`
`UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`
`Charter Communications (Successor to Time Warner Cable
`of NYC),
`
`-and-
`
`Bruce Carberry,
`
`Employer,
`
`Petitioner,
`
`Case 02-RD-220036
`
`
`-and-
`
`
`Local Union No. 3, International Brotherhood of Electrical
`Workers,
`
`
`Union.
`
`
`
`
`
`
`
`CHARTER COMMUNICATIONS, INC.
`REQUEST FOR REVIEW OF REGIONAL DIRECTOR’S
`SECOND SUPPLEMENTAL DECISION ON CHALLENGED BALLOTS
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`Harlan J. Silverstein
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`
`
`
`G. Peter Clark
`
`
`
`
`Erica E. Frank
`KAUFF MCGUIRE & MARGOLIS LLP
`950 Third Avenue - 14th Floor
`
`
`New York, NY 10022
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`
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`(212) 644-1010
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`
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`
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`4851-8102-8333.1
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`
`Ronald Meisburg
`Kurt G. Larkin
`Reilly C. Moore
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, NW
`Washington, DC 20037
`(202) 955-1500
`
`
`

`

`TABLE OF CONTENTS
`
`
`(b)
`
`2.
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`2.
`
`B.
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`C.
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`D.
`
`E.
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`Page
`INTRODUCTION/REQUEST FOR EXPEDITED REVIEW ................................................ 1
`SUMMARY OF ARGUMENT ................................................................................................... 2
`PROCEDURAL HISTORY ........................................................................................................ 6
`SUMMARY OF UNCONTROVERTED FACTS .................................................................... 9
`A.
`THE PARTIES’ STIPULATION LIMITED THE CONTESTED ISSUES TO
`THE FOUR DISPUTED DEPARTMENTS. ..................................................................... 9
`THE REGIONAL DIRECTOR EXCLUDED CERTAIN CROSS-OVER AND
`PERMANENT REPLACEMENT EMPLOYEES FROM HIS COUNT OF
`OCCUPIED POSITIONS IN THE BARGAINING UNIT. ............................................ 10
`1.
`The Regional Director Excluded 112 Non-Voting Cross-Overs From His
`Count of Occupied Unit Positions in the Disputed Departments. ....................... 10
`The Regional Director Excluded 45 Permanent Replacements From His
`Count of Occupied Unit Positions in the Disputed Departments. ....................... 11
`(a)
`13 Excluded Permanent Replacements Received Written Notice of
`Permanent Replacement Status and Were on the Eligibility List. ........... 11
`32 Permanent Replacements Were Excluded Despite Being
`Informed They Were Being Hired Into Permanent Unit Positions. ......... 12
`THE MAXIMUM NUMBER OF VACANCIES IN THE DISPUTED
`DEPARTMENTS IS 260. ................................................................................................ 13
`CHARTER IMPLEMENTED SIGNIFICANT AND PERMANENT
`INFRASTRUCTURE, TECHNOLOGY AND OPERATIONAL CHANGES TO
`ITS BUSINESS. ............................................................................................................... 15
`1.
`Permanent Infrastructure and Technology Upgrades .......................................... 15
`2.
`Permanent Operational Changes .......................................................................... 16
`ALL OF THE UNFILLED POSITIONS WERE PERMANENTLY
`ELIMINATED. ................................................................................................................ 16
`DISCUSSION ............................................................................................................................. 19
`A.
`THE REGIONAL DIRECTOR MADE CLEAR AND PREJUDICIAL ERRORS
`THAT INFLATED THE NUMBER OF ALLEGED “VACANCIES.” ......................... 19
`1.
`The Regional Director Failed to Fully Apply the Stipulation Which Limits
`the Dispute Solely to Employees in the Four Departments. ................................ 19
`The Regional Director Failed to Include 112 Eligible, Non-Voting, Cross-
`Over Employees in the Disputed Departments in Determining the Number
`of “Vacancies.” .................................................................................................... 21
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`
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`-i-
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`TABLE OF CONTENTS
`(continued)
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`Page
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`3.
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`4.
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`B.
