Air Liquide America Corp.

National Labor Relations Board - Board Decisions

Oct 7, 1997

324 N.L.R.B. 661 (N.L.R.B. 1997)

661
324 NLRB No. 104
AIR LIQUIDE AMERICA CORP.
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation that the challenge to the ballot of Jack
Worthley be overruled.
3 The collective-bargaining agreement expired on November 30,
1995.
4 On August 9, 1996, the parties executed a stipulated election
agreement, which described the appropriate bargaining unit as fol-
lows:
All full-time and regular part-time production and maintenance
employees, plant drivers, plant clericals, inside sales people
(counter salesmen) and warehousemen employed by the Em-
ployer at its facility located at 91-163 Hanua Street, Ewa Beach,
Hawaii, and its store at 306 Kalihi Street, Honolulu, Hawaii, but
excluding all office clerical employees, confidential employees,
professional employees, casual employees, all other employees,
guards and supervisors as defined in the Act.
5 The hearing officer found that during the period of August 9
through September 12, 1996, Abe was predominantly performing
outside sales work.
6 119 NLRB 1301 (1958).
Air Liquide America Corporation and Kyle Saad,
Petitioner and ILWU Local 142, AFL–CIO
Air Liquide America Corporaton, Employer-Peti-
tioner and ILWU Local 142, AFL–CIO. Case
37–RD–294 and 37–RM–157
October 7, 1997
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
determinative challenges in an election held on Sep-
tember 12 and 13, 1996, and the hearing officer’s re-
port recommending disposition of them. The election
was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 10 for and 8
against the Union, with 3 determinative challenged bal-
lots.
The Board has reviewed the record in light of the
exceptions and brief, and has decided to adopt the
hearing officer’s findings1 and recommendations2 only
to the extent consistent with this Decision and Direc-
tion.
1. The Employer has excepted to the hearing offi-
cer’s recommendation that the challenge to the ballot
of Vernon Abe be sustained. For the reasons set forth
below, we find merit in this exception.
On February 27, 1995, Abe was hired as an inside
salesperson at the Employer’s Kapolei, Hawaii loca-
tion. He was paid on an hourly basis pursuant to the
parties’ collective-bargaining agreement covering in-
side salespersons. As of July 1, 1996, he was trans-
ferred to the Employer’s Kalihi location in Honolulu,
Hawaii, and his title was changed to outside sales rep-
resentative. At that time his pay was increased and he
became a salaried employee. Outside salespersons were
not covered by the parties’ prior collective-bargaining
agreement.3 Abe was given this position because the
Employer wanted to increase sales at the new location
and to generate new revenue. At the Kalihi location
Abe performed both inside and outside sales work.
The hearing officer concluded that Abe was ineli-
gible to vote because he was an outside sales rep-
resentative at the time of the election and that position
was not included in the stipulated unit. The hearing of-
ficer found that the clear intent of the parties to the
stipulated election agreement was to include inside
salespersons in the unit and to exclude ‘‘all other em-
ployees.’’4 Because Abe’s title was ‘‘outside sales rep-
resentative’’ as of July 1996, the hearing officer found
that the parties intended to exclude Abe from the unit.
The hearing officer saw ‘‘no reason to examine beyond
the clear intent of the election agreement’’ and found
that Abe was ineligible to vote. The hearing officer
further found that when Abe was transferred, the Em-
ployer had the full intention of making him an outside
salesperson and that because he performed other duties
in addition to inside sales work, Abe did not share the
necessary community of interest with the inside sales
employees.5
In its exceptions, the Employer contends that the
hearing officer erred in finding that the parties to the
stipulated election agreement clearly intended to ex-
clude Abe as an outside salesperson. The Employer re-
lies on a Norris-Thermador6 agreement executed by
the parties specifically stating that Abe may vote sub-
ject to challenge. The Employer argues that this agree-
ment indicates that, regardless of his title, the parties
did not clearly intend to exclude Abe from the unit.
