Orange Blossom Manor

National Labor Relations Board - Board Decisions

Oct 27, 1997

324 N.L.R.B. 846 (N.L.R.B. 1997)

846
324 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Subsequently, the parties stipulated that Mike Sanchez, a chal-
lenged voter, was eligible to vote.
2 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendations that the Petitioner’s Objections 3 and 5
be overruled, the Employer’s objections be overruled in their en-
tirety, and the challenge to the ballot of Francine Joseph be sus-
tained.
3 Member Higgins agrees that the ballot of Kathleen Morgan
should be counted, but does so on the basis of a rationale that is
different from that of his colleagues. Member Higgins agrees with
former Member Cohen’s dissent in Vanalco, Inc., 315 NLRB 618
(1994), that the eligibility of individuals on medical leave should be
based on whether there is a reasonable prospect that they will return
to work. Member Higgins finds that under either Red Arrow Freight
Lines, 278 NLRB 965 (1986), or his ‘‘reasonable expectancy’’ test,
Kathleen Morgan was eligible to vote.
The Employer challenged Kathleen Morgan’s ballot on the ground
that she was not an employee on the payroll eligibility date, August
18, 1996. The Petitioner contends that she was an employee on sick
leave on that date. The record shows that Kathleen Morgan re-
quested and was granted a temporary leave of absence from January
8 until January 30, 1996, because of illness. At the Employer’s re-
quest, Morgan produced a doctor’s note stating that she would be
unable to work until the symptoms of her illness were controlled.
In early February 1996, the Employer’s director of nursing (DON)
asked Morgan when she would be returning to work, and Morgan
replied that she did not know and had to wait for her doctor’s per-
mission to return. At that time, the Employer asked for, and received
from Morgan, another doctor’s note, which stated that she would not
be able to return to work until medically cleared. Sometime later,
Morgan informed the DON that the doctor had estimated that it
would take up to 6 months for Morgan to recover from her illness.
The DON telephoned Morgan 1 to 2 months after receiving the sec-
ond doctor’s note to check on her condition and to ask when she
would be returning to work. When Morgan stated that she did not
know because she was still sick, the DON’s only response was
‘‘okay.’’ There is no record evidence of any other communication
between Morgan and any other Employer representative between
April and August 1996.
Morgan contacted the DON in mid-August 1996 (prior to August
18) to advise her that she had been cleared to return, and Morgan
was told that she would be put ‘‘on call’’ at that time. The DON,
however, told Morgan that she would call her when a permanent po-
sition became available and that Morgan would get back her former
position at the same location. A couple of weeks later, the DON no-
tified Morgan about the availability of a permanent position, and on
September 12, 1996, Morgan met with the DON who insisted that
she sign ‘‘new employee’’ documents. Later that day, Morgan com-
plained to the Employer’s administrator, Morris Hyman, about being
brought back as a new employee with the resulting loss of seniority.
Morgan returned to work in her former full-time position on Septem-
ber 16, 1996, before the September 25, 1996 election. On the day
that she returned to work, Hyman told her that he had taken care
of her problems and that she was back in her previous position with
her seniority restored.
On these facts, where the Employer inquired several times during
Morgan’s sick leave about her possible return date, and had been in-
formed that she would be able to return in approximately 6 months,
Member Higgins finds that Morgan had a reasonable expectancy of
returning to work and therefore remained a unit employee eligible
to vote in the election. In particular, Member Higgins notes that the
Employer’s DON gave all indications to Morgan that she would be
returning to work as soon as she received medical clearance from
her doctor.
4 All dates are in 1996 unless otherwise indicated.
5 All the information regarding these conversations comes from the
credited testimony of Bernadette Morgan. The DON did not testify.
Orange Blossom Manor, Inc. and Unite! Union of
Needletrades, Industrial and Textile Employ-
ees, AFL–CIO, CLC. Case 12–RC–7995
October 27, 1997
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
The National Labor Relations Board has considered
objections and determinative challenges regarding an
election held September 25, 1996, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Elec-
tion Agreement. The tally of ballots shows 26 for and
25 against the Petitioner, with 4 challenged ballots, a
sufficient number to affect the outcome.1
The Board has reviewed the record in light of the
exceptions and briefs and, for the reasons set forth
below, has decided to adopt the hearing officer’s find-
ings and recommendations only to the extent consistent
with this decision.2
The Employer excepts to the hearing officer’s rec-
ommendations to sustain Objection 4 and to overrule
the challenges to the ballots of Kathleen and Berna-
dette Morgan (B. Morgan). We agree with the hearing
officer’s recommendations that Objection 4 be sus-
tained and the challenge to the ballot of Kathleen Mor-
gan be overruled. Contrary to the hearing officer, how-
ever, we find that the challenge to the ballot of B.
Morgan should be sustained for the reasons set forth
below.3
The Employer, Orange Blossom Manor, is an as-
sisted living facility providing care for the elderly. B.
