1 - National Labor Relations Board

Representation Cases 65
eligibility date and the date of election in order to vote in a
Board election, by holding that permanent replacements for economic
strikers were permitted to vote where the strike commenced,
and the replacements were therefor hired, after the direction
of election ; in Greenspan, however, the Board held that the
rule enunciated in Tampa Sand would not apply where the strike
began prior to the direction of election setting the eligibility date
and replacements hired after the eligibility date could not vote.
In Macy's Missouri-Kansas, like Tampa Sand, the economic strike
occurred after the direction of election, but unlike both Tampa
Sand and Greenspan, the strike was over by the election date and
the strikers had been returned to work but the replacements
hired were retained in the unit as permanent employees. The
Board, overruling the challenges to the ballots of the employees
hired as permanent replacements for economic strikers but retained
as additional employees, concluded that they were eligible
to vote because they were employed on the day of the election
and that Tampa Sand and Greenspan did not establish that the
eligibility to vote of striker replacements in strikes commencing
after the eligibility date would be limited to situations where the
strike was also current on the election date.69
2. Determination of Eligibility
The Board permits parties to a representation proceeding to
resolve definitively as between themselves issues of eligibility
prior to an election if they clearly evidence their intention to
do so in writing. Such an arrangement is final and binding upon
the parties unless it is, in part or in whole, contrary to the Act
or established Board policy. 70 In Pyper Construction Co., 71 the
Board sustained the challenge to the ballot of an employee excluded
from an eligibility list where the parties had listed the
employees by name and clearly intended the signed agreement to
be final and binding. The Board deemed it irrelevant and not
against Board policy that the employee may have been excluded
through inadvertence and not as a result of discussion and agreement
as to his ineligibility. However, in American Printers &
69 Chairman McCulloch and Members Fanning and Jenkins for the majority. Members
Brown and Zagoria, dissenting, would find that the challenged voters were "no different in
fact from any other additional employees hired after the voting eligibility date" and "to
overrule the challenges in these circumstances is to accord to strike replacements a preference
under Board eligibility rules—founded solely upon their status as strike replacements" which
"lacks support in statutory policies and constitutes an unwarranted departure from [the
Board's] general rules
70 Norria-Thermador Corp., 119 NLRB 1301 (1958).
" 177 NLRB No. 91.