Associated Constructors

National Labor Relations Board - Board Decisions

Jan 9, 1995

315 N.L.R.B. 1255 (N.L.R.B. 1995)

1255
315 NLRB No. 165
ASSOCIATED CONSTRUCTORS
1 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to overrule
a hearing officer’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis
for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendations to overrule the Employer’s objection, to
sustain the challenge to the ballot of Ray Troumbly, and to overrule
the challenge to the ballot of Dale Carrier.
3 Member Cohen would sustain the challenge to Dale Currie’s bal-
lot. Currie is a construction equipment operator who had been on
sick leave 18 months as of the hearing. His last day of work for
the Employer was in late July or early August 1992. On August 5,
1992, he had a heart attack and subsequent angioplasty surgery. Al-
though Currie has indicated a desire to return to work for the Em-
ployer, his doctor has not released him to return to work and has
given him no projected date for such return. In these circumstances,
Member Cohen finds that Currie did not have a reasonable expect-
ancy of return as of the election date of December 3, 1993. See
Member Cohen’s dissent in Vanalco, Inc., 315 NLRB 618 (1994).
Member Cohen respectfully disagrees with Members Browning
and Truesdale (see below) that this type of eligibility issue will nec-
essarily involve difficult evaluations of conflicting medical evidence.
In any event, he notes that their test would permit an individual to
vote even where, as here, the medical evidence is clear and
uncontradicted. Finally, even in cases where there is a conflict in the
medical evidence, Member Cohen would prefer to resolve that con-
flict rather than have the results of an election turn on the vote of
an employee who has no reasonable expectancy of returning to the
unit.
For the reasons set forth in the majority opinion in Vanalco, Inc.,
supra, Members Browning and Truesdale subscribe to the fundamen-
tal rule governing the eligibility of an employee on sick or maternity
leave to vote in an election, as adopted by the majority in Red
Arrow Freight Lines, 278 NLRB 965 (1986), that there is a pre-
sumption of continuing employee status and eligibility to vote, un-
less rebutted by an affirmative showing that the employee has been
discharged or has resigned. They further note that the test proposed
by Member Cohen would inevitably involve the Board and its Re-
gions in the evaluation of medical evidence, and would open a new
avenue of litigation, possibly involving paid expert testimony, which
is beyond the traditional expertise of the agency and inimical to the
efficient and expeditious resolution of questions concerning represen-
tation. Indeed, they suggest that the reason why the medical evi-
dence in this case is, as Member Cohen points out, uncontradicted
is because under the straightforward Red Arrow rule, such medical
evidence is not relevant, is therefore not dispositive, and is therefore
not likely to be countered by equally irrelevant contrary medical evi-
dence. They further suggest, however, that under the ‘‘reasonable ex-
pectancy of return to the unit’’ standard espoused by Member
Cohen, such medical evidence would become dispositive, and would
therefore likely be countered by contrary medical evidence or opin-
ion in almost all cases involving dispositive challenges to the ballots
of employees on sick leave at the time of an election. In any event,
they affirm the hearing officer’s application of the Red Arrow rule
in this case and adopt his recommendation to overrule the challenge
to Currie’s ballot.
Peter E. O’Dovero, d/b/a Associated Constructors
and International Union of Operating Engi-
neers, Local 324, A, B, C, & D, AFL–CIO, Pe-
titioner. Case 30–RC–5522
January 9, 1995
DECISION, DIRECTION, AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held December 3, 1993, and the hearing
officer’s report recommending disposition of them. The
tally of ballots shows 2 for and 4 against the Peti-
tioner, with 1 void ballot and 15 challenged ballots, a
number sufficient to affect the results.
The Board has reviewed the record in light of the
exceptions and brief and has adopted the hearing offi-
cer’s findings1 and recommendations.2
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 30 shall, within 14 days of this Decision, Direc-
tion, and Order, open and count the ballots of Russ
Williams, Dale Currie,3 Kurt Spodeck, and Dale Car-
rier and thereafter prepare and serve on the parties a
revised tally of ballots. The Regional Director shall
then issue the appropriate certification.
ORDER
IT IS ORDERED that this proceeding is remanded to
the Regional Director for Region 30 for further appro-
priate action.