Ms. Desserts, Inc.

236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ms. Desserts, Inc. and Warehouse Employees, Dairy, Bakery, Soft Drinks, Laundry, Linen, General Sales Drivers and Allied Employees, Local Union 570, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO' Petitioner. Case 5-RC-13317 July 30, 1990 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held January 16, 1990, 2 and the Regional Director's report recommending dis- position of them The election was conducted pur- suant to a Stipulated Election Agreement The tally of ballots shows 27 for and 26 against the Pe- titioner, with 2 challenged ballots The Board has reviewed the record in light of the exceptions and brief and adopts the Regional Director's findings and recommendations 3 Employee Acie Lyons was discharged by the Employer on January 2 4 He filed an unfair labor practice charge with the Board on January 3, 5 and filed a gnevance protesting his discharge on Janu- ary 4, pursuant to the Employer's unilaterally es- tablished grievance and arbitration procedure Lyons attached to the grievance form a letter stat- ing in part, "I know with continuing training and good communication with others, I would be an asse[t] to the company in more ways than one" As we have noted, the election was held on Jan- uary 16 Lyons' ballot was challenged by the Em- ployer on the basis of his discharge On February 2, Lyons filed a written request for arbitration of his grievance In his request, Lyons sought as a remedy only backpay from the date of his discharge, and "good references" He did not request to be reinstated After a heanng on Febru- ary 27, the arbitrator found that Lyons had been unjustly discharged because the Employer had failed to follow its own progressive discipline pro- ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 All dates are in 1990 'One ballot was challenged because the voter had written "no" in the box on the ballot labeled "NO" The Regional Director found that that ballot was valid and should be counted as a • NO' vote No exceptions were filed to that finding Accordingly, we adopt the Regional Director's recommendation that that vote should be counted as a "NO" vote 4 According to the Employer, Lyons (who was a maintenance mechan- ic) was discharged for unsatisfactory performance and because of im- proved maintenance staffing a The charge was dismissed on March 28 Lyons did not appeal the dismissal cedure The arbitrator awarded full backpay from the date of the discharge to the date of the hearing, but stated that Lyons had not sought, and the award did not include, reinstatement The arbitra- tor specifically did not reach the issues raised in Lyons' then-pending charge with the Board The Regional Director recommended that the challenge to Lyons' ballot be overruled He rea- soned that, under Pacific Tile & Porcelain Go, 137 NLRB 1358, 1365 (1962), and Paul J Monohon As- sociates, 213 NLRB 121 (1974), Lyons had pre- served his nght to cast a challenged ballot by filing a gnevance protesting his discharge He also found that, because the arbitrator had found that Lyons was unjustly discharged and was entitled to full backpay, and because Lyons had not waived rein- statement or otherwise abandoned his job before the election, Lyons was still an employee entitled to vote on the day of the election The Employer excepts to the Regional Direc- tor's finding that Lyons was an employee on the day of the election It contends that Pacific Tile and Paul J Monohon are inapposite because neither of those cases involved an individual whose grievance had been decided, but who, like Lyons, had not been ordered reinstated 6 Because Lyons was not reinstated and was not working on the day of the election, the Employer argues that he was not eli- gible to vote We find no merit in this contention The Board has long held that, to be eligible to vote, an individual must be employed and working in the voting unit on the eligibility date and on the date of the election, unless absent for one of the reasons set out in the direction of election Spray Sales & Sierra Rollers, 225 NLRB 1089 (1976) In Pacific Tile and Monohon, however, the Board cre- ated an exception for individuals who have been discharged from their unit jobs before the election and who have challenged their discharges in grievance/arbitration proceedings 7 In Monohon, as 2 In Pacific Tile, the Board deferred ruling on challenges to the ballots of two individuals whose terminations before the election were the sub- jects of grievances that were pending at the time of the Board's decision The Board stated that "A grievance determination favorable to the union's position in cases of this type will result in a holding that the dis- puted men were employees on the critical dates, while a contrary deter- mination will result