Walter Packing, Inc.

WAI I FR '-\(K KIN(, IN' Walter Placking Inc. nd lAcal 26, Aialganlated Meat ('utters and Btcher Workmen of North America, A,-('IO(). Petitioner. (s 7 R(' 1415( \lach 1. 979 )E('ISI()N ()N RFVItNI'V, ()RI)lIR. ANI) l)IRF("I ON OF()1 NtI \' FI t ('I I(ON B (\IRM \N 1: \NIN(ii \D\ iiR.11:qFHRS 1 -KINs \i) \fi Ri.)II' Pursulant t) a )'esion and l)irc'liC)ll O)t iection issued hby the Regilonal l)irector for Region 7 on .\pzil 13. 1977, an election x, as condtucted Mav 13. 1977. The tally of ballots sho wed that of apptoxinlatel 3'9 eliglhle voters 14 cast valid ballotts tr alnd 12 against the Petitionelr and 12 cast chillenIled ballots. Objections were tiled hy both parties. I'he Regional [)irector ordered a hearing on the challeliges nd oh- jections. After the earing, the Iearing O()tfficer issued his report recommending that eight of the challenges be sustained and fo'ur overruled: thai the EnIIPloer's objections be overruled: that the Petili )ner's ()Obec- tion I be ove rruled: that lhe Petitioner's ()bjection 5 be sustalineCdL and that. in the cxcmt fPctit(llcr tlid not receive a majorits according to the revised talk. the election be set aside and a ic\e )ne c, ndlttecd. ()n October 7. 1977. the Ftnlploesr iled exccpptions to the I tearing (Otliccr's recomnendaltions relating to ive o( the challenges. to its objections, and to Petit ioner's Objection 5. (On N ovember 3. 1977. the Rcgimnal I)irector is- sued a 'hi rd Supplemental I)ecisiolnl n ('hallcinge and Order, in which lie rtltcilcd the tIiiiplo, cr'' .x- ceptions elating to five of) the chal lcnges. but hIle 1a spoe,/c ref'used to adopt thic Ileariln ()fficer's recom- mendation to sustain the challenge to the ballot cast by I.al-rr ( jippli. h ie F. ploel tiled a rCLqucst foli review of)t these rlings of the Regional I)irector. telegraphic order dated Jnnuarll 25, 1978, the Fnml- ployer's request for re iew was denied ( nlhember I ui - phy dissenting as to to te rulil g on (ipple's eligibiilit). On February 7 the Regional l)irccltor opened and counted the 5 challenged ballots which lihc had oer- ruled and issued a revisedl tall; which sh\red that Ih votes ere cast for. aind 15 igainlst the I'etitJoincr: and, on M;arch 3(), lie issued a I oilth StLSupplemelntal D)eci:ion on hjections and ( ('crltication o Repre- sentative, in which lie lfounl that the results as sh, ii bv the revised tall hliad rnelred the P'etitiole-r's ob-- jectionis moot. li(e adopted the learing ()Officer's rec- t Fhc I nlplicr ilu ai1 tu t . c .ll . it . ii t,, didl h l tIclgrtpilt rdupir ded ia Iti 1. 1977 t Oi rll \ il11!lcl ti ' h P)cilloni. .lih t \. t , ( ) ,')]I 1l- k ' .r d 4 ard prcm wl d no1C n . b](2r i t suppolrt l Oje I Im ollillclldatiolis o overl, tile liiplocr's objcctiois. and lie acc rdlinglx cerillticd tlil P'cltiticoner as relire- sclititi\c ot Ihe eploeccs, ill tle appropriate unit. Ihr'llci'tCer the I o 1 Ci il aI r Lequest for rcl\i\ ()t' tile Regiolnal I)lrctol's Foluiith Supplemelntall I)eci- sion o te basis thit tas the ssue (iipplc's eligibil- ity to otc is nos critical t te adliditv of te )tl- lioller' s certiication. the Board should rlxew tihe Irecord id,1 recoisider ils eilltier denial o the lil- ployer's request o] rc. le\ with respect threto. Bs telegraphic order d.atedl M1a 16. the iiillNCer's irequest \aits gr;tellcd. I e i llplo!)er tereafter iled brief ' e .ll I'llr-StlltllI t the' prl i,sionl of Sction 3th) )of the NIa- tional Labor Relations Act, as ellnded, tlie Natiotial la()or Relations 1Boald has delegat ed it s autlil in this pr-oceedinlg to a thriee-elieilhr panel. ' lie Board, up1on reconsidelration, has re\ ivewcd tile entire IreclId ill tilis case with respect t the eligihilit otf (iipple, including tile Ftnilplocrr's brief' oin r 'oils. and mliles tile tllowig filndings: I lie learing