615 F.2d 661 (5th Cir. 1980), 79-1915, Birmingham Ornamental Iron Co. v. N.L.R.B.

Docket Nº:79-1915.
Citation:615 F.2d 661
Party Name:BIRMINGHAM ORNAMENTAL IRON COMPANY, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
Case Date:April 17, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 661

615 F.2d 661 (5th Cir. 1980)

BIRMINGHAM ORNAMENTAL IRON COMPANY, Petitioner Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 79-1915.

United States Court of Appeals, Fifth Circuit

April 17, 1980

Page 662

Bradley, Arant, Rose & White, Allen Poppleton, Birmingham, Ala., for petitioner cross-respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Michael F. Messite, Atty., NLRB, Washington, D.C., for respondent cross-petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal tests the correctness of an NLRB certification of a bargaining agent. The issue was drawn by the union's filing an unfair labor practice complaint, charging Birmingham Ornamental with violation of §§ 8(a)(5) and (1) of the National Labor Relations Act for refusing to bargain. Two other subsidiary issues are also to be decided: (1) Whether evidence supports the board's determination that a request to bargain was actually sent to the employer; and (2) the validity of a published rule against "any solicitation" on the company's premises.

In July 1977, by stipulation, a valid election was held to determine whether the bargaining unit wished to be represented by the union. The talley showed 134 votes for, 138 against, and seven votes not counted, because they were challenged. The challenge as to six of them was based upon the fact that their names were not on the employer's eligibility list. The challenge as to the seventh was subsequently resolved and is not at issue here. The regional director concluded that these six persons, who had been involved in a reduction in force on June 3, 1977, had a reasonable expectancy at the time of the election of being reemployed with the company in the near future and that they were therefore eligible to vote. Accordingly, the regional director concluded that the seven were eligible voters, and recommended to the board that the challenges to their ballots be overruled.

On August 29, the company filed timely exceptions to the regional director's report on challenged ballots and order. On November 30, 1977, the board having "reviewed the record in the light of the exceptions" adopted the regional director's findings and recommendations, and remanded to the regional director for the purpose of opening and counting the seven challenged ballots. On December 12, 1977, the company filed with the board its motion for reconsideration and other relief requesting the board to direct a hearing to determine whether the six individuals were "terminated" or "laid off" on June 3, 1977, and whether they had a reasonable expectancy of being reemployed. On January 12, 1978, the board denied the company's motion for reconsideration, noting that it contained nothing not previously considered by the board. The challenged ballots were opened and counted and a revised talley showed 140 votes for the union and 139 votes against it. Thereupon, the board certified the union as the exclusive bargaining representative of the company's employees.

The company's principal contention, in defending its actions in refusing to bargain when called to account by the union's unfair labor practice charge is that the regional director resolved two factual issues: (1) whether the employees were "permanently terminated" or were merely "laid off"; (2) whether there was a reasonable likelihood that they would be reemployed within a reasonable time, regardless of whether they were permanently terminated or were merely laid off. The company made the contention that if they were permanently terminated then they could not be considered employees of the company for voting purposes in August 1977, but contended

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also that if this contention was not correct, then there was no basis for the regional director's determination that there was a reasonable likelihood that the six would be rehired.

The regional director's report stated that the evidence before him was to the effect that the six employees had been "terminated" or "laid off" 1 as a part of an economic reduction in force; that none of the employees remember being told anything concerning the duration of the layoff; the company personnel manager stated that employees on layoff are considered for vacancies; that the company had in the past recalled a number of employees from layoff; that the past year's rate of attrition in the particular division averages slightly over two employees per month; that following the June 3 reduction in force, four bargaining unit employees resigned in June and four more in July; and that two of the openings were filled by the recall of Pendleton and Chapple, two of the six persons with whose status we are now concerned. Both of these men were working for the company on the day of the July 13 election.

The district director also determined that the company's history revealed a policy of recalling former employees. In February 1975, during a reduction in force, 39 employees were "terminated." The company's records disclose that 24 of then 39 were rehired by the company. The company's records disclose that these rehires occurred: three within 25 days, eight more within six months, eight more within a year, three more between one and two years, and two more after two years. Sixteen of these rehires returned to their original jobs with the company. Based on these facts, which the director found undisputed on the record before him, he concluded that the separated employees had a...

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