Pepsi-Cola Co.

National Labor Relations Board - Board Decisions

Jan 19, 1995

315 N.L.R.B. 1322 (N.L.R.B. 1995)

1322
315 NLRB No. 174
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Petitioner 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 Red Arrow, the Board held that the ‘‘fundamental rule govern-
ing the eligibility of an employee on sick leave or maternity leave
is that he or she is presumed to continue in such status unless and
until the presumption is rebutted by an affirmative showing that the
employee has been discharged or has resigned.’’ Id. at 965.
3 All subsequent references to Reese are to Paul Reese Sr.
4 Red Arrow, supra.
5 Reese was subpoenaed to appear at the hearing but was unable
to do so because of shortness of breath. Because of the parties’ co-
operation concerning evidentiary stipulations, Reese was excused
from the subpoena by the hearing officer.
6 The Employer contributed $2964.63 toward the cost of Reese’s
1994 benefits. Reese also receives Social Security disability benefits.
Pepsi-Cola Company and International Ladies’
Garment Workers’ Union, Local 170, AFL–
CIO, Petitioner. Case 6–RC–10981
January 19, 1995
DECISION, DIRECTION, AND ORDER
BY MEMBERS BROWNING, TRUESDALE, AND
COHEN
The National Labor Relations Board, by a three-
member panel, has considered determinative chal-
lenged ballots in an election held December 29, 1993,
and the hearing officer’s report recommending disposi-
tion of them. The election was conducted pursuant to
a Stipulated Election Agreement. The tally of ballots
shows 21 for and 20 against the Petitioner, with 3 de-
terminative challenged ballots.
The Board has reviewed the record in light of the
exceptions and briefs, and has decided to adopt in part
and reverse in part the hearing officer’s findings1 and
recommendations.
We adopt the hearing officer’s findings and rec-
ommendation that the challenges to the ballots of Don
Wolinski and Donald McCleary be overruled and that
their ballots be opened and counted. For the reasons
set forth below, we do not adopt the hearing officer’s
recommendation that the challenge to the ballot of
Paul Reese Sr. be sustained.
As indicated, Paul Reese Sr. cast a challenged bal-
lot. But the Regional Director’s subsequent order di-
recting hearing indicates that the challenged ballot is
that of Paul Reese Jr. The parties agreed at the hearing
that the challenged voter in question is Paul Reese Sr.
Thus, the Employer has requested that the Regional
Office make certain that the challenged ballot being
held is that of Paul Reese Sr.
If the name on the challenged ballot envelope is
Paul Reese Jr., then the ballot must be opened and
counted, because there was no challenge to his ballot.
And if the name on the envelope is Paul Reese Sr.,
then it too must be opened and counted, because for
the reasons discussed below, we find merit in the Em-
ployer’s exception to the hearing officer’s failure cor-
rectly to apply the Board’s rule in Red Arrow Freight
Lines, 278 NLRB 965 (1986),2 and we therefore over-
rule the challenge to the ballot of Paul Reese Sr.
I. FACTUAL BACKGROUND
The Petitioner challenged the ballot of Paul Reese
Sr.3 on the ground that he is disabled and has no rea-
sonable expectation of returning to work. The Em-
ployer asserts that Reese is eligible to vote because he
remains an active employee on disability leave and he
has not been terminated, nor has he resigned. We agree
with the Employer.4
Paul Reese Sr. worked in a unit position as ware-
houseman for many years. In January 1992, he went
on short-term disability leave for lung cancer. After
exhausting 26 weeks of short-term disability benefits,
Reese applied for and was placed on long-term disabil-
ity under the Employer’s insurance program.
An attending physician’s statement dated March 10,
1992, that was received in evidence and prepared in
connection with Reese’s application, states that Reese
suffers from lung cancer that has resulted in: ‘‘Severe
limitation of functional capacity; incapable of mini-
mum (sedentary) activity.’’ The doctor’s statement also
indicates that Reese is totally disabled; that no fun-
damental or marked change in his condition is ex-
pected (although Reese’s condition had improved from
the previous month with treatment, including radiation
therapy); and that Reese is not suitable for occupa-
tional rehabilitation. The parties stipulated that had this
prognosis been updated it would have remained the
same. The parties also stipulated that had Reese testi-
fied, he would have stated: ‘‘That he still wants to re-
turn, he has not given up and he is still fighting.’’5
Gregory Horton, the employee relations manager for
Johnstown until December 1992, testified that he de-
cided not to terminate Reese when he went on long-
term disability. While on long-term disability, Reese
continues to receive mailings sent to active employees,
including newsletters and promotional items, and main-
tains contact with the human resources department
about benefit questions. More importantly, Reese con-
tinues to receive the same benefits that he received as
an active working employee. Perhaps the most impor-
tant benefit still received is the Employer’s ‘‘Flex Ben-
efits’’ or ‘‘Benefits Plus’’ program, a cafeteria plan
under which the Employer contributes toward the cost
of a variety of health and welfare benefit options se-
lected by the employee.6 In fact, Reese executed a
1994 Benefits Plus Choices Confirmation form that
summarizes the coverages he selected for himself and
1323PEPSI-COLA CO.
7 We find merit in the Employer’s exception to the hearing offi-
cer’s finding that employees on disability may only continue with
the coverage they previously had and may not elect increases in cov-
erage. There is no record evidence to support this finding.
8 Accordingly, we find merit in the Employer’s exception to the
hearing officer’s oblique finding that, ‘‘There is no evidence in the
record that his job has been filled on other than a permanent basis.’’
his wife for calendar year 1994.7 This form indicates
that Reese is an eligible employee whose work loca-
tion is Johnstown, Pennsylvania.
The Employer maintains an ‘‘Employee Profile’’ for
each employee, containing basic personnel information.
Reese’s ‘‘Employee Profile’’ shows that on the elec-
tion date he was an active employee on full-time sta-
tus—designated by an ‘‘F’’ after ‘‘status’’—employed