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`The Regional Director’s Failure To Recognize The Mutual Understanding
`Between Charter And 13 Non-Voting Replacements – That Each Was
`Permanent And Occupied A Striker’s Position – Must Be Reversed. ................. 22
`The Regional Director’s Ruling Sustaining The Challenges To 32 Voting,
`Permanent Replacements Was Clearly Erroneous. .............................................. 24
`THE REGIONAL DIRECTOR MISAPPLIED THE BOARD’S LAMB-GRAYS
`PRECEDENT IN FINDING CHARTER DID NOT PROVE THAT IT
`PERMANENTLY ELIMINATED ALL UNFILLED POSITIONS IN THE
`DISPUTED DEPARTMENTS. ....................................................................................... 29
`1.
`The Regional Director Ignored Conclusive Evidence that the Elimination
`of Positions Was Permanent. ............................................................................... 30
`(a)
`Permanent, Systemic Changes in the Disputed Departments. ................. 31
`(b)
`The Regional Director’s Analysis Contradicts Both Lamb-Grays
`and Common Sense.................................................................................. 34
`The Regional Director’s Focus on Headcount Fluctuations is a Red
`Herring. .................................................................................................... 38
`Charter’s Non-Strike Related Reasons For the Permanent Eliminations
`Are Substantial. .................................................................................................... 40
`The Regional Director Misapprehended Sections 8(a)(3) and 9(c)(3) of the
`Act. ....................................................................................................................... 43
`CONCLUSION .......................................................................................................................... 49
`
`(c)
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`2.
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`3.
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`-ii-
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`AT&T Corp. v. Iowa Utilities Board,
`525 U.S. 366 (1999) .................................................................................................................49
`
`Bartlett Nuclear, Inc.,
`314 NLRB 1 (1994) .................................................................................................................46
`
`Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
`467 U.S. 837 (1984) .................................................................................................................49
`
`Consolidated Delivery & Logistics, Inc.,
`337 NLRB 524 (2002) .............................................................................................................24
`
`Dresser-Rand Co.,
`358 NLRB 854 (2012), reconfirmed 362 NLRB 1100 (2015) ................................................26
`
`Erman Corp.,
`330 NLRB 95 (1999) ...........................................................................................................1, 36
`
`Flat Dog Productions,
`331 NLRB 1571 (2000), enfd. 34 Fed. Appx. 548 (9th Cir. 2002) ..........................................47
`
`Harter Equipment, Inc.,
`293 NLRB 647 (1989) .............................................................................................................27
`
`Int’l Bhd. Elec. Workers, Local Union No. 3 v. Charter Commc’ns, Inc.,
`789 Fed. Appx. 254 (2d Cir. 2019), affirmed 286 F. Supp. 3d 465 (E.D.N.Y.
`2018) ..........................................................................................................................................6
`
`K&W Trucking Co., Inc.,
`267 NLRB 68 (1983) ...............................................................................................................28
`
`Laidlaw Corp.,
`171 NLRB 1366 (1968) .....................................................................................................46, 48
`
`Lamb-Grays Harbor Co.,
`295 NLRB 355 (1989) ..................................................................................................... passim
`
`Liberty Homes, Inc.,
`257 NLRB 1411 (1991) ...........................................................................................................42
`
`Monroe Auto Equip.,
`273 NLRB 103 (1994) .............................................................................................................42
`
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`4851-8102-8333.1
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`-iii-
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`National Steel Supply, Inc.,
`344 NLRB 973 (2005) .............................................................................................................47
`
`North Fork Services JV,
`346 NLRB 1025 (2006) ...........................................................................................................47
`
`O. E. Butterfield, Inc.,
`319 NLRB 1004 (1995) ...........................................................................................................27
`
`Omahaline Hydraulics Co.,
`340 NLRB 916 (2003) .........................................................................................................1, 45
`
`Pirelli Cable Corp.,
`331 NLRB 1538 (2000) ...........................................................................................................47
`
`Riverdale Nursing Home, Inc.,
`317 NLRB 881 (1995) .............................................................................................................26
`
`St. Joe Minerals Corp.,
`295 NLRB 517 (1989) ..................................................................................................... passim
`
`Thoreson-Cosh, Inc.,
`329 NLRB 630 (1999) .............................................................................................................43
`
`Wahl Clipper,
`195 NLRB 634 (1972) .............................................................................................................43
`
`Statutes
`
`National Labor Relations Act
`
`Section 8(a)(3), 29 U.S.C. §158(c)(3).................................................................................... passim
`
`Section 9(c)(3), 29 U.S.C. §159(c)(3)....................................................................................1, 2, 43
`
`Other Authorities
`
`Rules and Regulations of the National Labor Relations Board
`
`Section 102.67(d) .............................................................................................................................1
`
`Section 102.67(j) ..............................................................................................................................1
`
`Section102.69(c)(2) .........................................................................................................................1
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`4851-8102-8333.1
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`-iv-
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`INTRODUCTION/REQUEST FOR EXPEDITED REVIEW
`
`Pursuant to Section 102.69(c)(2) of the Board’s Rules and Regulations, Charter
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`Communications, Inc. (“Charter,” or “Employer”) respectfully submits this Request for Review of
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`the Regional Director’s Second Supplemental Decision on Challenged Ballots (the “Second Supp.
