Bowman-Lawrence, Inc. d/b/a Belt Supermarket

DECISIONS O)F NATIONAl LABOR REL.ATIONS BOARD Bowman-Lawrence, Inc. d/b/a Belt Supermarket and Mark A. Munsell, Petitioner and Retail Store Employees Union Local No. 782, affili- ated with United Food and Commercial Work- ers, AFL-CIO. Case 17-RD-758 February 10, 1982 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBEIRS FANNING, JENKINS, ANI) ZIMNM ERMAN Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered an objection and de- terminative challenges in an election held October 16, 1980,' and the Hearing Officer's report recom- mending disposition of same. The Board has re- viewed the record in light of the exceptions and briefs, and hereby adopts the Hearing Officer's findings and recommendations, as modified below.2 1. The Hearing Officer overruled the Employer's challenge to the ballot of Linda Bowman, who had joined an economic strike against the Employer's predecessor, Belt Supermarket, Inc., herein called Belt, and had not been recalled by the Employer at the time of the hearing. The Hearing Officer found that, with respect to Bowman, the presumption of continued eligibility for an economic striker had not been rebutted. The Employer excepts contend- ing, inter alia, that the challenge should be sus- tained since Bowman has abandoned her pre-strike job. We find merit in this exception. Bowman began working for Sears, Roebuck and Company on August 25, 1980, at a facility in Kansas City, Missouri. She had applied for the po- sition on July 1, 1980, stating that her reason for leaving her job with Belt was that she "moved to Raytown." Raytown is within the Kansas City, Missouri, metropolitan area and is located approxi- mately 50 miles from the Employer's location in Saint Joseph, Missouri. At her interview with Sears, the interviewer noted on the application "on strike and moved with family" and "moved to Kansas City, two months looking." Unlike the Hearing Officer we conclude that the above evidence is sufficient to rebut the presump- ' The election was conducted pursuant to a Regionlal Director', Dcci- sion and Direction of Election The tally was 6 fior and 17 against the Union; there were 12 challenged ballots. 2 In the absence of exceptions thereto, the Board adopts, proforma, the Hearing Officer's recommendation that the Union's objection be over- ruled in its entirety) and that the challenges to the ballots of Emma Bath- gate, Greg Black. Diane Hays. Tomn Hinkley., Gary Hogan, Michael Kneib. Gary Lawrence, and Peggy McGinnes be overruled In light of our findings below, however. these ballots are not longer determinatie and, consequently. they shall not be opened and counted. 260 NLRB No. 17 tion of continued eligibility for Bowman as an eco- nomic striker. Bowman not only moved 50 miles away from St. Joseph but moved with her family. While the record is silent as to the nature of Bow- man's family obligation or the reason for the move, the fact that she moved with her family coupled with the distance involved, indicates that the move was intended to be permanent. In this regard, since the move was made 2 months prior to her applying for the Sears job it is evident that the move was not made temporarily to enable her to take that job. In these circumstances, it is highly unlikely that she would commute daily 50 miles each way to return to her former position with the Employ- er. Therefore, we conclude that the evidence suf- fices to warrant a finding that she abandoned her job with Belt.3 Accordingly we shall sustain the challenge to Bowman's ballot. 4 2. The Hearing Officer also overruled the Em- ployer's challenge to the ballot of Raymond Dilts. The Employer excepts contending that Dilts re- tired and thereby abandoned his job with Belt. We find merit in this exception. The strike commenced on November 19, 1979. On that day Dilts stated he was going to retire. On November 27, 1979, Dilts applied for benefits under the Union's pension plan. The application form includes the statement, "I intend to retire from active employment within the bargaining unit covered by the Pension Plan .... " On December 6, 1979, Dilts was informed by the administrator of the plan that he would begin receiving monthly payments from the pension plan. The letter also in- cluded a statement that should he resume employ- ment with an employer covered by the plan, no pension payments would be made until Dilts subse- quently retired. At no time did Dilts cross the picket line. In April 1980 Dilts carried a picket sign at the Employer's facility. Dilts' retirement status is inconsistent with con- tinued interest in employment with the Employer. When an employee retires he severs his employ- ment with his employer. Certainly in the absence of a strike a retired individual would not be regard- ed as an employee and would be ineligible to vote. Of course, in a strike situation there is the possibil- ity that following the strike a retired employee may apply for reinstatement to active status and the Employer may decide to act favorably on the :' See Akron Engraving Company. Inc., 170 NLRB 232 (1968) (Perkins and McGuire) 4 In view of this colnclus.ion we find it unnecessary to pass on the Em- ployer's crontention that its challenge to her ballot should be Sustained be- cause she engaged in strike misconduct Nor do ye need to pass on the Hearing Officer's ruling in this connection that the issue of Bowman's strike nmiconlduct cannot he litigated in a representation proceeding silnce it is potreniially an unfair labor practice issue. 118 BELT SUPERMARKET application. That possibility, however, simply places the retired employee in essentially the same position as any applicant for employment insofar as consideration of his status as an eligible voter is concerned. In other words, for that purpose he is to be treated as a new employee. There is evidence, however, that several months into the strike, in April 1980, Dilts did participate in the picketing. Obviously this picketing indicates some interest in what is happening with respect to the strike and constitutes an expression of support for the striking employees. But that is not to say that it evinces an intention to return to work after the strike is ended. For whatever the reason, a re- tired employee, indeed everyone in the public at large, is free to support the strike in this manner. In any event, in the absence of evidence that Dilts had changed his mind about retirement, his picket- ing does not undermine our finding that by retiring Dilts had quit his active employment with the Em- ployer and is therefore ineligible to vote. Accordingly, we shall sustain the challenge to Dilts' ballot. Since we are sustaining the challenges to the bal- lots of Bowman and Dilts and since the remaining challenged ballots are not sufficient in number to affect the results of the election,5 we shall certify the results. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Retail Store Employ- ees Union Local No. 782, affiliated with United Food and Commercial Workers, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. I In view of our determination that the challenges to the ballots of Rowman and Dills should he sustained we find it unnecessary to pass on the challenges to the ballots (of T im King and Richard Shelton since these hallots are not sufficient in number to affect the results of the elec- tion. I119