Thorn Americas, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 943 (N.L.R.B. 1994)

943
314 NLRB No. 155
THORN AMERICAS, INC.
1 The Board’s decision did not specifically discuss this issue.
2 306 NLRB at 1027.
3 We agree with the Regional Director, for the reasons stated in
his report, that Evans’ acceptance of a position with another em-
ployer did not affect his eligibility. He did not begin work for that
employer until after the election.
Thorn Americas, Inc. and Local 58, International
Brotherhood of Electrical Workers, AFL–CIO,
Petitioner. Case 7–RC–20183
August 31, 1994
DECISION AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The National Labor Relations Board, by a three-
member panel, has considered a determinative chal-
lenge in an election held on December 10, 1993, and
the attached pertinent portions of the Regional Direc-
tor’s report recommending disposition of it. The elec-
tion was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows four for and
four against the Petitioner, with one determinative
challenged ballot.
The Board has reviewed the record in light of the
exceptions and brief and has decided to adopt the Re-
gional Director’s findings and recommendations.
The Employer challenged the ballot of Gerald Evans
on the ground that Evans had no reasonable expecta-
tion of returning to work after incurring a work-related
injury and accepting a position with another employer.
The Regional Director found that Evans retained his
employee status during the payroll eligibility period
and on the election date, and recommended that the
challenge be overruled. In so finding, the Regional Di-
rector applied the test set forth in Red Arrow Freight
Lines, 278 NLRB 965 (1986) (an employee absent
from work due to illness or injury is presumed to re-
tain both employee status and voting eligibility, unless
the party seeking to rebut that presumption shows that
the employee resigned or was discharged).
In its exceptions, the Employer relies on Advance
Waste Systems, 306 NLRB 1020, 1032 (1992), to sup-
port its contention that the ‘‘reasonable expectation of
employment’’ test is the appropriate test rather than the
test set forth in Red Arrow. We disagree with the Em-
ployer and find, in agreement with the Regional Direc-
tor, that Red Arrow is the appropriate test.
In Advance Waste the judge found that an employee
was ineligible to vote because he was laid off with no
reasonable expectation of being recalled due to a work-
related injury.1 Advance Waste is distinguishable on
the ground that the employee in that case was ‘‘perma-
nently laid off’’ at the time of the election.2 The Board
has found that the ‘‘reasonable expectation of employ-
ment’’ test applies to eligibility determinations involv-
ing laid-off employees, but not employees on sick
leave. Edward Waters College, 307 NLRB 1321, 1322
fn. 6 (1992).
To the extent that Advance Waste is ambiguous and
can be construed as applying a ‘‘reasonable expecta-
tion of employment’’ test to sick leave cases, we dis-
avow such a construction and adhere to the Red Arrow
test in sick leave cases. See, e.g., Edward Waters Col-
lege, supra (a post-Advance Waste case applying Red
Arrow).
The Regional Director correctly applied Red Arrow
in the instant case. Evans was an eligible voter, be-
cause the Employer failed to show that Evans resigned
or was discharged from his employment prior to the
election.3 Accordingly, we agree with the Regional Di-
rector that the Employer’s challenge to Evans’ ballot
should be overruled. We shall therefore direct the Re-
gional Director to open and count Evans’ ballot, serve
on the parties a revised tally of ballots, and issue the
appropriate certification.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 7 shall, within 14 days from the date of this Deci-
sion and Direction, open and count the ballot of Gerald
Evans, prepare and serve on the parties a revised tally
of ballots, and issue the appropriate certification.
APPENDIX
REGIONAL DIRECTOR’S REPORT AND
RECOMMENDATION ON DETERMINATIVE
CHALLENGED BALLOT
The ballot of Gerald Evans was challenged by the Em-
ployer on the basis that he has been on a sick or medical
leave of absence due to an injury sustained to his arm and
that he has no reasonable expectancy of return. Additionally,
the Employer contends that Evans’ acceptance of a job with
another employer prior to the election rendered him ineli-
gible to vote. Petitioner contends that, as of the election date,
Evans was on sick leave and, hence, was eligible to vote in
the election.