Morgan worked there as a full-time certified nurse as-
sistant (CNA) from September 1994 to September 15,
1996.4 The Employer challenged her ballot on the
grounds that she had resigned before the date of the
election and was not on a temporary leave of absence.
In early September, B. Morgan approached her im-
mediate supervisor, Director of Nursing Sara Stuteville
(hereafter the DON), who was looking for someone to
switch from the night to the day shift. When B. Mor-
gan indicated that she might be able to do this, the
DON said that when B. Morgan was ready, the DON
would make a place for her, even if it meant firing
someone else.5
In a second conversation taking place several days
later, B. Morgan told the DON that she was going to
participate in a training program at a nearby hospital,
where she would also be working full time. She ex-
plained that during the 30-day training period she
would not be able to arrive on time for her regular
shift, but the DON said that it was no problem. B.
Morgan later told the DON that she felt it would be
unfair to her coworkers if she were to miss the first
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847ORANGE BLOSSOM MANOR
6 Even considering B. Morgan’s statement to the DON that she
would be available to work on completion of her training, there was
no commitment that she would return to full-time unit employment.
In any event, her subsequent written statement clearly stated an in-
tent to resign.
2 hours of each shift because those were often the
most difficult.
B. Morgan told the DON in a third conversation
that, after having thought the matter over some more,
she had decided to resign, but that she would be
‘‘available to work’’ full time again at Orange Blos-
som once she completed her training. The DON asked
B. Morgan if she would be willing to work weekends
at Orange Blossom until the training was completed,
but B. Morgan declined, saying that she had never had
weekends off before and that now she wanted them to
herself.
At the conclusion of this conversation, the DON
asked B. Morgan to put her intention in writing, which
she did in the following words: ‘‘Effective September
15, 1996 I hereby resign as a full-time employee at
Orange Blossom Manor. I will remain on call as a
part-time employee.’’ The note bears B. Morgan’s sig-
nature and is dated September 5, 1996.
Shortly after she submitted the note, she was offered
the chance to remain on Orange Blossom’s health in-
surance plan at her own cost. She chose instead to get
coverage through her new employer.
In October, when her training was finished, B. Mor-
gan tried to reach the DON to discuss the possibility
of returning to work for the Employer. The DON,
however, had since left Orange Blossom, and Morris
Hyman, the manager, was then making all hiring deci-
sions. When B. Morgan spoke with Hyman she was
told that no positions were available at that time.
The hearing officer found that B. Morgan had ‘‘ac-
tually requested a temporary leave of absence.’’ She
based this finding on B. Morgan’s testimony that she
and the DON had a clear understanding that she would
return to work after the training period and that when
she came back a position would be available for her.
The hearing officer concluded that although the word
‘‘resign’’ appeared in the note, the note was not in-
tended to sever the employment relation. In so doing,
she relied on B. Morgan’s testimony that the reason
the note only partially expressed the understanding she
had with the DON was that she relied on the DON’s
word and did not think any other measures were nec-
essary.
Contrary to the hearing officer, we find it clear from
the record that B. Morgan neither requested nor was
granted a leave of absence. Thus, as indicated above,
the DON asked B. Morgan to put her intention in writ-
ing, and in response to that request B. Morgan wrote
that she was resigning from her full-time position and
would remain on call as a part-time employee. Further,
it is clear based on the parties’ stipulation at the hear-
ing that on-call employees are not included in the unit.
Nowhere in B. Morgan’s testimony is the phrase
‘‘leave of absence’’ mentioned as having been used in
her discussions with the DON nor was it used in any
description of the agreement between B. Morgan and
the DON. To the contrary, the sum of B. Morgan’s in-
tentions was expressed as an intent to resign from the
unit position in which she had been previously em-
ployed. She expressed this clearly and unambig-
uously.6
In order to participate in an election, an employee
must be employed on the date of the election. Beverly
Manor Nursing Home, 310 NLRB 538 fn. 3 (1993).
We find that B. Morgan voluntarily resigned from her
unit job before the date of the election. We therefore
reverse the hearing officer’s finding on this issue, and
conclude that she was ineligible to participate in the
election.
DIRECTION
It is directed that the Regional Director for Region
12 shall, within 14 days from the date of this Decision,
Direction, and Order, open and count the ballots of
Mike Sanchez and Kathleen Morgan and thereafter
prepare and serve on the parties a revised tally of bal-
lots. If the revised tally shows the Petitioner has re-
ceived a majority of the votes cast, the Regional Direc-
tor shall issue a certification of representative. If the
revised tally shows a majority of votes cast against the
Petitioner, the election shall be set aside and a rerun
election shall be conducted.
ORDER
It is ordered that this proceeding is remanded to the
Regional Director for Region 12 for further appropriate
action.
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