Rather, the clear intent of the parties was to have
Abe’s eligibility determined by traditional community-
of-interest factors. The Employer further maintains that
although Abe’s job title was not within the unit de-
scription, that title did not fairly represent what Abe
actually does and is, therefore, not controlling. The
Employer also excepts to the hearing officer’s finding
that Abe was predominantly performing outside sales
work, and argues that Abe has actually performed very
little outside sales work since his transfer. Because
Abe continues to perform mainly inside sales work, the
Employer contends that he shares a community of in-
terest with unit employees and should be included in
the unit. The Employer also maintains that Abe should
be included in the unit because he is a dual-function
employee, performing unit work for sufficient periods
of time to demonstrate that he has a substantial interest
in the unit’s working conditions. We find merit in the
Employer’s contentions.
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662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 We also agree with the Employer that Abe’s job title would not
be controlling because, as discussed below, it does not fairly rep-
resent the work that Abe actually performs. Viacom Cablevision, 268
NLRB 633 fn. 8 (1984).
8 See Avco Corp., 308 NLRB 1045 (1992) (reaffirming the validity
of Berea).
9 Although the hearing officer stated that he believed that Abe was
purposefully attempting to downplay his role as an outside
saleperson, he did not specifically discredit Abe’s testimony, and, in
the absence of any contrary evidence, we rely on Abe’s estimates,
based on reference to his calendar, of the number of hours he spent
performing inside and outside work.
10 Abe testified that between August 12 and 30 he worked from
about 7 or 7:30 a.m. until about 5 p.m. During that period he gen-
erally left the store between 8:30 and 9:30 a.m. and returned to the
store between 3 and 3:30 p.m. During the time away from the store,
Abe performed outside work with the exception of a half-hour lunch
period. He further testified, however, that some of the work per-
formed during the time away from the store was not necessarily re-
lated to outside sales, but was related to inside sales.
11 The election was held September 12 and 13.
12 In other words, during this period, which consisted of approxi-
mately 10 weeks or 400 working hours, only 65.5 hours (or about
16 percent of the total hours) were spent performing nonunit work.
13 The Employer’s letter dated December 23, 1994, acknowledged
Bumanglag’s leave of absence for the period from January 1, 1995,
to and including December 31, 1995. However, sec. 5 of the collec-
tive-bargaining agreement effective for the period of December 1,
1991, through November 30, 1995, provides that leaves of absence
for union business ‘‘shall not extend beyond the term of this agree-
ment or beyond one (1) year, whichever is shorter.’’ Therefore, it
could well be argued that under the collective-bargaining agreement
Bumanglag’s leave of absence ended on November 30, 1995, when
the contract expired. In its brief, however, the Employer states that
‘‘when the Company granted Bumanglag’s leave of absence, it
agreed to extend the leave of absence one month beyond the termi-
nation of the collective bargaining agreement to December 31,
1995.’’ See the discussion, infra, of the Employer’s contentions.
We agree with the Employer that the hearing officer
erred in concluding that the parties clearly intended to
exclude Abe from the unit. The Norris-Thermador
agreement executed by the parties plainly shows that
the parties did not agree to the exclusion of Abe. Rath-
er, the parties intended that Abe would vote subject to
challenge and his eligibility would be determined at a
later date, if necessary. Thus, contrary to the hearing
officer, we do not find Abe’s exclusion compelled by
the stipulated unit description and his job title.7 Ac-
cordingly, we shall determine Abe’s eligibility in ac-
cordance with traditional Board principles.
