NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,516, VANALCO, INC. and VERNON RASMUSSEN et al., (Nov. 18, 1994), National Labor Relations Board, (Nov 18, 1994)

VANALCO, INC. and VERNON RASMUSSEN et al.

315 NLRB No. 83.Case No. 36-RD-1428. November 18, 1994

Before Gould, Stephens and Cohen.

Voter Eligibility--Laid-Off Employees--Employees on Sick Leave.--An employer’s representation election objection, based upon its belief that its employees on sick or disability leave were ineligible to vote, was overruled and those employees’ votes were counted. The disabled and sick employees had not quit or been discharged and continued to retain a sufficient community of interest in the unit to warrant a finding that they were eligible to vote. The Board rejected application of a test that eligibility be presumed unless the employee has no reasonable expectation of recall. Section 9(c).

Back reference: ¶2785.451.

From Text of Board’s Decision

The Board has long held that an employee on sick or disability leave is presumed to be eligible to vote absent an affirmative showing that the employee has resigned or been discharged. See, e.g., Wright Mfg. Co., 106 NLRB 1234, 1236-1237 (1953); Foley Mfg. Co., 115 NLRB 1205, 1206 (1956); Red Arrow Freight Lines, [1986-87 CCH NLRB ¶18,213] 278 NLRB 965 (1986); Thorn Americas, Inc., [1993-94 CCH NLRB ¶15,453] 314 NLRB No. 155 (Aug. 31, 1994). At the same time the Board has found that an employee who is laid off is presumed eligible unless the employee has no reasonable expectation of recall. See, e.g., Waterman Steamship Corp., 78 NLRB 21, 24 (1948). Our dissenting colleague urges that we apply the same test to employees on sick or disability leave that we apply to laid-off employees. Since layoffs can range from very temporary to permanent, that test is necessary to determine the nature of the layoff. We do not believe that such a test, with the additional litigation it requires, [1] is warranted regarding employees on sick or disability leave. Rather, in our view, if these employees have not quit or been discharged, they continue to retain a sufficient community of interest in the unit to warrant a finding that they are eligible to vote. [2]

[Dissent]

Member Cohen, dissenting: I would remand this proceeding to the hearing officer to resolve credibility regarding the voting eligibility of the eight challenged voters who the Employer contends are ineligible because of extended medical disabilities. My colleagues conclude that the presumption of eligibility of an employee on sick or disability leave is rebutted only by an affirmative showing that the employee has resigned or has been discharged. Concededly, there are Board cases that support that view. See Red Arrow Freihgt Lines, 278 NLRB 965 fn. 4 (1986), and cased cited therein. However, I respectfully disagree with those cases. In my view, the real issue is whether the employee has a reasonable expectancy of returning to the unit.

In cases involving a laid-off employee the eligibility test is whether the employee has a reasonable expectancy of returning to the unit. [3] I do not think that a different rule should apply to an employee on sick leave. In both cases, the employees are absent from work. The fact that the one absence is for economic reasons and the other is for medical reasons is not a relevant distinction. Rather, the relevant distinction is between those who have a reasonable expectancy of return (whether because of economic or medical factors) and those who do not. That is the test that will measure whether the employees have a community of interest with the active employees. Accordingly, I would apply the “reasonable expectancy” test in both circumstances. If the employee has no such reasonable expectancy, I would find that the employee is ineligible to vote, even if the employee has not resigned and has not been discharged. See Member Babson’s concurrence in Red Arrow, supra. The absence of a resignation and/or a discharge may be relevant to the ultimate question of whether there is reasonable expectancy of return, but it is not dispositive of that issue. [4]

The court’s decision in Whiting Corp., 99 NLRB 117, revd. [22 LC ¶67,273] 200 F.2d 43 (7th Cir. 1952), cited by my colleagues, does not require a contrary result. The court held that the Board’s test regarding disabled employees was a permissible one. The court did not suggest that the test was a required one. In further response to my colleagues, I note that an inquiry into “reasonable expectation” is often made by the Board in the context of laid-off employees, irrespective of whether these persons are technically carried on the rolls as employees. I see no reason why the same inquiry cannot be made in the context of disabled employees irrespective of whether they are technically carried on the roll as employees.

Accordingly, I would remand for determination of whether the employees in question had a reasonable expectancy of return. [5]