John W. Thomas Co.

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cast, we shall, in accordance with the recommendation of the Regional Director, certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers, and Helpers of America, AFL, and that the said labor organization is not the exclusive representative of the em- ployees of the Employer.] JOHN W. THOMAS CO., PETITIONER aRd RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1086, A. F. of L. Case No. 18-RM-157. Jan- uary 17,1955 Supplemental Decision and Certification of Results of Election Pursuant to a Decision and Direction of Election issued herein on August 19, 1954,' an election by secret ballot was conducted on Sep- tember 9, 1954, under the direction of the Regional Director for the Eighteenth Region, among the employees of the Employer in the unit found appropriate by the Board. At the close of the election, the par- ties were furnished a tally of ballots. The tally shows that, of approxi- mately 325 eligible voters, 134 voted for and 134 voted against the Union. There were also four challenged ballots. On September 15, 1954, the Union filed objections to the election. The Regional Director investigated the objections and the challenges, which were sufficient in number to affect the election results. On September 24, 1954, the Regional Director issued a report and recom- mendation on objections and challenged ballots. In this report, the Regional Director found that the Union's objections were without merit and recommended that they be overruled. He further recom- mended that the challenges to all four ballots be sustained. The Union thereafter filed timely exceptions to part of the Regional Direc- tor's report. The Objections 1. With respect to the Union's first objection, the Regional Director found that the Employer's president and store superintendent made brief announcements to the employees over the Employer's department store public address system shortly before the store opened for business on the day of the election. The Employer's president reminded the employees of the Board election which was to be held that afternoon and urged all employees to vote. The store superintendent referred to the eligibility date for voting and pointed out that "on call" and "ex- 1 Not reported in printed volume of Board Decisions and Orders. 111 NLRB No. 37. JOHN W. THOMAS CO. 227 tra" employees were eligible to vote a He also urged all employees to, vote, requesting those who were in doubt as to their eligibility to present themselves at the polling place for the purpose of ascertaining their voting status. The Regional Director concluded that these announce- ments did not violate the Board's election rule, established in the Peer- less Plywood decision,3 which prohibits election speeches on company time to massed assemblies of employees within 24 hours before ballot- ing begins. In its exceptions, the Union does not question the factual findings of' the Regional Director. It argues, however, that the electioh should be, set aside because the above announcements, considering the background against which they were made, such as that "extra" and "on call"' em- ployees did not vote in a prior Board election at the Employer's store, which the Union won, election notices must have been posted through- out the store, and the Union had picketed the Employer over an ex- tended period of time, fall within the proscription of the Peerless Ply- wood rule. We do not agree with this contention. The announce- ments complained of were mere urgings of employees to vote and wholly nonpartisan in character with respect to the election. Even when viewed against the background proposed by the Union, we find 'that they were not campaign speeches such as are prohibited by the rule. In these circumstances, and without deciding whether the an- nouncements were made on company time, we find that the election rule, adopted in the Peerless Plywood case does not apply here,4 and that there is therefore no basis for setting aside the election. Accordingly,, we overrule this objection. 2. As no exceptions were filed to the Regional Director's recommen-, dation that the Union's second objection be overruled, we adopt this, recommendation. The Challenges The challenged ballots were cast by Eloise Cox, Inga Hall, Geraldine Lindstrom, and Marian Barhorst. The Regional Director's investiga- tion discloses that during the latter part of 1953 these individuals joined in the Union's economic strike against the Employer. Shortly there- after each of them was in effect advised by the Employer to return to. work or face replacement. None of these four individuals sought to return to work and the Employer filled the jobs vacated by all of them. The replacement hired for Cox in August 1953 is still at work in Cox's former position. Lindstrom was replaced in October 1953 and her prestrike job was abolished following her replacement's departure. 2 The Decision and Direction of Election herein specified that such employees were eligible to vote 3 Peerless Plywood Company, 107 NLRB 427. 