We find, in agreement with the Employer, that Abe
is a dual-function employee who performs both unit
and nonunit work. The test for determining whether a
dual-function employee should be included in a unit is
‘‘whether the employee [performs unit work] for suffi-
cient periods of time to demonstrate that he . . . has
a substantial interest in the unit’s wages, hours, and
conditions of employment.’’ Berea Publishing Co., 140
NLRB 516, 518–519 (1963).8
Applying this test to the facts presented here, we
conclude that Abe performs sufficient unit work to
demonstrate a substantial interest in the unit’s terms
and conditions of employment. Abe testified, without
contradiction,9 that during the month of July he spent
only about 5-1/2 hours doing outside work, during Au-
gust he spent about 60 hours performing outside
work,10 and during September he performed no outside
work.11 On the basis of this testimony, we find that
between the time that Abe’s job title changed on July
1, 1996, and the election, Abe spent over three-quar-
ters of his time performing unit inside sales work.12
Applying the Berea test, we conclude that Abe per-
forms unit work for a sufficient number of hours that,
despite his title change, Abe has a substantial interest
in the unit’s terms and conditions of employment. For
these reasons, we find that Abe should be included in
the unit as a dual-function employee. In light of that
conclusion, we find it unnecessary to analyze the other
community-of-interest factors relied on by the Em-
ployer to warrant Abe’s inclusion in the unit. Fleming
Industries, 282 NLRB 1030 fn. 1 (1987). Accordingly,
we shall overrule the challenge to Abe’s ballot and
shall direct that his ballot be opened and counted.
2. The hearing officer found that the challenge to
the ballot of Edward R. Bumanglag Jr. should be over-
ruled. For the following reasons, we agree with the
hearing officer.
Bumanglag began work for one of the Employer’s
predecessors in 1976. He became a quality control in-
spector for the Employer in 1994. Upon his election as
a business agent for the Union in December 1994,
Bumanglag requested, and was granted, a leave of ab-
sence to conduct union business.13 In the fall of 1995,
the Employer and the Union were involved in contract
negotiations. Before the November 20, 1995 session,
Bumanglag told Chauncey Blaisdell, the Employer’s
regional manager, that he was not satisfied with his job
as union business agent and expressed a desire to per-
haps return to work for the Employer. He asked
Blaisdell if he was still covered by his union leave of
absence and Blaisdell replied, ‘‘[S]ure.’’
On November 27, 1995, the Union requested a sec-
ond leave of absence for Bumanglag effective January
1, 1996, to December 31, 1996. At the same time, the
Union requested a 3-day leave of absence for Jackie
Wallace to attend contract negotiations in December
1995. As found by the hearing officer, in the past the
Employer had consistently granted leave-of-absence re-
quests for union business. Consistent with past prac-
tice, the Employer gave written approval to the Wal-
lace leave request. The Employer, however, never re-
sponded to the Bumanglag leave request.
On November 30, 1995, the parties’ collective-bar-
gaining agreement expired. In December 1995, the
Employer withdrew recognition from the Union and
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663AIR LIQUIDE AMERICA CORP.
14 The handbook contains a ‘‘Leave of Absence’’ provision, which
reads as follows:
You may be granted a leave of absence in certain cir-
cumstances. You should request any leave in writing as far in
advance as possible. It is your responsibility, while on a leave
of absence, to keep in touch with your immediate supervisor
and/or the Human Resources Department, and to give prompt
notice if there is any change in the agreed return date.
It is understood that you will not obtain other employment or
apply for unemployment insurance while you are on a leave of
absence. Acceptance of other employment while on leave will
be treated as a voluntary resignation of employment from the
Company.
Vacation, holidays and other benefits will not accrue while
you are on a leave of absence. Upon return from a leave of ab-
sence, you will be credited with the full employment status
which existed prior to the start of your leave. You will not re-
ceive credit for the time during the leave, except that your origi-
nal date of hire will be retained.
Questions regarding Leave of Absence or the Leave of Ab-
sence forms should be directed to your manager or the Human
Resources Department.
15 Blaisdell testified that he made a conscious decision not to an-
swer the Union’s November 27, 1995 leave of absence request.
16 Blaisdell testified that the Employer sent Bumanglag a letter ad-
vising him of his rights under the Consolidated Omnibus Budget
Reconciliation Act (COBRA). However, Bumanglag testified that he
did not recall receiving such a letter, and no COBRA letter was in-
troduced into evidence.