I. INVESTIGATION
The basic facts are not in dispute. Evans was hired by the
Employer on February 11, 1991, as an electronic service
technician to repair consumer electronics, including stereos,
computers, televisions, and video cassette recorders. At the
time of his hire, he had a partially paralyzed left arm and
left leg as a result of a childhood injury. On February 9,
1993, Evans injured his right elbow while at work. The fol-
lowing day he advised Regional Service Manager Alan Kauf-
man of the injury, explaining that he was experiencing pain
in his right wrist and forearm, and that he was going to see
a doctor. Evans saw a physician on February 10; his arm was
placed in a sling and he was instructed to remain off work
through February 16. Evans, however, returned to work on
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Apparently, the determining factor in reclassifying Evans was an-
ticipated length of recovery time.
February 15 with a doctor’s note stating he could not per-
form heavy lifting, bending, or turning of his right arm. He
was given light assignments and continued to receive ther-
apy. On February 24, he gave the Employer a physician’s
note stating that he could not turn or twist his right hand and
arm, and could not push or pull items weighing over 25
pounds. Kaufman stated to Evans that because of his limita-
tions the Employer had no work available for him.
On about March 10, Evan was referred to an orthopedic
specialist whom he saw on March 17. He obtained a release
from the specialist to return to work on April 26 without re-
striction. Evans worked on April 26, but the next day advised
Kaufman that he was experiencing intense pain and could not
use his right arm. Kaufman informed Evans that he would
not be accepted back to work until he received a full release
from a doctor stating he was able to lift items weighing be-
tween 35 and 50 pounds. A letter to this effect was sent by
the Employer to its workers’ compensation insurance carrier,
and a copy given to Evans. On about May 1, Evans was ex-
amined by another doctor who apparently found him fit to
work. On May 5, Evans obtained a referral to the Michigan
Hand Rehabilitation Center for therapy and a doctor’s note
stating that he was unable to work ‘‘for the present time.’’
When he proffered this note to the Employer, he was advised
that the other doctor stated he was capable of working.
On about March 10, Evans began receiving workers’ com-
pensation payments from the Employer’s insurance carrier.
The checks ceased in May but resumed again in June after
Evans retained an attorney and continued until December
when the checks again ceased. In June, the Employer’s insur-
ance carrier reclassified Evans’ case status from medical in-
jury to vocational rehabilitation.1 A rehabilitation counselor
was assigned to Evans at that time. In December, Evans
began working for Welding Metals, Inc. as a service repair-
man repairing electronic welding equipment and earning ap-
proximately $1 an hour less than at the Employer.
There is a dispute as to when Evans accepted a position
with Welding Metals, as well as when he began working for
that company. According to Evans, he was interviewed on
December 13, was offered and accepted employment on De-
cember 17, and commenced working on December 20. The
Employer asserts that Evans accepted a position with Weld-
ing Metals on December 7, that he was scheduled to begin
work on December 20, but did not actually start until De-
cember 23. Based on documentary evidence and affidavit tes-
timony of individuals employed by Welding Metals who are
neutral to this proceeding, I find that Evans was interviewed,
offered, and accepted a full-time position on December 1,
and began working for that company on December 20.
There is also disagreement as to when Evans last had con-
tact with the Employer prior to the election. Evans asserts
that he visited the shop in September and talked to Assistant
Manager Dave West about not having received an unemploy-
ment check for 2 weeks. At that time, Evans also inquired
at the Employer about a job opening for regional service
manager and applied for the position through his rehabilita-
tion counselor. Additionally, Evans asserts that the counselor
advised him on a monthly basis that the Employer had been
contacted and that no work was available for any type of re-
striction. The Employer does not deny that Evans submitted
an application for the regional service manager position, but
contends that it has not had any contact with him since July
and that it is unaware of any job inquiries from the rehabili-
tation counselor.