in a finding that they were not" 137 NLRB at i365- i366 In Monohon, a discharged individual had been ordered reinstated by an arbdral committee The Board found that, although the employer had not complied with the arbitral award, the individual's ballot should be counted 213 NLRB 121 7 There is language in Pacific Tile that distinguishes that case from those in which unfair labor practice charges have been filed and dis- missed It could be argued, then, that Pacific Tile does not apply in this case, in which Lyons' charge was dismissed as lacking in merit We reject that interpretation In ruling that a pending grievance would enable a discharged employee to vote a challenged ballot, the Board in Pacific Tile observed "The fact that the eligibility of individuals may turn on some question other than an employer's alleged unfair labor practices Continued 299 NLRB No 24 MS DESSERTS, INC 237 we have noted, the Board found an individual eligi- ble to vote who had grieved his preelection dis- charge and had been ordered reinstated 8 Contrary to the Employer, we reach the same result here even though Lyons was not ordered reinstated 9 The arbitrator found that Lyons had been im- properly discharged and ordered that he receive backpay from the date of the discharge to the date of the arbitration hearing It appears that the sole reason the arbitrator did not order Lyons' rein- statement was that Lyons did not request it The Employer does not argue, and the record does not indicate, that the arbitrator lacked the authonty to order Lyons' reinstatement, or that there was no job for Lyons to return to In any event, signifi- cantly, there is no evidence that Lyons had aban- doned interest in returning to work for the Em- ployer at any time before February 2, when he filed for arbitration To the contrary, as the Re- gional Director noted, when Lyons filed his gnev- ance on January 4 he also wrote "I know with continuing training and good communication with others, I would be an asse[t] to the company in more ways than one" There is nothing in that statement to indicate that Lyons was not interested in returning to work for the Employer The Board in Pacific Tile held that the party challenging the vote of an economic stnker must show affirmatively and by objective evidence that the striker has abandoned interest in the struck job " 137 NLRB at 1359 In Monohon, the Board found that principle equally applicable to dis- charged persons whose discharges have been con- tested in gnevance/arbitration proceedings 213 NLRB 121 fn 1 The Employer has not met that is immaterial The sole Issue is whether the individuals were employees within the unit on the critical dates 137 NLRB at 1365-1366 That ra- tionale is equally applicable whether a charge has been filed with the Board and dismissed, or whether no charge has been filed at all Consistent with that rationale, the Board applied Pacific Tile in a case involving the issue of the eligibility of nine individuals, where a com- plaint alleging that those individuals had been denied employment in vio- lation of the Age Discnmmation in Employment Act of 1967 had been filed and was pending before the Department of Labor Advance Industri- al Security, 217 NLRB 17 (1975) It did so even though a charge alleging a violation of Sec 8(a)(5), involving the question whether the alleged chs- cnnunatees should have been counted toward the union's majonty status, had been dismissed under Sec 10(b) Here, likewise, we find Pacific Tile applicable even though Lyons charge was dismissed 9 Similarly, a discharged individual may vote subject to challenge if the discharge is the subject of a pending Board charge, if the discharge is found to have been unlawful, the individual's ballot is counted See, e g, Roma! Iron Works Corp. 285 NLRB 1178, 1185 (1987) 9 Indeed, the Board in Pacific Tile did not limit its holding to situations in which reinstatement is ordered As we have noted, the Board said that "A grievance determination favorable to the union's position will result in a holding that the disputed men were employees on the critical dates" That statement implicitly Includes situations such as this, in which the individual is not ordered reinstated 1 ° The individual is eligible to vote unless he or she has abandoned the job on or before the date of the election A change of attitude that comes after the election is immaterial to the question of the individual's eligibil- ity See, e g, Q-T Tool Co, 199 NLRB 500, 501 (1972) burden in this case It has failed to adduce any evi- dence that Lyons had abandoned interest in rein- statement on or before the January 16 election That Lyons did not request reinstatement from the arbitrator on February 2 is immatenal, Lyons' state of mind more than 2 weeks after the election is not probative of his intentions