Walter Packing, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1979

241 N.L.R.B. 131 (N.L.R.B. 1979)

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 e 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 t 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 cdl ( 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