Wahl Clipper Corp.

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wahl Clipper Corporation andThe Employees of Wahl Clipper Corporation, by Attorney and Agent, Wil- liam E. Arnold, Petitioner and International As- sociation of Machinists and Aerospace Workers and Local 1988, AFL-CIO. Case 38-RD-49 February 29, 1972 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On April 9, 1971, the Regional Director for Region 13 issued a Decision and Direction of Election herein finding, inter alia, (1) that 29 former economic strikers placed on a preferential hiring list have a reasonable expectation of reinstatement during 1971 and (except for 10 whom he permitted to cast challenged ballots) were eligible to vote and (2) that one Dean Bess is not a supervisor as defined in the Act and therefore in- cluded in the unit. In accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review of the Regional Director's Decision as it relates to finding (1), above, and the Union filed a request for review as to his finding (2), above, both asserting that, in making the findings in question; he departed from officially reported precedent. The Na- tional Labor Relations Board by telegraphic order dated July 19, 1971, granted their requests for review and stayed the election pending decision on review. Thereafter, the Employer filed a brief on review. The Board has considered the entire record in this case with respect to the issues under review, including the Employer's brief on review, and makes the follow- ing findings:' As found by the Regional Director, the Union has for many years bargained for the requested unit of production and maintenance employees at the Em- ploy_er's Sterling, Illinois, plant. On November 4, 1969, 6 days after their most recent contract expired, the Union commenced an economic strike in support of its demands for a new agreement in which all 98 unit employees participated. The strike was settled on July 17, 1970, when a new agreement was entered into. The instant petition was filed prior thereto, on June 20, 1970.2 Based on our review of the record, we hereby affirm the Regional Director's finding that Bess does not possess or exercise any of the super- visory indicia listed in Section 2(11) of the Act ' The Union filed unfair labor practice charges, in Case 38-CA-953, on June 15, 1970, which were dismissed on July 31, 1970 The dismissal was appealed to the General Counsel on August 28, 1970. On December 23, 1970, the General Counsel sustained the dismissal of the charges, and a hearing was scheduled in the instant proceeding for January 26, 1971 195 NLRB No. 104 During the course of the strike the Employer hired replacements, several of whom continued to be em- ployed after the conclusion of the strike. Under the strike settlement, replaced strikers were placed on a "Replaced Status List," and thereafter all made uncon- ditional offers to return to work. Many of the individu- als on this list have been offered reemployment. How- ever, at the time of the hearing there were still 29 former strikers on the list. Their eligibility to vote is in dispute. The Regional Director concluded that the 29 former strikers who have not yet been offered reinstatement were eligible to vote "as a class." He noted that under the Laidlaw doctrine,' economic strikers uncondition- ally applying for reinstatement at a time when their positions have been filled by permanent replacements remain employees and, as such, are entitled to full rein- statement upon the departure of replacements unless said employees have acquired regular and substantially equivalent employment elsewhere. Further, he added that in Pioneer Flour Mills' the Board held that Section 9(c)(3) dealing with the eligibility of voters requires the inclusion of economic strikers in determining majority status in an 8(a)(5) proceeding, and he pointed to the fact that there, as here, the strike did not last 12 months and unconditional offers to return to work had been made. On the basis of these decisions, the Regional Director concluded that former strikers placed on a preferential hiring list would be eligible to vote as they had a reasonable expectation of reinstatement during 1971. However, he permitted 10 of the 29 former strik- ers to vote only under the challenge procedure because of factual issues raised as to whether they had obtained substantially equivalent employment elsewhere or abandoned their right to reinstatement. The Employer in its request for review contends that Section 9(c)(3) of the Act clearly precludes a finding that replaced strikers are eligible to vote in an election which is conducted after an economic strike has ter- minated or in the alternative where the election is held more than 12 months after the commencement of the strike. Eligibility of replaced economic strikers to vote in a Board-conducted election is governed by Section 9(c)(3), as amended in 1959.. The amended provision, which changed the Taft-Hartley total prohibition against eligibility for replaced economic strikers, states 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 provisions of The Laidlaw Corporation, 171 NLRB No. 175 ° 174 NLRB 1202 WAHL CLIPPER CORPORATION 635 this Act in any election conducted within twelve months after the commencement of the strike. The