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`Dec.”). Based on the uncontested, record evidence and the law, the Board must grant review and
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`reverse certain of the Regional Director’s rulings and conclusions because (a) they are grounded
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`on critical factual findings that are clearly erroneous and prejudicial to Charter’s rights, (b) they
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`depart from established Board precedent, and (c) there are compelling reasons for clarifying an
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`important Board rule or policy. (Section 102.67(d)of the Board’s Rules and Regulations.)
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`The particular circumstances of this case compel expedited review, both to clarify key
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`points of Board law and to decide the long-delayed eligibility issues raised by the 1,599
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`determinative, challenged ballots remaining in this case. (Section 102.67(j) of the Board’s Rules
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`and Regulations.) A mail ballot election was conducted in a unit originally numbering 1,681
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`employees, and it concluded on February 26, 2019. Nearly 28 months later, the election remains
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`unresolved. All parties and the employees need to know whether the Union continues to represent
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`the unit, which requires a prompt determination of the results of the election by expedited review.
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`A critical issue involves the 481 economic strikers who cast challenged ballots and whose
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`eligibility turns on application of the “permanent job elimination” doctrine of Lamb-Grays Harbor
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`Co., 295 NLRB 355 (1989), and St. Joe Minerals Corp., 295 NLRB 517 (1989), which are in
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`tension with Erman Corp., 330 NLRB 95 (1999), and Omahaline Hydraulics Co., 340 NLRB 916
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`(2003). The conflict is particularly acute here because (a) the Regional Director appears to endorse
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`terminating strikers to prove a permanent job elimination, which encourages violations of Section
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`8(a)(3), and conflicts with Section 9(c)(3), and (b) this case specifically requires interpretation of
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`4851-8102-8333.1
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`1
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`Section 9(c)(3) of the Act as it relates to a “reasonable expectation of recall” and voter eligibility.
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`SUMMARY OF ARGUMENT
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`The key question in this case is whether, as of the January 3, 2019 election eligibility date,
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`there were any vacant positions in the four Disputed Departments (defined below) that a striker in
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`those departments could fill (and thus, be eligible to vote). The Regional Director incorrectly
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`concluded that there were 578 such vacancies when, in fact, there were none. The Regional
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`Director’s erroneous conclusion, which would improperly allow the 481 remaining voting strikers’
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`ballots to be counted, was the product of two overarching and independent errors by the Regional
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`Director, the first primarily factual, the second primarily legal.
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`First, in calculating the number of vacancies, the Regional Director simply overlooked,
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`misperceived or otherwise misapplied uncontested facts of record as follows:
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`
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`
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`His starting point for calculating vacancies of 1,681 pre-strike bargaining unit employees
`was wrong, as he improperly included 198 employees from three departments that the
`parties stipulated were not part of this dispute. Thus, the correct number of pre-strike
`positions is 1,483.
`
`His calculation of occupied bargaining unit positions was wrong, as he improperly
`excluded: (a) 112 cross-over employees who indisputably occupied positions in the four
`departments that are at issue at the time of the election; and (b) 45 replacements who
`indisputably were hired as permanent employees and remained employed until the
`election in the departments at issue.1
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`Once these fundamental factual errors are corrected, the maximum number of unfilled
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`positions that could exist is 260. Thus, the maximum number of remaining, voting strikers in the
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`Disputed Departments who could possibly have a right to cast a ballot in the election is also 260
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`before permanent job eliminations are considered.
