UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`REGION 2
`
`Petitioner
`
`
`
`Case 02-RD-220036
`
`
`
`
`
`
`CHARTER COMMUNICATIONS (SUCCESSOR
`TO TIME WARNER CABLE OF NYC)
`
`Employer
`
`
`BRUCE CARBERRY
`
`
`
`LOCAL UNION NO. 3, INTERNATIONAL
`BROTHERHOOD OF ELECTRICAL WORKERS
`
`Union
`
`
`and
`
`and
`
`Regional Director’s Second Supplemental Decision on Challenged Ballots
`
`Pursuant to a Decision and Direction of Election that issued on June 18, 2018, and a
`
`Notice and Direction of Election that issued on January 10, 2019, an election by mail ballot
`was conducted in the following unit:
`All field operations, network operations, and warehouse technician employees
`employed by Charter Communications, Inc., (the Employer), at its Bergen
`County, NJ, and Staten Island, Manhattan, Brooklyn, and Queens, NY
`facilities, including Tech 1’s through Tech 5’s, Crew Chiefs, Foremen and
`General Foremen; excluding all other employees, guards, and supervisors as
`defined in the National Labor Relations Act.
`The ballots were mailed to the voters on January 25, 2019, and the ballot count occurred on
`February 25-26, 2019. On February 26, 2019, a tally of ballots was prepared and made
`available to the parties. The tally indicated that 62 ballots were void and the remaining 1601
`ballots cast were challenged, an amount sufficient to affect the results of the election.1
`
`
`1 Prior decisions and the tally of ballots indicated that the total number of challenged ballots
`was 1601. However, 2 additional ballots were deemed void by the Region and therefore not
`
`
`

`

`The Union challenged 933 ballots on the basis that they were cast by temporary
`replacement employees. The Union also challenged 20 of those ballots on the additional basis
`that the voter printed, rather than signed their name. The Employer challenged 666 ballots on
`the basis that they were cast by permanently replaced strikers. The Employer also challenged
`15 of those ballots on the additional basis that the voter printed rather than signed their name,
`1 on the additional basis that the ballot was not signed at all, and 126 on the additional basis
`that they were cast by strikers that were not employed on the eligibility date.2
`
`On April 17, 2019, I issued an Interim Report on Determinative Challenged Ballots
`and Order Directing Opening and Counting of Challenged Ballots (herein, Interim Report). I
`overruled a portion of the Union’s challenged ballots, finding that they were not cast by
`temporary employees but by strikers who returned to work before the January 3, 2019 payroll
`eligibility date (herein, cross-overs). I ordered those ballots to be open and counted.3
`
`On August 5, 2019, I issued a Supplemental Decision on Challenges and Objections
`(herein, Supplemental Decision) to administratively resolve the outstanding challenges. I
`sustained the Union’s challenge to 20 ballots as void on the basis that they contained a printed
`
`
`counted on the final challenged ballot lists provided to the parties. See ER Exh. 23. The prior
`decisions correctly noted that the Union challenged 933 ballots and the Employer challenged
`666 ballots (662 of which were also challenged by the Petitioner). Therefore, the final number
`of determinative challenged ballots is 1599.
`2 Both parties also challenged a number of ballots on the additional grounds that they arrived
`late. The ballots arrived at the Regional office after the return date in the Notice of Election
`but before the ballot count.
`3 The Interim Report inadvertently listed only 325 names due to a printing error. No party filed
`a request for review of the determination that 332 cross-overs were eligible to vote or to the
`Interim Report’s failure to include the following 7 names:
`1. Cadichon, Yonel
`2. Eugene, Mario
`3. Hudson, Darryl
`4. Meighan, Enrico
`5. Pena, Steven
`6. Rothwell, David
`7. Vukovic, Aleksander
`The full list of 332 cross-overs that includes the above-named individuals is attached to this
`decision as Appendix A.
`
`2
`
`