17 We do not adopt, however, the hearing officer’s reliance on the
‘‘reasonable expectation of employment’’ test. The Board has found
that the ‘‘reasonable expectation of employment’’ test applies to eli-
gibility determinations involving laid-off employees, while the Red
Arrow test governs eligibility determinations involving employees on
sick leave. Thorn Americas, Inc., 314 NLRB 943 (1994). Similarly,
we find here that it is the Red Arrow test, not the ‘‘reasonable ex-
pectation of employment’’ test, that controls in cases involving the
eligibility of employees on leaves of absence.
18 The court referred to this kind of severance of the employment
relationship as a ‘‘constructive termination.’’ See also Hercules, Inc.,
225 NLRB 241 (1976), relied on by the Employer, in which the
Board found that an employee had been terminated even though that
termination had not been communicated to the employee. In that
case, the Board found that the surrounding circumstances indicated
that the employee had been terminated.
unilaterally put into effect new terms and conditions of
employment set forth in an employee handbook.14
Bumanglag subsequently made several attempts to
speak to Blaisdell about the status of his November 27,
1995 request. Bumanglag testified that around Decem-
ber 20, 1995, he spoke with Hubert Jesse, an employee
who handles computer work in the office, and gave
him a message to inform Blaisdell that Bumanglag
wanted to discuss his leave of absence. About a week
later, he talked to Office Manager Marilyn Naone, and
she told him that she would leave a note on Blaisdell’s
computer screen so he would get the message.
Bumanglag went back to Jesse, 2 or 3 days’ later
(prior to New Year’s Eve), who told Bumanglag that
he had not spoken to Blaisdell about Bumanglag’s re-
quest and that Blaisdell was on vacation, but that he
would talk to Blaisdell when Blaisdell returned. In
early January 1996, Bumanglag asked Plant Manager
Bob McBride whether he was scheduled to return to
work, and McBride stated that Bumanglag was still on
union business leave of absence. The second or third
week of January, Bumanglag spoke with Blaisdell who
stated that the Employer had received the Union’s let-
ter, and that ‘‘he would have to check with his legal
people first.’’ Blaisdell never got back to Bumanglag
about the request.15 However, in February 1996
Blaisdell filled out a ‘‘Human Resources Employee
Change Form,’’ which stated that Bumanglag was ter-
minated. No one from the Employer ever informed
Bumanglag that he was terminated.16
In finding that Bumanglag was eligible to vote, the
hearing officer relied primarily on the test set forth in
Red Arrow Freight Lines, 278 NLRB 965 (1986).
Under Red Arrow, an employee is presumed to con-
tinue in sick or maternity leave status unless the pre-
sumption is rebutted by an affirmative showing that the
employee has resigned or been discharged. Although
Red Arrow involved sick leave, we agree with the
hearing officer that that test applies by analogy to
other types of leaves of absence, including leaves of
absence for union business. The Red Arrow test is an
easily applied standard and we see no reason not to
apply it here and to other types of leaves of absence.17
This conclusion is consistent with court precedent ap-
plying a standard akin to the Red Arrow test in nonsick
leave situations. For example, in Trailmobile Division,
Pullman Inc. v. NLRB, 379 F.2d 419 (5th Cir. 1967),
a case involving the eligibility of an employee on a
leave of absence for the purpose of working on trucks
the employee owned privately, the court stated that
‘‘an employee on leave of absence generally continues
to be regarded as an employee unless it can be estab-
lished by overt action or objective evidence that the
employment relationship has been severed.’’ 379 F.2d
at 423.