legislative history of this provision shows that it was adopted as a compromise measure. Various modifi- cations of the Taft-Hartley total prohibition had been proposed in both Houses. The ultimate compromise was described in various ways by various members of the Congress. Although, as pointed out by our dissent- ing colleague, Senator Kennedy at one point referred to the compromise as guaranteeing strikers the right to vote "for at least a year after the strike begins,"5 much of the legislative history indicates that his view was not the view of the Congress as a whole. For example, the resolution instructing the Senate conferees adopted on August 28, 1959, in the Senate described the compromise as follows (105 Congres- sional Record 15906): The proposal follows the Goldwater bill and the Administration's recommendations, except that economic strikers would not be permitted to vote after 1 year. Note the flat 1-year limitation in that statement. Even more specific was Representative Griffin's de- scription of the conference agreement on this compro- mise, in which he stated (105 Congressional Record, Appendix, September 9 and 10, 1959, p. A7915): Section 702 relaxes the present ban on voting by economic strikers in representation elections. Two limitations are imposed: First, economic strikers are not to be eligible to vote after 12 months from the commencement of the strike; and second, they shall be eligible prior to that time only in accord- ance with regulations established by the Board consistent with the purposes of the act. In other words, a maximum length of time is established but the Board may limit the right by regulations consistent with the purposes of the act. Similarly, Representative Barden described the com- promise as follows (105 Congressional Record, Appen- dix, p. A8061): It is important to note that section 702 does not give employees engaged in an economic strike who are not entitled to reinstatement an unqualified right to vote. Rather, this section provides that they shall be eligible to vote only under such regu- lations as the Board shall find are consistent with the purposes and provisions of this act and then only if the election is conducted within 12 months after the commencement of the strike. ' Senator Douglas, following the lead of Senator Kennedy, also described the compromise as permitting economic strikers to vote "for at least 12 months after the strike begins." (105 Congressional Record, Appendix, p A8373.) The legislative history, therefore, while not defini- tive,- lends considerable support to the view that the 12-month limitation was established as. a maximum period of voting eligibility for economic strikers. Fur- thermore, while the reference in the provision to em- ployees "who are not entitled to reinstatement" at first blush seems to qualify the limitation (as the Regional Director and our dissenting colleague state), it must be borne in mind that neither the Laidlaw Board decision nor the Supreme Court's decision in N.L.R.B. v. Fleet- wood Trailer, 389 U.S. 375 (1967), had been handed down at the time of this 1959 amendment. A review of the congressional ,debates strongly indicates that Con- gress at that time was under the impression that a striking employee who had been replaced had no re- maining job rights or any entitlement to reinstatement where the strike was economic in character. Thus, the reference to employees "not entitled to reinstatement" was not necessarily intended to qualify the limitation, but more probably was intended only as a further de- scription of economic strikers, to distinguish them from unfair labor practice strikers. For example, witness the following exchange in the course of a debate on this section of the Act between Senator Javits and Senator Case on April 21, 1959 (105 Congressional Record, p. 5731): MR. CASE of South Dakota. Will the Senator define what he means by economic strikers? MR. JAVITS. I will. Economic strikers are the strikers who engage in a strike which is for union organization, or which is for better terms and con- ditions or in connection with negotiation of a new union contract when the previous contract has expired. This does not refer to a striker who, be- cause of unfair labor practices on the part of the employer, is entitled by law to reinstatement. [Em- phasis supplied.] That is what I mean by an economic strike. But if the legislative history be regarded as inconclu- sive, we would still be left with the factual and practical question of the extent of the genuine interests of re- placed economic strikers in the issues which will be determined in the election. It was, of course, a recogni- tion of the speculative nature of such interests which led the Congress in the first instance to adopt the 12- month statutory limitation. As Senator Lausche in- quired in the early stages of the debate (105 Congres- sional Record, p. 5731, April 21, 1959): Has the Senator from New York given any con- sideration to what the situation would be when the economic strikers had been away from their work, let us say, for a year and had been replaced by new workers? How could the question ever be resolved with regard to who should be the bargaining agent for the workers? On the one hand we would have those who had taken the place of the