`

`name rather than the required signature.4 I found that the remaining employees challenged by
`the Union as temporary replacements were permanent replacements and eligible to vote. I
`ordered their ballots to be opened and counted.5 I sustained the Employer’s challenges to 15
`ballots as void on the basis that they contained a printed name rather than the required
`signature. I sustained the Employer’s remaining challenges on the grounds that they were cast
`by economic strikers who were permanently replaced. I also sustained the Employer’s
`challenge to 117 of those ballots on the additional grounds that they were cast by employees
`that were not employed on the eligibility date.6
`
`The Union filed a timely request for review of the Supplemental Decision with the
`Board. On March 19, 2020, the Board issued an order granting the Union’s request for
`
`
`4 Four employees listed as cross-overs in the Interim Report were subsequently deemed void in
`the Supplemental Decision, and their ballots should therefore not be opened and counted:
`1. Fall, Mohamed
`2. Gittens, Osmorn
`3. Gonzalez, Richard
`4. Guthrie, Rhoan
`No party filed a request for review of that determination. In addition, the parties submitted a
`Stipulation accepted into the record as Joint Exhibit 1, in which the parties agreed that Pedro
`Diaz and Steve R. Bishop are also cross-over employees. Jt. Exh. 1, p. 4. I adopt the Hearing
`Officer’s recommendation, to which no party excepted, that the Union’s challenges to these two
`ballots are overruled and their ballots should be opened and counted. Therefore, I now find that
`the total number of ballots cast by cross-over employees to be opened and counted is 330. See
`Appendix B.
`5 The Supplemental Decision mistakenly provided that there were 581 rather than 585
`remaining ballots challenged by the Union. 332 of the Union’s 933 challenges were overruled
`in the Interim Report because they were cast by cross-overs (leaving 601 remaining challenges).
`While 20 ballots were deemed void in the Supplemental Decision, 4 of those ballots were cast
`by cross-overs and therefore do not affect the number of remaining challenges (585). With the
`two additional challenges resolved in Joint Exhibit 1, the Union’s total number of remaining
`challenges is now 583.
`6 I also overruled both parties’ challenges to ballots that arrived late as they were received by
`the Regional office before the ballot count. See Kerrvlle Bus Co., 257 NLRB 176 (1981):
`Premiere Utility Services, LLC, 363 NLRB No. 169 (2016). Regarding the objections, I
`overruled Union Objections 6-8 and directed a hearing on Union Objections 1-5 if the Union
`does not obtain a majority of the valid votes cast. If Objections 1-5 are ultimately overruled, I
`held that I would consolidate Objections 9 and 10 with the Complaint in Case Nos. 02-CA-
`220539 and 02-CA-223159.
`
`3
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`

