Great Lakes Carbon Corp.

486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Great Lakes Carbon Corporation and Michael Rogers, Petitioner and Oil, Chemical & Atomic Workers International Union AFL-CIO Local 423, Union. Case 23-RD-589 24 June 1987 DECISION, DIRECTION, AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 2 October 1986 and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 59 for and 59 against the Union, with 21 challenged ballots, a sufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, and adopts the hearing officer's fmdings and recommendations,' except as modified. The hearing officer recommended overruling the challenge to the ballot of Donald Landers. In this connection, she found that: The evidence established that Landers was not in lay-off status as of May 12, 1986, the day the strike began. The fact that had the strike not occurred, Landers would have been laid-off on May 19, 1986 is not the issue, for the May 19, 1986 lay-off did not come to frui- tion. Further, based upon the settlement agree- ment, the Employer returned Landers to work. It would appear that since Landers was never laid-off, when the Employer returned him to work that he reverted to striker status 1 The hearing officer inadvertently °nutted Wiley Lawson's name from the list of those whose challenged ballots she recommended opening and counting. The parties at the hearing stipulated that Lawson was an eligible voter. Accordingly, we shall include his ballot among those to be opened and counted. and thus was eligible to vote in the election. Accordingly, it is concluded that Landers was an eligible voter and entitled to vote in the election. Accordingly, it is recommended that the charge [sic] to his ballot be overruled. The Employer has excepted, inter alia, to the hearing officer's finding and recommendation re- garding Landers. We fmd merit in the exception. As shown above, the hearing officer considered Landers' status to be that of either a laid-off em- ployee or a striker. Based on a postelection settle- ment agreement, the hearing officer further con- cluded that Landers subsequently reverted to strik- er status and should be deemed an eligible voter. We find it unnecessary to reach that issue. Landers name was not included on the eligibility list, and his ballot was challenged because he had been terminated. Absent a determination, e.g., by admission or through resolution in an unfair labor practice proceeding, that his discharge was dis- criminatory, or other agreement by the parties on his eligibility, we must deem Landers to have been lawfully terminated before the election and hence not eligible to vote. As there is no agreement by the parties that Landers was eligible, and neither admission nor a finding that his termination was unlawful, we sustain the challenge to his ballot. DIRECTION IT IS DIRECTED that the Regional Director, within 10 days of the date of this decision, open and count the ballots of Steven Hebert; Richard Theis, and Wiley Lawson; prepare and serve on the parties a revised tally of ballots; and issue the appropriate certification pursuant to the Board's Rules and Regulations. ORDER It is ordered that the matter is referred to the Regional Director for Region 23 for further proc- essing. 284 NLRB No. 65