Agar Supply Co.

National Labor Relations Board - Board Decisions

Sep 6, 2002

337 N.L.R.B. 1267 (N.L.R.B. 2002)

AGAR SUPPLY CO. 1267
Agar Supply Company, Inc. and Teamsters, Local 25,
a/w International Brotherhood of Teamsters,
AFL–CIO, Petitioner. Case 1–RC–21417
September 6, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board has considered
challenges to an election held on October 25, 2001, and
the Regional Director’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 59 for and 59 against the Petitioner with three
challenged ballots, which are determinative of the out-
come of the election.1
The Board has reviewed the report on challenged bal­
lots, pertinent portions of which are attached as Appen­
dix, and the Employer’s exceptions and brief, and has
adopted the Regional Director’s findings2 and recom-
mendations.3 Accordingly, we shall overrule the chal­
lenge to Robert Koch’s ballot and direct that it be opened
and counted.
ORDER
IT IS ORDERED that this proceeding is remanded to the
Regional Director for further appropriate action.
MEMBER COWEN, dissenting.
Contrary to my colleagues, I would sustain the chal­
lenge to Koch’s ballot. In December 2000, Koch began
receiving workers’ compensation benefits and was absent
from his bargaining unit position due to his injuries. In
January 2001, Koch returned to work and took a nonunit
position. In March 2001, he again ceased working and
1 No party has filed exceptions to the Regional Director’s recom­
mendation to sustain the challenges to the ballots of Moses Massa and
Jamie Medeiros.
2 Contrary to our dissenting colleague, we agree with the Regional
Director, for the reasons set forth in her report, that the Employer has
not shown that Koch was transferred to a nonunit position when he was
temporarily assigned to light duty work as a warehouse clerical em­
ployee.
3 Member Bartlett agrees with former Chairman Hurtgen’s dissent in
Supervalu, Inc., 328 NLRB 52 (1999), that the appropriate test for
determining the eligibility of an employee on sick leave is the “reason-
able expectancy of return” test, the same test that is applied to employ­
ees laid off for economic reasons. See also Vanalco, Inc., 315 NLRB
618 (1994) (Member Cohen dissenting). Thus, he disagrees with the
prevailing test set forth in Red Arrow Freight Lines, 278 NLRB 965
(1986), which presumes that an employee on sick leave is eligible to
vote unless it is affirmatively shown that the employee has resigned or
been discharged. However, in the absence of a three-Member Board
majority to overrule Red Arrow, and in order to avoid unduly delaying
a final determination of the election results, Member Bartlett joins in
adopting the Regional Director’s finding that, under the Red Arrowtest,
employee Robert Koch was eligible to vote in the election.
has not returned to work. Inasmuch as Koch most re­
cently was employed in a nonunit position, he was ineli­
gible to vote in the election. In my view, Red Arrow is
inapplicable to this situation, and I find it unnecessary to
pass on its validity.
APPENDIX
REPORT ON CHALLENGED BALLOTS
Pursuant to a Stipulated Election Agreement executed by the
Petitioner and by the Employer on September 21, 2001,1 and
approved by the undersigned on September 25, an election was
conducted on October 25 among certain employees 2 of the
Employer.
The tally of ballots cast at the election is as follows:
Approximate number of eligible voters 128
Void ballots 0
Votes cast for Petitioner 59
Votes cast against participating labor organization 59
Valid votes counted 118
Challenged ballots 3
Valid votes plus challenged ballots 121
The challenged ballots are determinative of the results of the
election. At the election, the Employer challenged the ballots of
Moses Massa and Jamie Medeiros on the ground that they had
been terminated. The Board agent conducting the election
challenged the ballot of Robert Koch on the ground that his
name did not appear on the Excelsior list of eligible voters.
Pursuant to Section 102.69 of the Board’s Rules and Regula­
tions, an investigation of the challenged ballots was conducted.
As a result of the investigation, I find, for the reasons discussed
below, that Moses Massa and Jamie Medeiros are not eligible
voters and, accordingly, I recommend that the challenges to
their ballots be sustained. I further find that Robert Koch is an
eligible voter and, accordingly, I recommend that the challenge
to his ballot be overruled, that his ballot be opened and counted,
and that a revised tally of ballots be issued.3
1 All dates herein are 2001 unless otherwise indicated.
2 The appropriate collective-bargaining unit, as set forth in the Stipu­
lated Election Agreement, is:
All full-time and regular part -time warehouse selectors, warehouse
receivers, warehouse replenishers, warehouse selector trainees,
warehouse truck strippers, fork lift operators, drivers, yard drivers,
driver trainee, building maintenance personnel and warehouse jani­
torial employees, but excluding all supervisors, managers, office
clericals, warehouse clericals and guards as well as wholesale general
sales persons, wholesale F RI sales persons, corporate administration,
corporate data processors, wholesale credit persons, truck mainte­
nance superintendent, truck routers dispatchers, corporate accounting
personnel, wholesale buying personnel, warehouse supervisors, in­
ventory control, wholesale payable persons, wholesale account per-
sons and wholesale administrative employees.
3 Objections to conduct affecting the results of the election were
timely filed by the Pet itioner on October 31. No objections were filed
by the Employer. If a revised tally of ballots shows that the Petitioner
has not received a majority of valid votes cast, then we will further
process the Petitioner’s objections.
337 NLRB No. 191
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moses Massa and Jamie Medeiros
Moses Massa (Massa) and Jamie Medeiros (Medeiros) were
both terminated by the Employer prior to the date of the elec­
tion. On October 23, Medeiros filed an unfair labor practice
charge in Case 1–CA–39445, alleging that the Employer vio­
lated Section 8(a)(3) and (1) of the National Labor Relations
Act by terminating him on October 8. By letter dated Decem­
ber 20, 2001, I approved the withdrawal of the charge in Case
1–CA–39445, and the case was closed. On November 6, 2001,
Massa filed an unfair labor practice charge in Case 1–CA–