II. DISCUSSION AND ANALYSIS
In order to be eligible to vote in an NLRB-conducted elec-
tion, an individual must be employed in the appropriate bar-
gaining unit during the requisite payroll eligibility period and
on the day of the election. Case Egg & Poultry Co., 293
NLRB 941, 943 (1989); Plymouth Towing Co., 168 NLRB
651 (1969). An employee absent from work due to illness or
injury is presumed to retain both employee status and voting
eligibility. A party seeking to rebut that presumption must
make an affirmative showing that the employee either has re-
signed or has been discharged. K Van Bourgondien & Sons,
Inc., 294 NLRB 268, 274–275 (1989); Red Arrow Freight
Lines, supra, 278 NLRB 965 (1986); Iron Mountain Forge
Corp., 278 NLRB 255, 257 (1986); Edward Waters College,
supra, 307 NLRB 1321 (1992); Atlantic Dairies Cooperative,
283 NLRB 327 (1987); Wright Mfg. Co., 106 NLRB 1234,
1236 (1953).
The same standard is applied to employees who suffer
work-related injuries and are receiving workers’ compensa-
tion. Custom Bent Glass Co., 304 NLRB 373, 374 (1991);
Jennings & Webb, Inc., 288 NLRB 682, 696 (1988); J. P.
Stevens & Co., 247 NLRB 420, 482 (1980); Liston Alu-
minum, 296 NLRB 1181, 1203 (1989). In J. P. Stevens,
supra, employees on leave for 6 and 10 months and who
were receiving workers’ compensation were deemed eligible.
Similarly, in Atlantic Dairies, supra, an employee on medical
leave for 3 years was determined to be eligible.
Clearly, there is no evidence that Evans resigned or was
discharged. He attempted on two occasions to return to work,
albeit unsuccessfully. Further, no evidence was presented to
establish that his injuries were of such a nature that it would
not be possible for him ever to return to his former position.
The Employer, however, citing Advance Waste Systems,
supra, 306 NLRB 1020 (1992), argues that with respect to
the instant case, a reasonable expectation of future employ-
ment test should be applied. While the Board did not specifi-
cally pass on the language used by the administrative law
judge in Advance Waste, or her treatment of this issue as one
involving reasonable expectancy of recall, I believe the cor-
rect test in such cases is that set out in Red Arrow Freight,
supra, that employees on sick leave are presumed to retain
employee status and, hence, eligibility, ‘‘unless or until the
presumption is rebutted by an affirmative showing that the
employee has been discharged or has resigned.’’ The Board
added at footnote 4 therein:
The ‘‘reasonable expectation of employment’’ test . . .
applies to eligibility determinations involving laid-off
employees (Higgins, Inc., 111 NLRB 797, 799 (1955)),
although in some isolated cases the Board may have in-
advertently used such language in cases involving em-
ployees on sick or maternity leave (e.g., Sexton Welding
Co., 96 NLRB 454, 455, 456 (1951); Price’s Pic-Pac
Supermarkets, 256 NLRB 742, 743 (1981), enfd. 707
F.2d 236 (6th Cir. 1983)).
945THORN AMERICAS, INC.
See also Edward Waters College, supra at 1322 fn. 6, where
the Board reiterated that the ‘‘reasonable expectation of em-
ployment’’ test applies to laid-off employees, not those on
sick leave. Cf. A & J Cartage, Inc., 309 NLRB 319 (1992).
A question still remains as to whether Evans’ acceptance
of a position with another employer prior to the election ren-
ders him ineligible to vote. I find that it does not. In an anal-
ogous situation, employees who tender notice of their inten-
tion to retire or resign are eligible to vote if they are still
employed on the date of the election. Columbia Steel Casting
Co., 288 NLRB 306 fn. 4 (1988); Harold M. Pitman Co.,
303 NLRB 655 (1991); Computed Time Corp., 228 NLRB
1243, 1250–1251 (1977). Evans did not resign, nor was he
discharged prior to the date of the election. Further, Evans
did not commence working at Welding Metals until Decem-
ber 20, and events which occur after an election do not affect
an employee’s voting eligibility in that election. Pen-Mar
Packaging Corp., 261 NLRB 874 (1982). Accordingly, I find
that Evans enjoyed employee status both during the payroll
eligibility period and on the election date and that, therefore,
he is an eligible voter.