Officer fo;und that (ipple uorked the da, before the election and Was scheduled to x, ork on the das of( the election liegililliiiig at ()6 a.m. Ilowveer. (iipple did not report fo)r work at his scheduled time. nor lid lie call in to explli his abselnce. ie a;ppeal'ed to \tte and cast a balilt v Ici[h \is challenged h thlit LmploNcr. ' he I lcarilng ( )licc-r conuttdl d that (iippc ,Illltinlliedl to h' .ill i' tc llunil til the e'\ir'- tionll ' the liuc ,i11o c(i tIr ill eI[lilo.ee tIt ca ll : that Is. :() .i.n. o . lie iadded, it IS cleat th11at (;ipplc did not %x ork alt ll oil the day of( the election; thiat (ipple kIne\ that emilplo ces x Uho \ler.e ahsent anld file.d ito call Ii wcre colsMdcred terminated: tiha before (iipipic a:ttitedi to vtoe lie xsas ilntoried ('{idlc l.einingei, the lilo , cr's president. tha;l it as colil1par1 pioci to tire ciiiplo'ecs lor such oIl'iise: and thait the Fmplo i Cr's tobSscrer inltorlcld ( ;ipple at thile Polls thill lie was I1) longelr l considered an m- loo,cc. In tlhse circumllstanIes tlle Hlealring ()Officer recommiended that the challenge to (ipple's ballot be snstit;ined oni tlhe basis of Ro A. I. l.o.pcich ti'u/.lhuing ( o., 2 NINRB 517, ii. 5 (1973). v here the Board salid that its tesl tor determining ligibilitr "ftor emplolees entering ailnd [ca uing the unit is the clear. objectix\c htct of actil;l \\ork (n the cligihilits dates": i.e., the eigiilits aiid election dltt.s, subtject. otf cour'l, to tie excclitiolns cIt tortil in the notice of( e{lecion . lih Hearing Oflicer ix icdl ( i,t -0()/ia Blht'c, flxc.. 192 NI.RB 1247 (1971). :s distinglisible in that the elm- plo\ e there inxolved had I, orked on the election dax pr-iOr to beinlg dlischarged tist tlore tlore h olls opened /\Ilthough no excepti'ons .rc filed to tlhe I ealinlg ()tficer's fitlndigs, and Ecotlimcdal;titons concei-ninig ( ipplc's challen:cd hbalot, the Re.,ional )lrector in ils I hird SipplnlCllitil l[)eciioT loll ut,,d tihalt the 241 NI.RB No. 17 1 3 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hearing Officer erred in finding that Gipple had been terminated before he attempted to vote. The Regional Director stated that the Hearing Officer made no spe- cific findings, and the record was unclear as to whether prior to casting a challenged ballot Gipple was told that he was discharged, or whether he was advised on the following workday. But he concluded that, even if Gipple were discharged on the day of the election, he was eligible to vote, regardless of actual work performed on that day, since his employment status was not terminated until either the time he was required to call or report in, or until he was actually discharged. Thus, noting that the Board's policy, un- der the decision in Choc-Ola Bottlers, is to refuse to fractionalize the date of the election, the Regional Di- rector concluded that Gipple was eligible to vote, and he overruled the challenge to his ballot. The Employer's request for review of the Regional Director's Third Supplemental Decision advanced a number of contentions as to Gipple's eligibility, among which were that the Regional Director should have adopted the Hearing Officer's recommendation in the absence of exceptions; that, contrary to the Regional Director's conclusion, the record supports a finding that Gipple was terminated before he cast his challenged ballot; that the Regional Director erred in disregarding and failing to deny the applicability of Lotspeich Publishing; and that his reliance of Choc- Ola Bottlers was misplaced, noting also that the Board's decision in that case was reversed by the Court of Appeals for the Seventh Circuit.3 As noted, with Member Murphy dissenting as to Gipple, the Board concluded that the request did not raise substantial issues warranting review. However, upon the basis of our review and reconsideration we have concluded that Gipple was ineligible to vote. We are satisfied, contrary to the Regional Director, that the record supports a finding that Clyde Leininger informed Gipple prior to his voting that in view of his violation of company policy he was terminated, and his ballot would be challenged if he appeared at the polls to vote, and that Gipple at that time considered himself to be terminated. 