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`review.7 The Board remanded certain matters for further proceedings, including a hearing if
`warranted. First, the Board ordered me to consider evidence on and analyze whether the
`replacement employees challenged by the Union were temporary or permanent under O.E.
`Butterfield, Inc., including whether all the strikers had been permanently replaced. 319
`NLRB 1004 (1995). Second, the Board ordered me to consider whether the Employer
`established that it permanently eliminated approximately 300 positions for reasons not
`predicated wholly on considerations following from the strike itself. See Lamb-Grays Harbor
`Co., 295 NLRB 355, 357 (1989). And, if the positions have not been permanently eliminated,
`whether any of the challenged strikers held these now-vacant positions when the strike
`commenced and thereby retain their eligibility to vote. Third, the Board ordered me to
`consider whether the Employer met its burden of proving, through objective evidence, that
`any of the strikers voluntarily separated from their employment and are therefore ineligible to
`vote. See Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359 (1962).8
`
`Thereafter, I issued an Order Directing Hearing on Remand and Notice of Hearing.
`Bd Exh. 1(c). Pursuant to that order, a hearing was held before a Hearing Officer on
`September 21-24, 2020. On October 19, 2020, the Hearing Officer issued a report (herein
`Hearing Officer’s Report) in which she recommended the majority of the Union’s challenges
`be overruled because the Employer met its burden of proving that these ballots were cast by
`permanent replacements. She recommended the remaining Union challenges be sustained.
`Further, she found that three positions were permanently eliminated and recommended that I
`sustain the Employer’s challenges to these ballots. She recommended that the remaining
`Employer challenges to ballots cast by striking employees be overruled. Finally, she
`approved a joint stipulation and recommended resolution of certain challenged ballots based
`on that agreement between the parties. Joint Exh. 1.
`
`
`7 No party requested review of my ruling regarding the ballots deemed void because they either
`lacked a signature or the voter printed, rather than signed their name. No party requested review
`of my ruling that ballots arriving after the cutoff date in the Notice of Election but before the
`ballot count are not void on that basis.
`8 The Board also reinstated Objection 6 and directed me to hold it in abeyance pending
`resolution of the challenges and if necessary, to consider it with Objections 1-5.
`
`4
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`The Employer filed timely exceptions to the Hearing Officer’s findings and
`
`recommendations. The Union filed an answering brief urging me to adopt the Hearing
`Officer’s Report in its entirety.
`
`I have carefully reviewed the Hearing Officer’s rulings. I find that they are free from
`prejudicial error, and are hereby affirmed. I also adopt her recommendations, except as
`modified below.9 In considering the Employer’s exceptions and the parties briefs, I rely on
`the Hearing Officer’s finding of fact and recommendations for the reasons discussed below.
`
`
`Voluntary Separations
`
`Economic strikers may be ineligible to vote if, prior to the election, the employee
`obtains permanent employment elsewhere. Lamb-Grays, 295 NLRB at 357. The Employer
`challenged 126 ballots on the basis that they were not employed on the eligibility date because
`they voluntarily separated from employment.10 The parties submitted a stipulation, accepted
`into the record as Joint Exhibit 1, intended to resolve this issue. See Jt. Exh. 1.
`First, the parties agreed to sustain the Employer and Petitioner’s challenges to the
`ballots of the 101 individuals listed in Employer Exhibit 7 and Christopher Williamson. Jt.
`Exh. 1, p. 1. I therefore partially adopt the hearing officer’s recommendation and sustain the
`Employer’s challenges to the ballots cast by the voters listed in Appendix C.11 These ballots
`will not be opened and counted.12
`
`
`9 I find merit or partial merit to Employer Exceptions 1, 28, 41, 43-51 and 53-54, as discussed
`below.
`10 While prior decisions refer to 117 ballots, the original list of Employer challenges contains
`117 typed challenges and an additional 9 handwritten challenges, for a total of 126 ballots
`challenged by the Employer as having been cast by strikers no longer employed on the
`eligibility date. See ER Exh. 23.
`11 The parties and the Hearing Officer agreed to sustain the Employer’s challenge to the ballot
`of Fitzgerald Boyce, but there is no corresponding ballot challenged by any party. See ER Exh.
`7 and 23; Joint Stipulation; Hearing Officer’s Report. However, if this is a clerical error and a
`ballot was cast by Boyce, in view of the parties’ agreement, I will sustain the challenge to his
`ballot, and, if cast, his ballot will not be opened and counted.
`12 Three individuals listed in Employer Exhibit 7 cast ballots previously deemed to be void in
`the Supplemental Decision and their ballots should not be opened and counted on that basis as
`well:
`1. Cooper, Michael
`2. Marin, Jorge
`
`
`
`5
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`Second, Paragraph 2(a) of Joint Exhibit 1 provides that the ballots of 14 individuals
`are no longer challenged by the Employer and Petitioner as having resigned from
`employment, though all other grounds for challenge remain.13 Paragraph 2(b) provides that
`the ballot of 1 individual challenged by the Employer, Petitioner, and Board agent, shall be
`addressed in the hearing only as a permanently replaced striker.14 See also ER Exh. 23. I
`therefore reserve ruling on the status of these 15 ballots until they are discussed below.
`Finally, the parties’ stipulation addresses whether 113 ballots on the typed Employer
`challenge list and 3 ballots on the handwritten Employer challenge list voluntarily separated
`from employment. As the Employer did not put on any evidence regarding whether the
`remaining 10 employees voluntarily separated from their employment, I must overrule the
`Employer’s challenges on that basis.15 This ruling does not affect the Employer’s challenge
`
`
`
`3. Singleton, Willie
`Therefore, the total number of ballots addressed by Paragraph 1 is 98 and the remaining number
`of Employer challenges is 553.
`13 Those employees are:
`1. Armstrong, Brian
`2. Campbell, Anthony
`3. Carranza, Thomas
`4. Delgrosso, Michael
`5. Esson, Villiston
`6. Foggie, Kenneth
`7. Glessing, Leonard
`8. Lombardi, Jay
`9. Melendez, Juan [M.]
`10. Mossa, Joseph
`11. Musa, Andrew
`12. Nepomnyashechyi, Alexander
`13. Ramirez, Rafael
`14. Suazo, Johnny
`14 That Employee is: Jessica Rosado Benford.
`15: Those employees are:
`1. Caldwell, Joseph
`2. Cameron, Marlon
`3. Cuyuch, Kelby
`4. Douglas, Christian
`5. Gordon, Randy
`6. King, Damani
`7. Mancino, Santo
`8. Martinez, Julio
`
`
`
`6
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`to the same individuals on other grounds and I therefore reserve ruling on whether these
`ballots should be opened and counted until discussed further below.
`
`The Union’s Challenges to Replacement Employees
`The Union’s remaining challenges are to 583 ballots cast by replacement employees.
`In all cases, the Board presumes that replacements for economic strikers are temporary
`employees. O.E. Butterfield, Inc., 319 NLRB at 1006. The burden is on the employer to
`prove that strike replacements are permanent employees because the employer is the party
`with superior access to the relevant information. Id; see also United Site Services of
`California, Inc., 369 NLRB No. 137, slip op. at 3 (2020); Consolidated Delivery & Logistics,
`Inc., 337 NLRB 524, 526 (2002). To meet this burden, the employer must show a mutual
`understanding between itself and the replacements that they are permanent. United Site
`Services, 369 NLRB No. 137, slip op. at 3 (internal citations omitted); Consolidated Delivery
`& Logistics, 337 NLRB at 526 (employer must establish that replacements were hired in a
`manner that would show both parties regarded the job as permanent). The employer’s own
`intent to employ a replacement as permanent is insufficient. Consolidated Logistics, 337
`NLRB at 526; Hansen Bros. Enterprises, 279 NLRB 741, 741-42 (1986). Rather, it is
`incumbent upon the employer to clearly communicate that intent to employees. O.E.
`Butterfield, Inc., 319 NLRB at 1006, United Site Services, 369 NLRB No. 137, slip op at 3
`(employers must present specific evidence of the replacements’ hiring that shows the
`replacement believed they received the job on a permanent basis); Assoc. Grocers, 253 NLRB
`31, 32 (1980) (employer intent to hire as permanent insufficient to satisfy burden); Covington
`Furniture Mfg. Corp., 212 NLRB 214, 220 (1974) (The employer must present evidence that
`its “hiring offer includes a commitment that the replacement position is permanent”); Assoc.
`Grocers, 253 NLRB at 31-32 (employer established mutual understanding with a group of
`replacements through signed letters stating that their positions were permanent).
`
`I affirm the Hearing Officer’s ruling, to which no party excepted, that the Employer
`met its burden of proving that the 525 voters listed in Appendix D and the 20 voters listed in
`
`
`
`9. Watson, Francis
`10. Zacarias, Sayid
`See Pacific Tile & Porcelain Co., 137 NLRB 1358, 1359 (1962).
`
`7
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`