economic 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers, and on the other hand we would have the economic strikers. How would the question be re- solved, and how long would the economic striker be vested with the right to vote on an equal basis with the worker? Our dissenting colleague would have us view re- placed strikers in a manner similar to laid-off em- ployees as to whom we either permit or deny voting eligibility on an analysis of whether or not such persons have "a reasonable expectancy of reemployment within the foreseeable future." Even assuming that the statute leaves us some discretion to apply such a test-i.e., reasonable expectancy-it seems to us that the parallel with laid-off employees is not entirely apt. The contin- gencies -prerequisite to reemployment for economic strikers are considerable, for the replaced economic striker must await snot merely an improvement in the business of his employer but also the termination of employment of his replacement-an event the timing of which is highly speculative if, indeed, it is to occur at all. Consequently, it seems to us the most reasonable course, as well as the most reasonable interpretation of the statutory language, is 'to hold that replaced strikers are not eligible to vote in an election held more than 12 months after the commencement of an economic strike. Since the election directed herein will be conducted more than a year from the commencement of the eco- nomic strike, we find that only those replaced former economic strikers who are actually reinstated by the eligibility date of the election shall be entitled to vote. Accordingly, the case is remanded to the Regional Director for the purpose of conducting an election pur- suant to his Decision and Direction of Election, as modified herein, except that the eligibility payroll period shall be that immediately preceding the date of issuance.' MEMBER FANNING, dissenting: The right to vote in this decertification election is here denied to former economic strikers who have a reasonable expectation of reinstatement in the near fu- ture. My colleagues do this simply because the election is being held more than a year after commencement of the strike. The strike lasted some 8 months; all strikers In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote; all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them. Excelsior Underwear Inc, 156 NLRB 1236; NL.R.B. v Wyman-Gordon Co, 394 U S 759. Accordingly, it is hereby directed that a corrected election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 13 within'7 days of the date of this Decision on Review. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed were then put on a "Replaced Status List" incident to ending- the strike; all sought unconditional reinstate- ment; many have been reinstated and are eligible to vote; some declined reinstatement and presumably have been removed from the list; 29 were still on the list when the election was directed and, based on record evidence, were found by the Regional Director eligible to- vote as a class; 19 were specifically found to have a reasonable expectation of reinstatement in 1971; and 10 were to vote subject to challenge.7 My colleagues read Section 9(c)(3) as denying voting rights to "replaced former economic strikers" after 12 months from the date the strike commenced even though they have a reasonable expectancy of reemploy- ment in the near future. They seem preoccupied with the time limit, though that was a clear grant of benefit to strikers with no reinstatement rights at all.' They give no weight to the precondition spelled out in the statutory section that the employees meant to be affected are those "engaged in an economic,strike who are not entitled to reinstatement," and they deprecate the necessary impact of important recent pronounce- ments by the courts and the Board which-although not dealing specifically with voting rights-have signifi- In effect the Regional Director treated these not yet reemployed former strikers just as the Board has long treated temporarily', laid-off employees Those who have "a reasonable prospect'of recall in the near or foreseeable future" are entitled to vote while in laid-off status. See Hamilton Watch Company, 118 NLRB 591, 594, where the Board distinguished between groups of employees laid off in 1956 and 1957 whose' prospects of recall were, according to the employer, great as,to the 1957 group but limited as to the earlier group whose work was of a type no longer being, done See also Noblett-Sparks industries, Inc., 64 NLRB 1501, 1504, where employees laid off at the end of the war were deemed temporarily laid off because they would be reemployed after reconversion and were eligible to vote. The conference bill was referred to as follows by then Senator Kennedy. Economic strikers. The conferees adopted the substance of the provi- sions of the Senate bill reversing the Taft-Hartley rule that economic strikers who have been replaced should not vote in an NLRB election This is a highly important change, for the Taft Hartley prohibition had, in the words of the President of the United States, opened the door to union-busting practices. The House bill contained a provision on this, but it'provided that economic strikers would not have the right to vote