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`1 The 45 permanent replacements consist of 13 non-voters excluded based on a mistaken review
`of Charter’s payroll evidence and the Excelsior list, and 32 voters, excluded based on speculation
`that is unsupported by, and contrary to, record evidence.
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`4851-8102-8333.1
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`2
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`Second, the Regional Director failed to properly apply Board precedent when he
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`erroneously concluded that Charter’s permanent technological and operational improvements had
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`not resulted in the permanent elimination of the aforementioned potential vacancies (save for three
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`Warehouse positions he found had been eliminated) such that there were no vacant positions as
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`of the eligibility date.2 More specifically, the Regional Director misapprehends the Board’s
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`seminal decision in Lamb-Grays Harbor Co., 295 NLRB 355, 357 (1989), that employees on strike
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`for 12 months or more are ineligible to vote when, for reasons that are not wholly related to the
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`strike, the positions they previously occupied have been permanently eliminated. Here, the 260
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`possible vacancies were permanently eliminated due to technological and operational
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`improvements no less permanent than those analyzed in Lamb-Grays and its progeny.
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`More specifically, the Regional Director ignored a Stipulation entered into by the Parties
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`when he included three additional departments in his count of pre-strike bargaining unit
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`employees. Specifically, the Regional Director failed to honor the parties’ Stipulation removing
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`the issues of permanently eliminated positions, permanent replacements, cross-overs and vacant
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`positions in those three departments, i.e., the Inside Plant (ISP), Design and Drafting, and Dispatch
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`departments and drivers (the “Resolved Departments”), from consideration in this case. The
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`Stipulation thereby limited the issues to be decided in this case to four other departments – the
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`Fulfillment, Maintenance, Construction and Warehouse departments
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`(the “Disputed
`
`Departments”). The Stipulation thus required that the starting point for the calculation of potential
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`vacancies be the number of pre-strike employees in the Disputed Departments only, totaling 1,483,
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`not the 1,681 all-departments number erroneously used by the Regional Director.
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`2 The Regional Director’s finding that 260 positions were not permanently eliminated is thoroughly
`inconsistent with his correct finding that the 3 Warehouse positions were permanently eliminated,
`since the facts relating to all permanent eliminations are virtually indistinguishable.
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`4851-8102-8333.1
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`3
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`The Board must also reject the Regional Director’s clearly erroneous ruling that 124 non-
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`voting cross-overs, who were on the election-eligibility payroll (ERX 18), were not occupying unit
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`positions at the time of the election and should be excluded from the calculation. (Second Supp.
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`Dec. p. 21, fn. 40.) The Regional Director’s determination ignored uncontested payroll records
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`and testimony proving that these employees worked in unit positions and that they were identically
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`situated to the 334 cross-overs who voted and whom the Regional Director correctly concluded
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`filled unit positions. (Second Supp. Dec. p. 21.) Since 112 of the improperly excluded 124 cross-
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`overs filled positions in the Disputed Departments at the time of the election, correcting this error
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`requires that the number of potential vacancies in the Disputed Departments be reduced by 112.
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`The Regional Director’s improper exclusion of 45 permanent replacements from his
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`calculation of occupied unit positions involves two clear errors. One is that thirteen of those
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`replacements were among a large number of non-voters who, the Regional Director conceded,
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`received an e-mail from Charter’s Vice President (ERX 4) establishing a mutual understanding
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`that they were permanent replacements (Second Supp. Dec. pp. 7-8.); and all remained employed
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`at the time of the election, as proven by Charter’s payroll records (ERX 18). Two, the 32 others
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`were voting replacements discounted by the Regional Director despite uncontradicted evidence of
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`a mutual understanding that their employment was permanent, including evidence that they were
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`informed they were permanent replacements at new hire meetings they were required to attend;
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`and all electronically accepted written, permanent job offers (ERX 3). These 45 permanent
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`replacements must be included in the count of occupied unit positions in the Disputed Departments
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`at the time of the election for the purpose of calculating potential vacancies, and the 32 who voted,
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`along with Petitioner Bruce Carberry, should have their ballots opened and counted.