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`Appendix E are permanent replacements, and order their ballots to be opened and counted.
`For each of these employees, the Employer produced one or more documents showing that it
`clearly communicated its intent to hire the employee on a permanent basis. For the
`employees listed in Appendix D the Employer provided offer letters that state, in part, “You
`are being employed by Charter as a permanent employee.” See ER Exh. 1(a) (offer letters
`signed by employees) and 1(b) (offer letters not signed by employees), herein, collectively,
`Permanent Replacement Letters.16 For the employees listed in Appendix E, the Employer
`
`
`16 Employer Exhibits 1(a) and 1(b) contain 540 letters total and I find that all 540 employees
`are permanent replacements. However, thirteen of the letters contained in Employer Exhibit
`1(a) and one letter contained in Employer Exhibit 1(b) were given to employees whose votes
`were deemed void in the Supplemental Decision. Therefore, the following employees’ ballots
`should not be opened and counted:
`1. Abdelmontaser, Mohamed K.
`2. Aguilera, Jose E.
`3. Aguilera, Luis
`4. Anderson, Ravindra
`5. Balgobin, Dean
`6. Barrett, Raymond A.
`7. Batts, Veronica E.
`8. Brown, Jevaughn A. (whose name was inadvertently spelled “Brows” in the
`Supplemental Decision)
`9. Cummings, Clemrick C.
`10. Dalberis, Kinsky
`11. Emmanual, Kervin B.
`12. Fagon, Dewyane S.
`13. Johnson, Brady
`14. Perez Aponte, Robert P.
`
`
`The Hearing Officer’s Report erroneously stated that one letter contained in Employer Exhibit
`1(a) was given to cross-over employee Warren Gaskins, deemed eligible to vote in the Interim
`Report. Hearing Officer’s Report, pg. 4, fn 8. However, the letter in Employer Exhibit 1(a)
`was given to a different individual, Warren Gaskins, Jr. See ER Exh. 1(a), ER Exh. 18, ER Exh.
`19. The challenge to Warren Gaskins is overruled because he is a cross-over. ER Exh. 19,
`Interim Report. The challenge to Warren Gaskins Jr. is overruled because he is a permanent
`replacement. ER Exh. 1(a), Appendix D. For these reasons, both ballots should be opened and
`counted.
`I affirm the Hearing Officer’s ruling that the ballot of Mitchel Clerville is void because it was
`not signed, as required. See ER Exh 23. No party excepted to this decision. Therefore, while
`I find that Clerville is a permanent replacement, his ballot should not be opened and counted.
`ER Exh. 1(a).
`
`
`8
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`