if the issue of recognition had been raised before the strike began.. We guarantee them the right to vote for at least a year after the strike begins [See 105 Congressional Record 16414, September 3, 1959.]I By this quotation I emphasize the grant of a voting benefit, not the words "at least." I have no difficulty with the proposition that the legislative history lends support to the view that the 12-month limitation! was established as a maximum period of eligibility to vote for economic strikers, but I construe the limitation as applying to those who continue on strike for more than a year and are still on strike at the time the election is held In this regard I would also quote from Representative Barden, using the balance of the paragraph immediately before the quotation of my, colleagues, which reads- Section 702 only restores the law with respect to voting of economic strikers to what it was prior to the enactment of the National Labor Relations Act of 1947, as amended, with the qualification, however, that after the expiration of 12 months after the commencement of the strike, economic strikers not eligible for reinstatement, would lose such right to vote as they may have had prior to the expiration of such 12-month period Prior to 1947, the Board sometimes permitted either the strikers, the replacements, or both the strikers and replacements to vote depending upon all the circumstances: [105 Congressional Record, Appendix, p A8061] WAHL CLIPPER CORPORATION 637 cantly clarified the reinstatement rights of employees who have abandoned an economic strike. The groundwork for improved reinstatement rights for economic strikers was laid by the Supreme Court in N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375.9 In that case, in 1967, the Court vacated a decision of the Court of Appeals for the Ninth Circuit that de- clined to enforce a Board order on the premise that the right of economic strikers to jobs must be judged as of the date they apply for reinstatement. The Supreme Court emphasized the continuing employee status of strikers under Section 2(3) of the Act, where they have not obtained regular and substantially equivalent em- ployment, and concluded that the basic right to jobs "cannot depend upon job availability as of the moment when applications are filed." The following year the Board issued Laidlaw Corporation, 171 NLRB No. 175, a unanimous decision enforced in 414 F.2d 99 ,(C.A. 7), cert. denied 397 U.S. 920, holding as follows: ... economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and sub- stantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and sub- stantial business reasons .... The effect of these pronouncements necessarily dimin- ishes the number of strikers who are not entitled to reinstatement within the meaning of Section 9(c)(3). The time limitation applies only if the strikers fit the definition of coverage, which is explicit. How can re- placed former strikers who have requested reinstate- ment and been put on a preferential recall list be said to be "not entitled to reinstatement"? The statute and its 1-year limitation on voting rights does not purport to apply to them. In the circumstances it is eminently appropriate to treat these former strikers who are awaiting reinstatement in a manner similar to laid-off employees-as the Regional Director did-and permit to vote without challenge those with a reasonable ex- pectancy of reinstatement within the foreseeable fu- ture.10 ' In Fleetwood the denial of jobs to six former strikers was based on a lack of job openings as of that date, a temporary condition which, as the Board found in affirming the Trial Examiner, "the Respondent knew would change and intended to change," 153 NLRB 425, 427, distinguishing on its facts Brown and Root, Inc., 132 NLRB 486, 493-494 The Board there denied backpay, finding no duty on the employer to seek out or prefer former strikers for jobs which opened up after their application because under company practice no applicants for employment were placed on a list and notified when vacancies became available and the economic strikers in question eventually were reinstated or declined reinstatement 10 The court of appeals in Fleetwood rejected the legal contention that economic strikers with a reasonable expectation of recall in the foreseeable future remained employees just as laid-off employees do. The court noted My colleagues place economic strikers who have sought reinstatement a cut above a new job applicant, subject to recall before an employer may hire a stran- ger, but required to achieve actual reinstatement within the statutory year or at least by the election eligibility date if they are to vote." Reading the legislative history as providing that economic strikers have a flat 1-year limitation on voting even though the strike has lasted less than a year and the strikers by requesting reinstate- ment have become former economic strikers, and read- ing the statutory "who are not entitled, to `reinstate- ment" qualification as totally unaffected by subsequent Supreme Court developments in the area of reinstate- ment, my colleagues question the genuine interests of replaced economic strikers in election issues. Surely this begs the question. The Board has before it a record specifically showing a