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`4851-8102-8333.1
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`4
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`When these errors are corrected, the maximum number of unfilled positions is 260, as
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`reflected in the below chart.3 Thus, the maximum number of remaining, voting strikers in the
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`Disputed Departments who could possibly have a right to vote in the election is, at most, 260:
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`
`
`Total # of Strikers
`Total # of Cross-Overs
`Total # of Permanent
`Replacements
`Total # of Unfilled Positions not
`counting permanent position
`eliminations 5
`Total # of Unfilled Positions
`counting permanent position
`eliminations
`
`Regional Director’s All-
`Unit Calculation (based on
`Seven Departments)
`1,681
` 334
` 766
`
`Charter’s Calculation for the
`Four Disputed Departments
`Per the Joint Stipulation 4
`1,483
` 426
` 794
`
` 578
`
` 578
`
` 260
`
` 0
`
`The Regional Director also clearly erred in ruling that any vacant positions existed as of
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`the election date, because the uncontested evidence established that any such positions in the
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`Disputed Departments had been permanently eliminated as of January 3, 2019 as a result of plant,
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`system and operational upgrades that were unrelated to the strike and concerning which there is
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`no foreseeable or even possible reversal. In doing so, the Regional Director misapprehended the
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`Board’s seminal decision in Lamb-Grays Harbor Co., 295 NLRB 355 (1989), which holds that
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`3 The Regional Director included employees on leaves of absence in his count of pre-strike unit
`employees. This exaggerates the number of potential vacancies because there were a large number
`of employees on leave when the strike began (127 in the Disputed Departments alone – see ERX
`19) and far fewer (only 24 in those departments – see ERX 18 and charts on p. 14) at the time of
`the election. If employees who were out on leave both pre-strike and at the time of the election are
`not counted, the maximum number of potential vacancies drops to 160 (1,356 pre-strike employees
`less 405 cross-overs less 791 permanent replacements equals 160, inclusive of the three
`permanently eliminated Warehouse positions found by the Regional Director).
`4 For a breakdown of the number of cross-overs and permanent replacements in each of the four
`Disputed Departments, please see the second chart on page 14.
`5 This line excludes the three Warehouse positions that the Regional Director agrees had been
`permanently eliminated. (Second Supp. Dec. p. 14-15 and fn. 30.)
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`4851-8102-8333.1
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`5
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`employees who have no reasonable expectation of future employment are ineligible to vote when,
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`for reasons not wholly related to the strike, the positions they previously occupied have been
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`eliminated. An equally serious error is the Regional Director’s endorsement of terminating strikers
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`as proof of the permanent elimination of excess positions, which encourages violations of Section
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`8(a)(3), and conflicts with Section 9(c)(3), of the Act.
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`For all of these reasons, as demonstrated more fully below, the Regional Director’s findings
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`must be reversed, and the remaining ballots of all striking employees rejected.
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`PROCEDURAL HISTORY
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`On March 28, 2017, four days before the expiration of, and in violation of, the parties’ no-
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`strike clause, IBEW Local 3 (the “Union”) commenced an economic strike that continues to date.6
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`On May 10, 2018, the decertification petition in the instant matter was filed and a mail ballot
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`election was conducted in January and February 2019 (with a January 3, 2019 voter eligibility
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`date). A total of 1,599 valid ballots were cast and all were challenged either by Charter, the
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`Petitioner, or the Union: 651 strikers were challenged by the Petitioner and Charter; and 582
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`permanent replacements and 334 cross-overs (former strikers) were challenged by the Union.7
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`(Second Supp. Dec. p. 1 and fn. 1.)8
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`On August 5, 2019, the Regional Director issued a Supplemental Decision on Challenges
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`and Objections (the “First Supp. Dec.”), directing that the permanent replacements and cross-
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`overs’ ballots be opened and counted, and sustaining challenges to the strikers’ ballots, finding
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`
`6 Int’l Bhd. Elec. Workers, Local Union No. 3 v. Charter Commc’ns, Inc., 789 Fed. Appx. 254,
`260-261 (Summary Order) (2d Cir. 2019), affirming 286 F. Supp. 3d 465 (E.D.N.Y. 2018).