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`produced an email it sent to their Employer-provided email addresses that stated, in part,
`“What doesn’t change is the commitment we made when we hired you: your position is
`permanent and you will not be displaced by returning employees” (herein, Permanent
`Replacement Email).17 See ER Exh. 4. Thus, a mutual understanding that these 545
`employees were employed on a permanent basis was established.18
`
`I also affirm the Hearing Officer’s ruling that the Union’s challenges to the ballots of
`the employees listed in the Hearing Officer’s Report Appendix E are sustained, with the
`exception of Henry Castillo, Robinson Rodriguez, and Mitchell Wright, discussed supra, and
`Venus Torres, who was previously determined to be a cross-over employee in the Interim
`Report.19 I further find that the Union’s challenge to the ballot of Fernando Logrono is
`sustained. The full list of 35 sustained challenged ballots is attached hereto as Appendix G.
`For these 35 employees, the Employer did not produce any probative evidence that it clearly
`communicated—either verbally or in writing—that their jobs were permanent.
`
`
`Finally, identical letters were produced for employees with bargaining unit titles in Employer
`Exhibits 2(a) and 2(b). Therefore, I find merit to Employer Exception 1 and find that the
`employees listed in Appendix F are also permanent replacements. However, the majority of
`these employees did not vote in the election and are therefore not challenged by the Union, with
`the exception of David F. Sanchez, Henry Castillo, Robinson Rodriguez, and Mitchell Wright.
`Tr. 166-69. These individuals are listed with the Union challenges, but their Permanent
`Replacement Letters are included with replacements that the parties’ agreed did not vote. See
`ER Exhs. 2(a) and 23, Tr. 166-69. I find that all four are permanent replacements. If there are
`corresponding ballots, the challenges are overruled, and the ballots should be opened and
`counted.
`17 The Permanent Replacement Email establishes that the Employer clearly communicated to
`recipients that their jobs were permanent on the date it was sent—July 10, 2017—not that it
`was communicated on the date of hire. See Tr. 171-74.
`18 I do not find that every employee that received the Permanent Replacement Email is a
`permanent replacement for a bargaining unit employee, only those who actually voted in the
`election. Out of 396 alleged non-managerial employees who received the Permanent
`Replacement Email, 149 were not also included in Employer Exhibits 1(a)-2(b). However, the
`same 149 employees were also not included on the Voter List or payroll records from 2019 (i.e.
`Carly A. Abreu). ER Exhs. 4, 17-18. Additionally, the email addresses do not indicate the job
`titles of any employee to indicate whether they held a bargaining unit position. Therefore, the
`Employer has not met its burden to establish that the 149 non-voters in Exhibit 4 were
`permanent replacements for bargaining unit employees on the eligibility date.
`19 As she is a cross-over employee, the ballot of Venus Torres should be opened and counted.
`Wahl Clipper Corp., 195 NLRB 634, 636 (1962).
`
`9
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`