4 Cf National Petro-Chemwals Corporation, 107 NLRB 1610 344056-55-vol 111 16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hall's job has been held by three people since Hall went on strike, the last of whom was hired in July 1954. And Barhorst's job has had two occupants, the second of whom was hired in December 1953. None of the strikers involved have at any time asked to return to work. The Regional Director found that all the four employees in question were permanently replaced while on economic strike, before the date of the election herein. He accordingly recommends that the challenges to their ballots be sustained. In its exceptions, the Union questions the validity of the Regional Director's conclusion with respect to the above -named persons, and requests a hearing for the purpose of determining whether those in- dividuals have been permanently replaced . In the former connection, the Union's exceptions are devoted mainly to the cases of Hall and Barhorst. In those cases the Union, claims support for its position in the fact that the job of each individual concerned has to date been held by more than one person . Our dissenting colleague also empha- sizes this point, asserting that "this turnover of replacements gives rise, at the very least, to a reasonable inference that the replacements were temporary rather than permanent ." In our opinion, however, this "turnover of replacements " factor plainly fails to support the positions taken by the Union and the dissent. For, in the language of the Union itself in another connection , "In the instant case we are dealing with a department store where rapid turnover of em- ployees . is a known and accepted fact." Clearly, therefore, the fact that there have been 2 successive replacements in Barhorst's pre- strike job, and 3 in Hall 's, during the extended period involved, par- ticularly under the circumstances described above, can give rise to no inference other than the obvious one that Hall 's and Barhorst's prestrike jobs were permanently filled before the election. On the basis of all the above, we agree with the Regional Director that Cox, Hall, Lindstrom, and Barhorst were permanently replaced before the ,election, while out on economic strike.' The Union, while requesting ,a hearing to litigate this issue , does not point to any specific evidence which it would adduce at such a hearing to show that the replace- ments for the aforementioned strikers were employed only in a tem- porary capacity. Accordingly, under all the circumstances, we find that the Union has failed to raise any substantial or material issues sufficient to warrant the holding of such a hearing .6 The Union excepts to the Regional Director 's report on the further ground that, of itself, the replacement of Cox, Hall, Lindstrom, and Barhorst did not render those individuals ineligible to vote in the election. These persons , the Union claims, would have been entitled 6 We deem it unnecessary to inquire into whether Lindstrom 's prestrike job was per- manently or only temporarily abolished following her permanent replacement 's departure. 6 C C. Anderson Stores Company, 104 NLRB 218. JOHN W. THOMAS CO. 229 to reinstatement as of the date of the election, and hence eligible to vote if at that time there existed, or there were anticipated in the near future, job vacancies which they were qualified to fill; and a hearing should be conducted to resolve this question. We find the Union's position lacking in merit. Section 9 (c) (3) of the Act expressly provides that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote." Under well-established principles, economic strikers lose their right to reinstatement upon being permanently replaced in a specific job.' It accordingly follows that Cox, Hall, Lindstrom, and Barhorst, having been permanently replaced prior to the election, in the manner found above, were not eligible to vote therein. As rec- ommended by the Regional Director, we shall therefore sustain the challenges to their ballots.' In view of all the foregoing, and as the Union failed to receive a majority of the valid ballots cast, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for Retail Clerks International Association, Local 1086, A. F. of L., and that such union is not the exclusive representative of the employees at the Minneapolis, Minnesota, store of John W. Thomas Co., in the unit heretofore found by the Board to be appropriate.] MEMBER PETERSON, dissenting : It seems to me that my colleagues, by adopting the conclusion of the Regional Director that the employees in question have been permanently replaced, despite indications to the contrary which I think raise a substantial and material issue warranting a hearing, are giving the pertinent sentence in Section 9 (c) (3) a meaning at odds with the statutory language and with the legislative intent. Congress provided that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote." This provision had its origin in the Senate Committee Bill (S. 1126), and as reported to and passed by the Senate read as above quoted, but with this qualifica- tion : "unless such strike involves an unfair labor practice on the part of the employer." The Senate Committee Report explained this provision as follows : I When elections are conducted during a strike, situations fre- quently arise wherein the employer has continued to operate his 7 N L. R. B v. Mackay Radio if Telegraph Co, 304 U. S. 333; Kansas Milling Company v. N. L. R B, 185 F 2d 413 (C. A. 10) ; The Pipe Machinery Company, 79 NLRB 1322, Midwest Screw Products Company, 86 NLRB 643 B In so doing, we note that the Union and our dissenting colleague advance arguments directed to the desirability of the provision of Section 9 (c) (3) in issue here. As we have heretofore pointed out in this very connection, however, "It is our duty to administer the law as written, not to pass upon the wisdom of its provisions " The Pipe Machinery .Company, supra. 