`7 The Union’s challenges to the ballots of 334 cross-overs who voted in the January-February 2019
`election were previously overruled in the April 17, 2019 Interim Report on Determinative
`Challenged Ballots. That decision is now final. (Second Supp. Dec., p. 2 and fn. 3.)
`8 All other ballots cast were deemed void.
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`4851-8102-8333.1
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`they all had been either replaced by permanent replacements or their positions had been
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`permanently eliminated. (First Supp. Dec. pp. 2-3, 6-7.) The Union filed a Request for Review
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`with the Board, and on March 19, 2020, the Board remanded certain challenged ballots to the
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`Regional Director “for further proceedings, including a hearing if warranted.” (Board Order,
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`March 19, 2020, p. 2.)
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`In relevant part, the Board’s remand asked the Regional Director for evidence sustaining
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`his findings that: (1) the 582 employees who cast ballots challenged by the Union as temporary
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`replacements were permanent replacements, and the 651 strikers whose ballots had been
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`challenged by Charter and the Petitioner had been permanently replaced or their positions
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`eliminated; (2) Charter had established that approximately 300 positions had been permanently
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`eliminated under Lamb-Grays Harbor Co., 295 NLRB 355 (1989), for reasons not predicated
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`wholly on considerations related to the strike; and (3) the voters challenged by Charter because
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`they had voluntarily separated from employment before the election had abandoned interest in
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`their jobs and were therefore ineligible to vote. (Board Order pp. 1-2.) On July 30, 2020, the
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`Regional Director directed a hearing in response to the remand, which took place on August 21
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`and September 21 to 24, 2020. (Id.)
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`At the outset of the hearing, all of the parties entered into a Stipulation, Joint Exhibit
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`(“JTX”) 1, resolving and narrowing the issues to be addressed in the hearing. In relevant part, the
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`Stipulation resolved the issue of 67 Charter and Petitioner challenges to the eligibility of all of the
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`voting strikers in the Resolved Departments. The Stipulation removed these departments and those
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`individuals from any further consideration in this proceeding. (JTX 1; Tr. 131.) Thus, there was
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`no longer any dispute about the Resolved Departments.
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`4851-8102-8333.1
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`Only Charter presented witnesses and evidence during the hearing. Following the hearing,
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`the Hearing Officer recommended (i) that of the Union’s 582 ballot challenges to replacement
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`employees, 545 be overruled because they were cast by employees proven to be permanent
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`replacements, and 35 be sustained, and (ii) that only three Warehouse voters’ positions had been
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`permanently eliminated under Lamb-Grays, and Charter’s remaining challenges to ballots cast by
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`strikers should be overruled.
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`On May 14, 2021, the Regional Director issued his Second Supplemental Decision, largely
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`affirming the Hearing Officer’s Report and reversing his own First Supplemental Decision. In the
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`Decision, the Regional Director:
`
` Adopted the parties’ Stipulated resolution of challenged ballots not affecting the
`Disputed Departments. (Second Supp. Dec. p. 5-7);
`
` Overruled the Union’s challenges to 545 replacements because there was a mutual
`understanding
`that
`these 545 employees were employed as permanent
`replacements. (Second Supp. Dec. p. 7-9);
`
` Found that, with respect to 35 other replacement employees, Charter had not
`proven a mutual understanding that their employment was on a permanent basis.
`(Second Supp. Dec. p. 9-11);
`
` Found that the positions of three voting Warehouse technicians had been
`permanently eliminated but that no other positions in the Disputed Departments
`had been permanently eliminated. (Second Supp. Dec. p. 14-15);
`
` Determined that all 481 remaining, challenged strikers were eligible to vote based
`on an incorrectly calculated total of 578 alleged vacant positions at the time of the
`election. (Second Supp. Dec. p. 14-15); and
`
` Made an entirely new finding, not referenced by the Hearing Officer or argued by
`the Union, that 124 cross-overs employed by Charter as of the January 3, 2019
`election eligibility date should be completely discounted because, he found four
`alleged errors in the January 3rd payroll. (ERX 18; Second Supp. Dec., p. 21, fn.
`40; addressed in Summary of Uncontested Facts, Point B.1, infra.)
`
`Accordingly, the Regional Director concluded that the positions occupied by permanent
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`replacements and cross-overs as of the election were filled, and may not be considered vacancies
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`4851-8102-8333.1
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`8
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`
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`for a corresponding number of strikers. The strikers cannot, therefore, be eligible unless there were
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`other vacancies for them at the time of the election, and there were none.