reasonable prospect of recall in the foreseeable future for these former strikers based, in this case, on normal company turnover. A laid-off employee probably would have the same prospect of recall. How then can it be said that the interest in the election result differs between a laid-off employee and a former striker? My colleagues muster a difference by relying on the necessity for the departure of replace- ments, surely an argument of limited applicability in this age of accelerated automation and diminishing spe- cific skills. In those few cases where the identity of departing replacements rather than their total number is in issue, the prospect of recall can be examined in that context. To dismiss the Fleetwood and Laidlaw rights of economic strikers under the guise of reasonableness is, in my opinion, tantamount to the Board's acting in an irresponsible manner. that it had no knowledge of the Board using this test in the economic striker context and was not itself inclined to do so. It saw no reason for applying the "theory that employees who are quite certain to be recalled should be given a voice in selecting the bargaining agent who will represent them" in a situation where the question is not one of voting rights but of whether an employer had committed an unfair labor practice by failing to reinstate economic strikers N.L.R B. v. Fleetwood 366 F.2d 126, 129 (C A. 9) The Supreme Court in turn vacated the decision of the court of appeals, empha- sizing the continuing employee status under Sec 2(3) of economic strikers who seek reinstatement following a strike. Concurring Justices Harlan and Stewart also emphasized this continuing employee status . 389 U.S 375, 382. Of course those strikers who are reemployed before the eligibility date for this election have the right to vote even though they are reinstated more than 12 months after the commencement of their strike. Section 9(c)(3) in no way affects their right to vote, they vote because of their current employ- ment status. By the same token, those strikers who have not yet been reemployed by that date but who have a reasonable expectancy of reemploy- ment in the near future are entitled to vote under well-established Board rules relating to employees with such employment expectations See fn. 7 above Although Sec 9(c)(3) does not give them the right to vote, it clearly does not cut off their right to vote. The Regional Director's formula- patterned after the well-established rules for laid-off employees-surely cre- ates no "vested job interest in perpetuity" as one employer has suggested. See Laidlaw Corporation v. N.L.R.B., 414 F.2d 99 (C.A 7); cert denied 397 U S. 920. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obviously my colleagues do not really see these former economic strikers as employees entitled to full reinstatement upon departure of replacements despite the "long shadows" cast by Fleetwood, Laidlaw, Ameri- can Machinery, and Pioneer Flour'2-shadows further lengthened by recent decisions of the U.S. Courts of ii American Machinery Corporation, 174 NLRB 130, enfd 424 F 2d 1321 (C'A. 5), where the employer urged the difficulty of seeking out strik- ers months or years after their application for reinstatement and the court of appeals observed that "a concerned employer will find means to cope with this burden," possibly by establishing a "reasonable" time during which strikers' applications would be considered current; Pioneer Flour Mills 174 NLRB 1202, enfd. 427 F 2d 983 (C.A. 5), cert. denied 400 U S 942, where the court of appeals noted that the Board had seen fit to reverse earlier policy of not including replaced economic strikers in the bargaining unit when majority status was questioned and, based on Fleetwood, Laidlaw and American Machinery, declared the present state of law to be "that perma- nently replaced strikers retain an expectation of future employment until they have surrendered their interests Thus, it is appropriate to include them in the bargaining unit." Appeals for the Tenth and Sixth Circuits.", I see no support in reason or precedent for their interpretation of Section 9(c)(3). The Regional Director has found these replaced economic strikers to have a reasonable expectation of such reinstatement by a date certain. I would affirm him. Although the "long shadows" reference to Fleetwood and Laidlaw, ap- pearing in the American Machinery and Pioneer Flour opinions of the Court of Appeals for the Fifth Circuit, occurs in the context of an administrative agency's power to change law by adjudication rather than rule, those long shadows surely presage a changed policy with respect to voting rights prob- lems, as in the instant case 13 See N.L.R.B. v. Johnson Sheet Metal, Inc, 442 F.2d 1056 (C.A 10). See also N.L.R.B. v Hartmann Luggage Company, 453 F 2d 178 (C A 6), where the court interpreted Sec 9(c)(3) as a grant of "additional" rights unrelated to the employee status 'of strikers who were seeking reinstatement after being on strike for more than a year . The court also agreed with those courts of appeals that have recognized the Laidlaw,principle, and it found no merit in a contention that an employer is entitled to distinguish between "position made available by expanding production and those made available by resignation "