`

`First, the Employer did not produce a Permanent Replacement Letter for any of the 35
`
`employees listed in Appendix G and the record does not show that they were informed of its
`contents in another manner.20 See ER Exh. 1(a); ER Exh. 1(b). While former Recruitment
`Manager Yabre Kompaore testified that she read the Permanent Replacement Letter out loud
`during every new-hire orientation she personally conducted, she did not conduct every
`orientation and did not testify about which specific employees attended her sessions. Tr. 155-
`160. The Employer did not produce Kompaore’s attendee list or attendance logs, and no other
`members of Kompaore’s team testified regarding their usual practice at new-hire
`orientation.21 Tr. 155-56. Therefore, it is unclear from the record whether any of the
`employees in Appendix G were at a session where the Permanent Replacement Letter was
`read.
`
`Even if the Employer had established that the Permanent Replacement Letter was read
`at every new-hire orientation, the Employer failed to prove that the 35 employees listed in
`Appendix G ever attended a session. No documents were produced linking an employee to a
`new-hire orientation, though Kompaore indicated that such documents (in addition to the
`Permanent Replacement Letters) should exist. For example, once an employee is cleared for
`hire, the recruitment coordinator sends them an email with details about their new-hire
`orientation. Tr. 154. The Employer did not produce these emails. Additionally, though
`Kompaore testified that permanent employees cannot be hired without attending new-hire
`orientation, this does not prove that the 35 employees in Appendix G are permanent—only
`that if they were permanent, they would have attended a session. Tr. 160; Tr. 140 (temporary
`employees handled by different department).
`
`
`20 Kompaore testified that the Permanent Replacement Letters that were unsigned were still
`uploaded into the employee’s electronic file “so that we have it on record that we did generate
`a letter for them.” Tr. 160-61 Though asked, Kompaore did not testify about what happened
`when letters were allegedly “misplaced.” Tr. 160-61.
`21 It is clear from the record that while Kompaore may have instructed her team how to run
`new-hire orientations, not every recruiter operated in the same manner. Tr. 159. For example,
`Kompaore testified that she ensured that each employee signed their Permanent Replacement
`Letter one by one, but other recruiters would just have the employees pass their letters back in
`a group without checking for signatures. Tr. 162. So while Kompaore may have instructed
`recruiters to review the Permanent Replacement Letters, this is not evidence that they did so.
`Tr. 160.
`
`10
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`

`

`The Employer also did not produce a Permanent Replacement Email for the 35
`employees in Appendix G. ER Exh. 4. The only letter to these individuals in the record are
`their offer letters. ER Exh. 3. These offer letters do not state that the employee is being hired
`on a permanent basis. Id. Rather, the letters state basic terms of employment, including that
`the employee will be represented by the Union.22 Id. The Employer failed to produce
`evidence showing that employees understood their status as a bargaining unit member meant
`that their employment was permanent. Similarly, while the Employer may only offer benefits
`to its permanent employees, there is no evidence in the record to support the contention that
`an employee would be aware of that and know it meant their job was permanent. At best, the
`offer letters only establish the Employer’s intent, and that does not satisfy its burden of
`proof.23 Consolidated Logistics, 337 NLRB at 526; Hansen Bros., 279 NLRB at 741-42
`Second, the testimony regarding verbal offers of employment was not sufficiently
`probative to establish the necessary mutual understanding. Kompaore testified that she
`verbally communicated to all candidates during their phone screen interview that they were
`being hired as a permanent replacement and that regardless of the outcome of the strike, they
`would not lose their job. Tr. 144-45. However, this alone does not establish that any
`particular employee, including any employee in Appendix G, was told that their job was
`permanent during their phone screen interview. This is so because Kompaore was not the
`only individual interviewing candidates. Tr. 144-47. It is unclear whether the other members
`of Kompaore’s team similarly informed each candidate that their job was permanent: no other
`member of the team testified and Kompaore did not testify that she was present when another
`member of her team made verbal offers. Neither Kompaore nor the Employer provided a list
`of candidates Kompaore personally interviewed. Moreover, Kompaore testified that three to
`five times per week she handled inquiries from candidates seeking “some assurance that if
`they left their job that they weren’t going to be displaced if the strike ended,” which suggests
`that either Kompaore was not clear with every replacement or that other members of her team
`may not have clearly informed employees that the job was permanent. Tr. 146-47.
`
`
`22 Except Petitioner Bruce Carberry—his offer letter does not state that he will be represented
`by the Union. ER Exh. 3.
`23 Similarly, Kompaore’s testimony that the Employer decided to hire permanent replacements
`does not establish a mutual understanding, only the Employer’s intent. Tr. 141-42, 161.
`
`11
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`