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`SUMMARY OF UNCONTROVERTED FACTS
`
`None of the facts are in dispute. Charter put in all the evidence; the Union and Petitioner
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`put in none. Charter’s evidence was neither contradicted nor impeached.
`
`A.
`
`The Parties’ Stipulation Limited The Contested Issues to The Four Disputed
`Departments.
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`At the outset of the Hearing, the parties entered into a Stipulation that was accepted into
`
`evidence and adopted by the Hearing Officer and by the Regional Director. (JTX 1; Second Supp.
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`Dec. p. 3 fn. 4, p. 5-6, p. 12 fn. 25.) In pertinent part, that Stipulation limited this matter solely to
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`the issues involving the four Disputed Departments – Fulfillment, Maintenance, Construction and
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`Warehouse (excluding drivers). (See JTX 1; Second Supp. Dec. p. 21.)
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`That is, the Stipulation limited the scope of all disputed challenged ballots as follows:
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`The status of job positions and eligibility of strikers in the Dispatch,
`Design and Drafting and ISP departments, and, the drivers in the
`Warehouse, are hereby removed from dispute and consideration in the
`hearing and decision in this case. (emphasis added.)
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`The Stipulation removing the three Resolved Departments did two things. First, it counted all 67
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`strikers from the Resolved Departments who cast ballots as eligible voters. Second, it eliminated
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`all 198 pre-strike bargaining unit positions in the Resolved Departments from consideration in the
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`case. The Stipulation thus had a clear effect: No remaining strikers from other departments could
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`claim eligibility to vote based on the 198 pre-strike positions in the Resolved Departments. The
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`employees in the four other departments – the Fulfillment, Maintenance, Construction and
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`Warehouse departments (the “Disputed Departments”) – could only be eligible to vote based on
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`vacancies in their own departments, not the 198 that were resolved. Indeed, to hold otherwise is to
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`4851-8102-8333.1
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`disregard the Stipulation, resulting in double-counting of the job positions in the Resolved
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`Departments for purposes of eligible voters.
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`The Regional Director recognized that the Stipulation mooted the issues arising from the
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`Resolved Departments. (Second Supp. Dec. p. 12 fn. 25.) However, when the Regional Director
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`calculated the number of unfilled positions at issue (i.e., the number of positions strikers in the
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`Disputed Departments could occupy/the number of strikers who could have their ballots counted),
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`he used the total number of pre-strike bargaining unit employees in all departments (1681 pre-
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`strike unit employees) and did not exclude the 198 pre-strike positions in the three Resolved
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`Departments. (See JTX 1; Second Supp. Dec. p. 21.) The correct total, with the 198 pre-strike
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`positions in the Resolved Departments removed, is 1,483 employees in the Disputed Departments.
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`(See Second Supp. Dec. p. 21.)9
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`B.
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`The Regional Director Excluded Certain Cross-Over and Permanent Replacement
`Employees From His Count of Occupied Positions in the Bargaining Unit.
`1. The Regional Director Excluded 112 Non-Voting Cross-Overs From His
`Count of Occupied Unit Positions in the Disputed Departments.
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`Charter introduced evidence at the hearing reflecting that there were 458 cross-over
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`employees across all departments, 446 of whom were in the Disputed Departments. (ERX 18,
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`payroll code 400; Tr. 194-196.) Of the 458 cross-over employees, the Regional Director excluded
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`from his count of occupied unit positions the 124 non-voting cross-overs who were working in
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`unit positions as of January 3, 2019, 112 of whom were in the Disputed Departments.
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`The Regional Director did not count the 124 non-voting cross-overs based on his finding
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`that the controlling January 2019 payroll contained four errors. (Second Supp. Dec. at p. 21, fn.
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`40.) Two of the employees the Regional Director found were improperly included on that payroll
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`9 If employees out on leave as of the strike date are excluded from the count, there were 1,356
`bargaining unit employees employed in the Disputed Departments as of the strike date. (ERX 19.)
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`list, Anthony Basile III and Luis Barco, do not appear on that payroll document. (ERX 18.) These
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`two individuals were not on the payroll because th