9 1 Legis Hist. 431. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business with replacement workers. If such strike is an economic one and not caused by unfair labor practices of the employer, strikers permanently replaced have no right to reinstatement (NLRB v. MacKay Radio, 304 U. S. 333). It appears clear that' a striker having no right to replacement should not have a voice in the selection of a bargaining representative, and the committee bill so provides. Senator Taft explained the Senate Committee provision as foal- lows :10 The bill provides, that in elections, one shall not have the right to vote if he has no right to be reinstated in his employment... under present decisions if the new men are standard replacements, men willing to work, and taken on for permanent work, then they take the jobs of men who are striking and the former workers are not entitled to have their jobs back. This bill provides in that case that the former employee cannot vote in the election, .. . In conference, the qualifying "unless" clause was omitted, with this, explanation : 17 ... The Senate amendment also contained a provision that em- ployees on strike who were not entitled to reinstatement should not be permitted to vote unless the strike involved an unfair labor practice on the part of the employer. This provision is also in- cluded in section 9 (c) of the conference agreement with the `unless' clause omitted. The inclusion of such clause would have had the effect of precluding the Board from changing its present practice with respect to the treatment of `unfair labor practice' strikers as distinguished from that accorded to `economic' strikers- In summarizing the principal differences between the Conference Report and the bill as passed by the Senate, Senator Taft said, in this regard : 12 ... With respect to the rights of strikers to vote, the Senate language read : `employees on strike who are not entitled to re- instatement shall not be eligible to vote unless such strike in- volves an unfair labor practice on the part of the employees.' This clause provoked some controversy in conference as the House bill provided that unfair labor practice strikers would cease to be employees under the Wagner Act. The Senate refused to agree to the House method of dealing with unfair labor practice strikers. The decisions of the Board which treat unfair labor practice strik- ers and economic strikers differently does not rest on anything in the act but is simply a matter of determination by the Board. io 2 Legis Hist 1014 1 Legis Hist. 553-4 12 2 Legis. Hist 1541-2. JOHN W. THOMAS CO. 231 The effect of the Senate language, however, would have been to have written this policy into the statute. Since it was not the in- tent of the Senate conferees to approve the practice, they agreed to omit this clause. Thus the matter still rests within the discre- tion of the Board. In my opinion, the significant point, which I fear my colleagues -overlook, is that strikers are not automatically deprived of voting -eligibility ; they lose their right to vote in an election conducted during a strike if, but only if (being otherwise eligible) they "are not entitled to reinstatement," i. e., have, in fact been permanently replaced. In order to determine whether they are or are not so entitled, it would seem plain that a factual inquiry, along the lines suggested below, must first have been made. In the absence thereof, I would suppose that strikers, at the least, are presumptively eligible, especially if the strike is still current, for the term "employee" includes those "whose work has ceased as a consequence of or in connection with, any current labor dispute." According to the Regional Director's report, the Union which in June 1943 was certified as the representative of the employees, in- cluding the four challenged voters, began picketing the Employer on August 18, 1953. About October 31, 1953, it declared that a strike was in progress. Only some of the employees, including those here involved, joined the strike. Apparently the strike was in progress when the Employer filed the instant petition, when the Union's cer- tification was 1 year old. Presumably the strike is still current, for the Regional Director's report (dated September 24, 1954) does not state that it has been terminated, but rather that none of the four challenged voters "has made any attempt to return to work since they joined the economic strike." The Regional Director, however, disposes of the eligibility of Cox, Hall, and Barhorst with the undocumented statement that each had been "permanently replaced." Yet, the report specifically states that the replacements for Barhorst and Hall have, themselves, been re- placed. In my opinion, this turnover of replacements gives rise, at the very least, to a reasonable inference that the replacements were temporary rather than permanent. With regard to Lindstrom, the Regional Director, without citing supporting facts, concludes that the position formerly occupied by Lindstrom no longer exists because the Employer has decided that the bag department can be operated with one less employee by reason of a decline in business. It seems to me that the quantum of proof recited in the Regional Director's report and on which he bases his conclusions, which are adopted in the majority opinion, falls far short of that required by Board prece- dent to overcome the presumption that an economic striker is eligible to vote in a representation election. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The right to reinstatement can be disproved only by facts estab- lishing lack of entitlement, generally permanent replacement. Mere conclusionary statements are insufficient. The Board has stated, re- garding this question, that, "of course, unilateral utterance of the word permanent is not, of itself, determinative; the actual facts in every case must be weighed." 13 In my opinion, the present record in this case is sorely lacking in facts susceptible of being weighed to determine the eligibility of the four challenged voters. In the past, when seeking to determine whether strikers had been permanently replaced, the Board has considered, among other things, such factors as what was said to replacements regarding the tenure of their employment when hired; the replacements' ability to perform the work as appraised by their supervisors; whether the employer would rehire the strikers or reinstate them in preference to the re- placements if, as and when the strikers offered to return to work; 14 and, where the job of a striker has allegedly been eliminated for eco- nomic reasons, whether the records of the employer substantiate the alleged economic considerations, or, whether other positions for which the economic striker is qualified are open.15 Thus the Board has ever been zealous in guarding the rights of economic strikers. In a some- what analogous situation regarding the issue of the right to reinstate- ment of a discriminatee who was also an economic striker, and had been permanently replaced, the Board held that inasmuch as the per- manent replacement had been discharged before the striker's offer to return to work, and the position was open when the offer was made, the striker was entitled to reinstatement."' In sum then, the Board has always treated the question of permanent replacement with care- ful consideration. It would seem, therefore, that the majority's affir- mation in this case of the Regional Director's recommendation inso- far as the challenged ballots are concerned, is inconsistent with Board precedent and past Board policy. I fear that my colleagues, by assuming without adequate proof that the challenged voters have been permanently replaced, are unneces- sarily facilitating the elimination of the Union as the representative of the employees here involved. In my opinion, Section 9 (c) (3) does not require such a result. Indeed, what is here made possible is precisely what the President recently recommended be made "im- possible," namely, permitting an employer "to destroy a union of his employees" by requesting an election during the course of an eco- nomic strike." 3 The Pipe Machinery Company, 79 NLRB 1322, 1325. 14 Columbia Pictures Corporation, 64 NLRB 490, 515-520 15 The Pipe Machinery Company, supra, cited in footnote 13. 16 Union Bus Terminal of Dallas. Inc., 98 NLRB 458. 17 The President's Recommendations Affecting Labor Relations Management, 83d Con- gress, House of Representatives, Document No. 291, January 11, 1954, 33 LRRM 88. CENTRAL VALLEY PIPE COMPANY 233 I think the proper course would be to remand this case for a hearing, to adduce evidence as to whether or not the challenged voters have lost their right to reinstatement because they have been permanently replaced. CENTRAL VALLEY PIPE COMPANY and INTERNATIONAL ASSOCIATION OY MACHINISTS, DISTRICT LODGE No. 87, AFL, PETITIONER. Case NO. 20-RC-2655. January 18,1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National La- bor Relations Act, a hearing was held before Albert Schneider, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : The Employer, a California corporation, has its main office and plant at Fresno, California, and branch warehouses at Stockton, Cali- fornia, and Burley, Idaho. The Fresno plant and Stockton warehouse are involved herein.' The Employer is engaged in the manufacture and sale of well pipe casing. It also sells and distributes line pipe which it obtains, already fabricated, from Kaiser's Fontana, Califor- nia, plant. During the year ending December 31, 1953, the Fresno plant purchased raw materials valued at $175,000, of which approxi- mately $60,000 represented shipments received directly from out-of- State. During the salve period, the Fresno plant's sales were in ex- cess of $600,000 in value, of which approximately $37,500 represented direct out-of-State shipments. The record indicates that another $37,500 worth of materials was shipped outside the State to the Idaho warehouse on order of the Fresno plant. However, those shipments were not first received by the Fresno plant, but were sent directly from Kaiser, the Employer's supplier, to the Idaho warehouse.2 It is apparent from the foregoing that the total direct out-of-State ship- ments by the Fresno plant itself amount to only $37,500, which is less than the Board's minimum direct outflow requirement 3 Apart from other considerations, as the additional $37,500 shipments to the Idaho warehouse mentioned above were made not by the Fresno plant, but by the supplier, they cannot be included in the Fresno plant's outflow. 1 Only two employees work at the Stockton branch which is used primarily as a ware- house for light pipe. The Idaho warehouse has no regular employees. 2 No separate jurisdictional facts are presented in the record as to the Stockton and Idaho warehouses. 8 Jonesboro Grain Drying Cooperative, 110 NLRB 481. 111 NLRB No. 38.