4 Moreover, like the Hearing 3 Choc-Ola Bottlers, Inc. v. N.LR.B., 478 F.2d 461 (7th Cir. 1973). 4In our opinion the record does not support a finding that Gipple was not terminated by Leininger until after the election. It is undisputed that Gipple did not work on the election day and did not call in to explain his absence as required by company policy. Gipple's testimony is that he went to the plant Officer, we view the rule in Lotspeich Publishing to be applicable herein as Gipple, although not terminated until shortly before the election, did not actually work on the election day. Accordingly, Gipple was an ineli- gible voter whose challenged ballot was erroneously opened and counted. As his ballot was commingled with the valid ballots, and it is therefore impossible to ascertain how he voted, and inasmuch as one vote was critical to the results, we shall set aside the elec- tion and direct that a new election be held.5 ORDER It is hereby ordered that the election herein before conducted be, and it hereby is, set aside. [Direction of New Election and Excelsior footnote omitted from publication.] at approximately 4:15 p.m. on the day of the election, which was also pay- day. and that he first went to the office to get his paycheck and talked with Leininger. At this time, we are satisfied from our careful review of the record that Leininger told Gipple of the policy; that under that policy he was termi- nated; and that, if he voted in the election, his ballot would be challenged. Gipple then asked for his paycheck. Leininger told Gipple he would have to wait for his secretary to return as she was serving as the Employer's observer at the election. When Gipple attempted to vote, the Employer's observer challenged his ballot on grounds that he was no longer an employee. Gipple then returned to the office to obtain his paycheck and again talked with Leininger. As to the conversation which then took place, Gipple testified on direct examination that he asked, "if he still had a job"; that Leininger told him that he would have to think about it "a couple of days" and asked him to come in on the following Monday; and that, on Monday. Leininger told him that he would have to let him go. On cross-examination, Gipple testified as follows: Q. ".. .isn't it true that you went to see Mr. Leininger on Monday to ask for reconsideration of the decision to terminate you . . ?" A. "Yes" Q. "... he decided not to reconsider that decision . ..?" A. "Yes" Q. "... isn't it true that when Mr. Leininger made some comment to you about thinking it over, that what he said was he would think about possibly rehiring you?" A. "Yes" On being asked by the Hearing Officer what he remembered being said when he returned to the office to pick up his check, Gipple testified: "I think I asked Clyde if I still had my job or something. And he told me no, that he had let me go." The Hearing Officer then asked: "before you voted, when Mr. Leininger told you that he was going to challenge your ballot .... Did you understand at that point that he considered you to be no longer em- ployed?" Gipple responded, "Yes." Petitioner's counsel then asked Gipple: Q. "Why did you consider that you were no longer employed?" A. "He [Leiningerl said its just routine that if you don't call in and stuff, you're terminated." In view of this determination, we conclude that Choc-Ola Borders is factually distinguishable. 132