NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,453, THORN AMERICAS, INC. and LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO., (Aug. 31, 1994), National Labor Relations Board, (Aug 31, 1994)

THORN AMERICAS, INC. and LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO.

314 NLRB No. 155.Case No. 7-RC-20183. August 31, 1994

Before Gould, Stephens and Browning.

Ballots--Validity--Employee on Sick Leave.--Although an employer challenged the ballot of an employee on the ground that he had no reasonable expectation of returning to work after incurring a work-related injury and accepting a position with another employer, the ballot was to be opened and counted. The “reasonable expectation of employment” test applies to laid-off employees rather than to those on sick leave. An NLRB regional director properly applied the test set forth in Red Arrow Freight Lines, (1986) 1986-87 CCH NLRB ¶18,213, namely, that an employee absent from work due to illness or injury is presumed to retain both employee status and voting eligibility, unless the party seeking to rebut that presumption shows that the employee resigned or was discharged. The employer presented no such evidence and also failed to show that it would never be possible for the employee to resume his previous work.

Back reference: ¶2785.30.

Voter Eligibility--Laid-off Employees--Sick Leave Distinguished.--When absent from work due to illness or injury, an employee is presumed to retain both employee status and voting eligibility, unless the party seeking to rebut that presumption shows that the employee resigned or was discharged. To the extent that Advance Waste Systems, Inc., (1992) 1992-93 CCH NLRB ¶17,206, is ambiguous and can be construed as applying a “reasonable expectation of employment” test to sick leave cases, such a construction is disavowed. Section 9(c).

Back reference: ¶2785.454.

From Text of Board’s Decision

The National Labor Relations Board, by a three-member panel, has considered a determinative challenge in an election held on December 10, 1993, and the attached pertinent portions of the Regional Director’s report recommending disposition of it. The election 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 Regional Director’s findings and recommendations.

The Employer challenged the ballot of Gerald Evans on the ground that Evans had no reasonable expectation 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 Director applied the test set forth in Red Arrow Freight Lines, [1986-87 CCH NLRB ¶18,213] 278 NLRB 965 (1986) (an employee absent from work due to illness or injury is presumed to retain 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, [1992-93 CCH NLRB ¶17,206] 306 NLRB 1020, 1032 (1992), to support 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 Employer and find, in agreement with the Regional Director, 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 “permanently laid off” at the time of the election. [2] The Board has found that the “reasonable expectation of employment” test applies to eligibility determinations involving laid-off employees, but not employees on sick leave. Edward Waters College, [1992-93 CCH NLRB ¶17,370] 307 NLRB 1321, 1322 fn. 6 (1992).

To the extent that Advance Waste is ambiguous and can be construed as applying a “reasonable expectation of employment” test to sick leave cases, we disavow such a construction and adhere to the Red Arrow test in sick leave cases. See, e.g., Edward Waters College, 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, because 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 Director that the Employer’s challenge to Evans’ ballot should be overruled. We shall therefore direct the Regional Director to open and count Evans’ ballot, serve on the parties a revised tally of ballots, and issue the appropriate certification.