regarding reinstatement at the time of the election ii The Employer also contends that the Regional Director erred in "deferring" to its gnevance/- arbitration procedure because that procedure was unilaterally implemented rather than being a prod- uct of collective bargaining We find this conten- tion lacking in ment To begin with, the Regional Director did not "defer" to the arbitral procedure in the sense that the Board defers to arbitration in unfair labor practice cases 12 No alleged unfair labor practice is at issue here The only issue to be decided by the arbitrator was whether Lyons' dis- charge comported with the Employer's own proce- dures Although the arbitrator was appointed pur- suant to a procedure that had been unilaterally im- plemented by the Employer, the parties submitted to the procedure voluntarily, the arbitrator found the discharge to have been unjust, and the parties complied with the arbitrator's ruling Under these circumstances, we are not persuaded that the Em- ployer's unilateral implementation of the grievance and arbitration procedures should result in a differ- ent conclusion regarding Lyons' status from that which we would reach if the procedures had been the product of bilateral negotiations Finally, the Employer argues that, even if Pacific Tile and Monohon are applicable, the Regional Di- rector nonetheless erred in failing to direct a hear- ing at which Lyons' state of mind on February 16 could be determined It contends that although there is no evidence that Lyons had changed his mind concerning reinstatement by the date of the election, neither is there evidence that he had not changed his mind by that date There is no ment in this argument The Petitioner does not have the burden of proving that Lyons had not abandoned his job by the date of the election The Employer, as the party asserting Lyons' ineligibility, has the burden of affirmatively showing, by objective evi- dence, that he had abandoned the job by that time 1 3 There is no evidence that Lyons ceased to desire reinstatement before the election, and the Employer has not offered to produce any It argues only that if a heanng had been held, Lyons could have testified and other relevant evidence could " Q-T Tool Co, supra is E g, Spielberg Mfg Co, 112 NLRB 1080 (1955), Collyer Insulated Wire, 192 NLRB 837 (1971) '' Monohon, supra at fn 1 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been presented Such a speculative contention does not raise "substantial and material factual issues" requiring a hearmg 14 ' 4 See Sec 102 69(d) and (f) of the Board's Rules and Regulations NLRB v Connecticut Foundry Co, 688 F 2d 871 (2d Cir 1982), cited by the Employer, actually supports our finding that no hearing is neces- sary here In that case, the court held that A party is entitled to have a hearing only if it demonstrates by prima facie evidence the existence of "substantial and material factual Issues" which, if resolved in its favor, would require the setting aside of the representation election [Citations omitted ] Id at 877 There the court found that a hearing was required to deter- mine the eligibility of strikers who were receiving unemployment com- pensation, because state law allowed the payment of such benefits to per- sons unemployed as a result of a strike only if they were not directly In- terested in the strike The court found that the strikers' receipt of benefits under such a statute was sufficient to place in issue their continued Inter- est in their jobs Id at 876-877 However, the court approved the Board's decision not to order a hearing in the case of a striker who, ac- cording to hearsay testimony, had applied for Social Security disability benefits Given other evidence indicating the individual's desire to return to work, the court found the hearsay evidence of his mere application for disability benefits insufficient to create a factual Issue requiring a hearing Id at 878 In summary, we find, in agreement with the Re- gional Director, that Acie Lyons was an employee in the voting unit on the date of the election, and that the Employer's challenge to his ballot must be overruled Accordingly, we shall direct the Re- gional Director to open and count his ballot DIRECTION The Regional Director is directed to open and count the ballot of Acie Lyons, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification Similarly, the Employer has presented no evidence, prima facie or oth- erwise, that indicates in any fashion that Lyons had abandoned Interest in reemployment on or before the date of the election Indeed, the only evi- dence of Lyons' intentions during the preelection period points to the op- posite conclusion The Employer is not entitled to a hearing merely on the basis that, if one were held, something might turn up that would sup- port its case