39477, alleging that the Employer violated Section 8(a)(3) and
(1) of the National Labor Relations Act by terminating him on
October 16. By letter dated December 18, 2001, I approved the
withdrawal of the charge in Case 1–CA–39477, and the case
was closed. In the absence of a complaint based on an unfair
labor practice charge, the Board will not normally consider
unfair labor practice issues involving discharges in objections
or challenges proceedings. Texas Meat Packers, 130 NLRB
279 (1961), and McLean Roofing Co., 276 NRLB 830 fn. 1
(1985). In view of the withdrawal of the charges concerning
the terminations of Massa and Medeiros, their discharges must
be presumed to be lawful and cannot be contested in this chal­
lenged ballot procedure.
The test for determining eligibility to vote in an NLRB elec­
tion is an individual’s status on both the eligibility date and the
date of the election. Nichols House Nursing Home, 332 NLRB
1428 (2000), citing Roy N. Lotspeich Publishing, 204 NLRB
517 (1973). Accordingly, as they were no longer employed on
the date of the election, Massa and Medeiros must be found to
be ineligible to vote in the election. Spray Sales & Sierra Roll­
ers, 225 NLRB 1089 (1976). Accordingly, I recommend that
the challenges to the ballots of Massa and Medeiros be sus­
tained.
Robert Koch
The Petitioner maintains that Robert Koch was employed in
a unit position, was on workers’ compensation at the time of
the election and, therefore, was eligible to vote. The Employer
takes the position that, at the time of the election, Koch was not
an active employee and was not employed in a unit position,
and, therefore, he was ineligible to vote.
Koch was first employed on March 19, 2000, in the position
of order selector in the warehouse. This job title is included in
the unit description in the Stipulated Election Agreement
signed by the parties. (See footnote 2).
On September 8, 2000, Koch sustained an on-the-job injury.
He was absent from work for about 2 weeks in late September
and early October 2000 as a result of his injuries. From De­
cember 7, 2000, to January 29, 2001, Koch was again absent
and received workers’ compensation benefits. He returned to
active status on a light duty assignment on January 29, and was
assigned the duties of a warehouse clerical. This job title is
specifically excluded from the unit by the election agreement.
On about March 1, Koch again ceased working due to his pre-
existing injuries. He again received workers’ compensation
benefits at that time and remained in that status as of and after
the date of the election.
The Employer argues that since Koch was not “qualified” to
do unit work on the payroll eligibility date and since, based on
the medical information then available, it was not “reasonably
foreseeable” that he could ever perform unit work again, he was
properly excluded from the Excelsior list and is not an eligible
voter. The Employer also argues that if Koch is to be consid­
ered an active employee, than he should still be deemed to be
ineligible because his last period of work for the Employer
involved warehouse clerical work, a nonunit position.
The fundamental rule governing the eligibility of an em­
ployee on sick or maternity leave is that an employee is pre­
sumed to continue in such status unless and until the presump­
tion is rebutted by an affirmative showing that the employee
has been discharged or has resigned. Red Arrow Freight Lines,
Inc., 278 NLRB 965 (1986); and Sylvania Electric Products,
119 NLRB 824, 832 (1957). This same standard applies to
employees on workers’ compensation benefits. Douglas Foods
Corp., 330 NLRB 821 (2000).
The “reasonable expectation of employment” test applies to
eligibility determinations involving laid-off employees. Hig­
gins, Inc., 111 NLRB 797, 799 (1955). Although in some iso­
lated cases the Board may have inadvertently used such lan­
guage in cases involving employees on sick or maternity leave,
that standard no longer applies to these situations. See Red
Arrow, 278 NLRB fn. 5; and Custom Bent Glass Co., 304
NLRB 373 (1991).
Further, neither the nature of the injuries nor the possibility
that the employee might ultimately be forced to seek employ­
ment of a different nature changes this principle. Id. The fact
that Koch performed light duty work for about a month in early
2001 in an attempt to accommodate his injuries does not signify
the termination of his regular unit position, absent some spe­
cific indication to the contrary. There is no evidence that this
change in duties was of a permanent or voluntary nature, or for
any other reason than Koch was physically unable to perform
his regular duties as a result of his injuries at that time.
Accordingly, the evidence is insufficient to establish that Koch
discharged, resigned, or was transferred to a nonunit position.
Therefore, inasmuch as the evidence establishes that Robert
Koch was still employed in a unit position at the time of the
election, I find that he was eligible to vote in the election. Ac­
cordingly, I recommend that the challenge to the ballot of
Robert Koch be overruled.
AGAR SUPPLY CO. 1269
Recommendation
Having found merit to the challenges to the ballots of Moses
Massa and Jamie Medeiros, I recommend that those challenges
be sustained and that their ballots not be opened and counted.
Having found Robert Koch to be eligible to vote, I recommend
that the challenge to his ballot be overruled, that his ballot be
opened and counted, and that a revised tally of ballots be is-
sued.4
4 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this report may be filed with the Board in
Washington, D.C. Exceptions must be received by the Board in Wash­
ington by January 18, 2002.
Under the provisions of Section 102.69 (g) of the Board’s Rules and
Regulations, documentary evidence, including affidavits, which a
party has timely submitted to the Regional Director in support is [of]
its position on challenged ballots, which are not included in this report,
are not part of the record before the Board unless appended to the ex­
ceptions or opposition thereto which the party files with the Board.
Failure to append to the submission to the Board copies of evidence
timely submitted to the Regional Director and not included in this re-
port shall preclude a party from relying upon that evidence in any sub-
sequent related unfair labor practice proceeding.