`

`As the Employer has not met its burden to show that all replacement employees were
`permanent replacements, the record also does not establish that all strikers were permanently
`replaced.24
`
`Employer Challenges to Remaining Strikers
`
` There is no dispute that the Employer has operated with fewer bargaining unit
`employees since the strike began. ER Exh. 20; Union Request for Review; Union Answering
`Brief, pg 8; Board Order, pg 2. The Employer contends that any position in the Fulfillment,
`Maintenance, Construction or Warehouse departments not filled by January 3, 2019, has been
`permanently eliminated.25 Therefore, the Employer challenges the ballots of 164 strikers on
`that additional basis.26 See ER Br., pg 4.
`
`Economic strikers may lose their status as employees for voting purposes under
`Section 9(c)(3) of the Act if, prior to the election, the employer eliminates the employee’s
`position for economic reasons not predicated wholly on considerations flowing from the strike
`
`
`24 The total number of permanent replacements across all departments established by the
`evidence is 777. See ER Exh. 1(a) (524 permanent replacements); ER Exh. 1(b) (18 permanent
`replacements); ER Exh. 2(a) (210 permanent replacements); ER Exh. 2(b) (5 permanent
`replacements); ER Exh. 4 (20 permanent replacements). However, I was able to match only 766
`of these permanent replacements with payroll records from the eligibility date. ER Exh. 18.
`Therefore, the proven number of permanent replacements on the eligibility date is 766.
`25 Prior to the hearing, the Employer and Petitioner agreed to withdraw their challenges to the
`strikers in the Dispatch, Design and Drafting, and ISP departments, and to the drivers in the
`Warehouse. See Joint Exh. 1, paragraph 3; ER Exceptions Brief, pg 4 (reaffirming that these
`positions were not permanently eliminated). Therefore, I agree with the Hearing Officer and
`find that the 67 ballots listed in Appendix H should be opened and counted. I also agree with
`the Hearing Officer that the ballots of Melvin Arzu and Franklyn Adams (inadvertently spelled
`“Adamo” in the Hearing Officer’s Report- see ER Exhs. 5, 19, 24) are void because they did
`not sign their ballots as required. Hearing Officer’s Report, fn.1. Additionally, I find that the
`ballot of Morgan Lawrence is void because it contained a printed, rather than signed name as
`required. ER Exh. 23. Accordingly, these three ballots should not be opened and counted.
`Adams’s name was crossed out on the original challenge list and not counted as one of the
`Employer’s 666 challenges. ER Exh. 23. Therefore, voiding his ballot does not affect the
`overall number of Employer challenges remaining (484).
`26 The Employer initially challenged these employees solely on the basis that they were
`permanently replaced or voluntarily separated from employment. Therefore, prior decisions do
`not address whether the Employer permanently eliminated any positions. See Union Request
`for Review; Board Order.
`
`12
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`

`

`itself.27 Lamb-Grays, 295 NLRB at 357. The employer is not required to show that its
`elimination of strikers’ jobs was entirely unrelated to the strike, only that it’s nonstrike-related
`reasons for doing so were substantial, and not frivolous. Id. The Employer must also show
`that the jobs were permanently eliminated. Id. (Employer met burden where decision to close
`plant primarily based on legitimate business concerns, employer notified employees they were
`terminated and took steps consistent with permanent closure); see also Erman Corp., 330
`NLRB 95 (1999) (Employer failed to meet burden where downturn in business was unrelated
`to strike but temporary in nature); Omahaline Hydraulics, 340 NLRB 916 (2003) (Employer
`failed to meet burden where it did not inform Union or strikers of a decision to terminate
`employees, continued to regard strikers as employees, and treated strikers differently than
`previously terminated employees by, inter alia, not providing payment for accrued vacation
`pay or 401(k) information).28
`
`
`27 I find merit to Employer Exceptions 28 and 41 because in a section of the Hearing Officer’s
`Report, the Hearing Officer incorrectly stated the legal standard was “substantial economic
`considerations unrelated to the strike” rather than substantial economic considerations not
`wholly related to the strike. Report, pg. 11-12 (emphasis added). However, I do not find that
`the error was prejudicial because applying the correct standard, the Employer has still not met
`its burden of proof and the outcome remains the same.
`28 In its exceptions and brief, the Employer asserts that the Hearing Officer should have held
`that strikers that do not have a reasonable expectation of recall are not eligible to vote. ER
`Exceptions 6-7, 39. To support its position, the Employer cites to the dissenting opinions in
`Omahaline Hydraulics, 340 NLRB at 319-20 and Erman Corp., 330 NLRB at 95-96. However,
`I am bound by Board precedent and the Board has specifically declined to use that standard.
`Omahaline Hydraulics, 340 NLRB at 918 (Board majority noted that “no reasonable
`expectation of