In Cavert Acquisition Co. v. NLRB, 83 F.3d 598 (3d
Cir. 1996), in which the court approved the application
of the Red Arrow test to sick leave cases, the court
noted that in order to find an affirmative termination
of employment, there must be ‘‘a manifestation of the
intent to terminate which is clearly communicated to
the other party.’’ 83 F.3d at 607. However, the court
went on to state that it is not necessary that the com-
munication that effects the termination be a formal ter-
mination letter. Rather, an affirmative termination can
be found even in the absence of any formal or infor-
mal communication, in instances where the surround-
ing circumstances make clear that the employment re-
lationship has ended. 83 F.3d at 607.18
Applying the Red Arrow test, we find first, in agree-
ment with the hearing officer, that there is no evidence
that Bumanglag quit his employment or that the Em-
ployer communicated to him—either formally or infor-
mally—that his employment had been terminated. We,
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664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Member Higgins agrees with this result but he does not agree
with Red Arrow, supra. Rather he agrees with former Member
Cohen’s dissent in Vanalco, Inc., 315 NLRB 618 (1994). In his
view, the test here is whether the employee has a ‘‘reasonable ex-
pectancy’’ of continued employment. The Employer has not shown,
by a preponderance of the evidence, that Bumanglag lacks a reason-
able expectancy of continued employment.
therefore, turn to the question whether, as argued by
the Employer, the surrounding circumstances in the in-
stant case make clear that Bumanglag’s employment
relationship had ended.
The Employer argues in substance that termination
is shown by the following facts: (1) as of January 1,
1996, Bumanglag no longer had a leave of absence be-
cause the one the Employer granted him expired De-
cember 31, 1995, and the collective-bargaining agree-
ment, the source of his right to a leave of absence for
union business, expired November 30, 1995; (2) the
employee handbook in effect as of January 1, 1996,
mandated the termination of an employee as of the ex-
piration of a leave of absence; and (3) Bumanglag did
not return to work and was removed from the payroll
in February 1996. For the following reasons, we find
no merit in the Employer’s contentions.
First, the fact that Bumanglag’s leave of absence
and the collective-bargaining agreement had both ex-
pired by January 1, 1996, cannot be accorded signifi-
cant weight in the circumstances of this case. In our
view, the probative value of that evidence is substan-
tially diminished by the undisputed facts that on No-
vember 27, 1995, while Bumanglag was still on ap-
proved leave and prior to the expiration of the con-
tract, the Union requested a new leave of absence for
Bumanglag, and the Employer never acted on this re-
quest. Particularly in light of the past practice of con-
sistently granting such requests, the Employer’s failure
to respond to the November 27, 1995 request left
Bumanglag’s status ambiguous and the Red Arrow pre-
sumption of continued employee status unrebutted.
Second, contrary to the Employer’s contention, the
‘‘Leave of Absence’’ provision of the employee hand-
book does not mandate the termination of an employee
upon the expiration of a leave of absence. Indeed, the
handbook does not even address that circumstance. Al-
though the handbook does state that ‘‘[a]cceptance of
other employment while on leave will be treated as a
voluntary resignation of employment with the Com-
pany,’’ Bumanglag did not, in fact, accept employment
with any entity other than the one that the Employer
had authorized when it granted him the leave of ab-
sence (i.e., the Union).
Finally, the Employer’s claim that Bumanglag was
terminated in February 1996 for not returning to work
is undermined by its failure to maintain this position
consistently throughout the relevant time period. It is
of course understandable that the Employer would
want to secure legal advice before responding to the
November 27, 1995 request for a second leave of ab-
sence. However, once the Employer had decided not to
grant the request, it never communicated its position to
Bumanglag, notwithstanding his several requests for
clarification of his status. Nor can the Employer’s
claim that it terminated Bumanglag in February 1996
be reconciled with the statement of its plant manager
to Bumanglag a month earlier that he was still on
union business leave of absence.
For all these reasons, we find that the surrounding
circumstances, when considered in their entirety, do
not warrant a finding of a constructive termination.
We, therefore, conclude that under Red Arrow, the
Employer has not rebutted the presumption of contin-
ued employee status and we agree with the hearing of-
ficer that Bumanglag was an eligible voter. Accord-
ingly, we shall direct that his ballot be opened and
counted.19
DIRECTION
IT IS DIRECTED that the Officer-in-Charge for Sub-
region 37 shall, within 14 days from the date of this
Decision and Direction, open and count the ballots of
Vernon Abe, Jack Worthley, and Edward R.
Bumanglag Jr., prepare and serve on the parties a re-
vised tally of ballots, and issue the appropriate certifi-
cation.
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