August 17 but before October 19 .9 We do not agree entirely with either the Petitioner or the Employer. Section 9 (c) (3) of the Act provides, in part, that: "Employees on strike who are not entitled to reinstatement shall not be eligible to vote." In Matter of The Pipe Machinery Company," a case which also involved a question concerning the eligibility of replaced strikers to vote in an election, the Board construed this language of Section 9 (c) (3) to mean that economic strikers who have been permanently At the April hearing and again in its brief, the Employer renewed an earlier motion to dismiss the petition on grounds previously asserted. The earlier motion had been denied by the Board "without prejudice." In view of the disposition of the case on other grounds, we do not here pass upon the Employer 's motion. 10 79 N. L. R. B. 1322. ROWE-JORDAN FURNITURE CORPORATION 195 replaced are no longer eligible to vote in a representation election." That construction is controlling in this case, although the Petitioner would have us hold differently because, unlike the situation in the Pipe Machinery case where a strike occurred before an eligibility date had been chosen, the strike at the Employer's plant occurred after the Board had directed an election and established an eligibility date. Admittedly, the application here of the principle of the Pipe Machin- ery case deprives replaced strikers of the privilege of voting because of events which transpired after the Board's original Direction of Election, events, moreover, which were set in motion by the General Counsel's ruling, but we see nothing in the language of the Act to cause us to hold otherwise. The Board, in other like situations, frequently takes cognizance of events which occur after a Direction of Election has issued : thus, as a matter of course, the Board does not permit voting by employees who quit or are discharged for cause prior to the date of an election, although they may have been otherwise eligible when an eligibility date was designated. We, therefore, find that strikers who have been permanently replaced prior to the election are not eligible voters, and for that reason hereby sustain the challenges to the ballots of the persons in challenge groups 2 and 3. It does not follow, however, that because strikers who have been permanently replaced prior to the election date are ineligible to vote, their replacements are thereby made eligible voters. Section 9 (c) (3) of the Act deals only with the eligibility of strikers, and not with the eligibility of their replacements. The eligibilty of the replace- ments, therefore, can be determined only by reference to the Board's Direction of Election and the subsequent Orders entered herein. We see nothing in the language of the Supplemental Order of October 20, 1947, as set forth above, to support the contention of the Employer that it effected a change in the August 17 eligibility date established by the Board's Decision and Direction of Election, and made eligible persons hired after August 17 whose names appeared on the Em- ployer's October 19 pay roll. The October 20 Supplemental Order, which was made upon the Employer's ex parte recital of alleged facts concerning which the Board had no direct knowledge, was a device employed by the Board to facilitate the expeditious resolution of the "After the April hearing, the Petitioner filed charges, in Case No 5-CA-85, alleging that the Employer refused to bargain with the Petitioner , that certain of the strikers were refused reinstatement , and that others were penalized by the Employer because of their membership in, and activities on behalf of, the Petitioner . On October 8, 1948, the Regional Director declined to issue a complaint because of insufficient evidence ; and, no appeal having been taken , the case was closed on October 26, 1948. No further contention has been made that the strike at the Employer 's plant was caused by the Employer's unfair labor practices ; and we, moreover , are precluded from finding in a representation proceeding that such was the nature of the strike . Matter of Times Square Stores Corporation, 79 N. L. R. B. 361. 829595-50-vol 81--14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD existing question concerning representation, and was not designed to, and in fact did not, effect a change in eligibility dates.12 We, there- fore, hereby sustain the challenges to the ballots of persons in group 4. The parties are agreed, and we concur, that the remaining ballots, those of persons whose names appeared on both the August 17 and October 19 pay rolls, are the valid ballots of persons who were other- wise eligible on the date of the election. Accordingly, we overrule the challenges to the ballots of persons in group 1. However, as these are the ballots of only 18 employees in a unit with a normal comple- ment of such greater magnitude 13 and which, moreover, appears to have been expanding considerably both at the time of the election and for several months thereafter, we shall not direct that these ballots be opened and counted. Accordingly, under all the circumstances, we hereby set aside the election, and shall dismiss the petition.14 ORDER IT IS HEREBY ORDERED that the petition be, and it hereby is, dis- missed. CHAIRMAN HERZOG took no part in the consideration of the above Supplemental Decision and Order. 12 See , for example , Matter of H 0. Canfield Company, 76 N L . R. B. 606 , and Matter of Solar Electric Corporation , 77 N. L R B 414 , where the Board permitted strikers and their replacements to vote subject to challenge and the subsequent determination of their status by appropriate investigation. 13 See footnote 6, supra. 14 The requests by the Employer and the Petitioner for oral argument are denied, inas- much as the record , the Regional Director 's Report , and the various briefs , motions, objections , and exceptions filed by the parties, in our opinion , adequately present the issues and the positions of the parties.