as a warehousemen in the Johnstown facility. The
record does not show whether Reese’s warehouse job
has been filled on any basis—temporary, permanent, or
otherwise.8 The record reflects that if Reese had been
terminated, his ‘‘Employee Profile’’ would have been
designated by a ‘‘T’’ after ‘‘status’’—not full time.
Merritt Saunders, the current human resource man-
ager for the Johnstown facility, testified that when he
requested a listing of active employees from the Em-
ployer’s computer data base to submit to the Board as
the Excelsior list Reese’s name appeared on that list.
The Stipulated Election Agreement defines ‘‘Eligible
Voters’’ to include employees who did not work dur-
ing the payroll eligibility period (the week ending No-
vember 20, 1993) ‘‘because they were ill.’’ It is undis-
puted that Reese did not work during the payroll pe-
riod because he was ill and on disability leave.
II. THE HEARING OFFICER’S ANALYSIS
The hearing officer set forth the fundamental rule
governing the eligibility of an employee on sick leave
at the time of an election: that the employee is pre-
sumed to continue in that status until the presumption
is rebutted by an affirmative showing that the em-
ployee has been discharged or has resigned. Red Arrow
Freight Lines, supra. Accord: A & J Cartage, 309
NLRB 319 (1992); and Atlanta Dairies Cooperative,
283 NLRB 327 (1987). The hearing officer opined that
the Board and the courts have allowed some narrow
range of flexibility when applying this rule where the
facts demand it. See NLRB v. Economics Laboratory,
Inc., 857 F.2d 931 (3d Cir. 1988); Advance Waste Sys-
tems, 306 NLRB 1020, 1032 (1992).
As noted by the hearing officer, the court in Eco-
nomics Laboratory denied enforcement of a Board
Order in an unpublished 8(a)(5) case because the total-
ity of the overwhelming evidence indicated that the
employment of four individuals on long-term disability
had been terminated. The court did find that the long-
term disability recipients continued to receive health
benefits from their employer and its insurance carrier,
and that they were not specifically notified of their dis-
charge. But the court further found that while these
facts were consistent with the employer’s adoption of
a humane disability program, they were not necessarily
indicative of continued employee status. The court stat-
ed that the Regional Director had apparently failed to
consider the possibility that the employees in question
had been constructively terminated, so as to rebut the
Red Arrow presumption on that basis. 857 F.2d at 937.
On remand, the Board applied the court’s decision as
the law of the case. 286 NLRB No. 66 (1989) (not re-
ported in the bound volumes).
In Advance Waste Systems, the Board adopted with-
out comment the judge’s finding that a disabled work-
er who could not procure medical certification to per-
form weight-bearing tasks had an ‘‘open-ended’’ dis-
ability with no definite time frame for return to work
and no reasonable expectation of recall on election
day. Therefore, he was found ineligible to vote in the
election.
The hearing officer found Reese’s case to be analo-
gous to Advance Waste Systems because Reese’s medi-
cal evaluation indicates that he is wholly unable to per-
form his work duties and provides absolutely no indi-
cation that his status will change. Therefore, notwith-
standing the Employer’s retention of Reese in its bene-
fit programs, the hearing officer found no sound basis
for concluding that Reese will ‘‘regain a community of
interest with employees in the bargaining unit’’ in the
foreseeable future. Accordingly, the hearing officer
sustained the Petitioner’s challenge to Reese’s ballot
and found him ineligible to vote in the election.
III. RATIONALE FOR REVERSAL
Contrary to the hearing officer, we find that the
facts here fail to warrant any departure from, or expan-
sion in the application of, the Board’s well-established
rule in Red Arrow, as refined and made applicable to
employees on long-term disability. See Atlanta Dairies
Cooperative, Supra. Under this rule, Reese is presumed
to continue to be a disabled employee until the pre-
sumption is rebutted by a showing that he has been
discharged or resigned. As explained below, the pre-
sumption remains unrebutted here. Consequently, we
find Reese eligible to vote.
In Atlanta Dairies, the Board reversed a hearing of-
ficer’s determination that a disabled employee
(Winsett) was ineligible to vote because his disability
precluded him from working for several years and he
had no reasonable expectation of returning to work.
Because the evidence failed to show that Winsett re-
tired or was discharged before the election, the Board
overruled the challenge to his ballot.
The facts in Atlanta Dairies are strikingly similar to
those present here. In fact, Reese and Winsett share
many common characteristics. Both disabled individ-
uals worked in unit positions for many years before
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Thorn Americas was issued subsequent to the hearing officer’s
April 11, 1994 report in the instant case.
taking disability leave a few years before a representa-
tion election. Their physicians had not declared them
well enough to return to work, but both individuals in-
tended to return when able. Reese and Winsett were
retained in their employers’ health insurance programs
and they drew Social Security disability benefits. Both
of them maintained regular contact with their employer
concerning their health condition. Testimony from their
employers established a company policy to carry dis-
abled and nonworking employees on employment rolls
until retirement. Finally, Reese, like Winsett in Atlanta
Dairies, did not retire, nor was he discharged before
the election. Accordingly, the presumption that Reese
retains his status as an employee on disability leave re-
mains unrebutted.
In contrast, in NLRB v. Economics Laboratory, re-
lied on by the hearing officer, the court in reversing
the Board found overwhelming evidence amounting to
constructive employment termination. The four individ-
uals on long-term disability at issue there had been re-
moved from the payroll and employee status reports.
They had been replaced according to the terms of the
collective-bargaining agreement with permanent em-
ployees. In addition, the nature of the employer’s
means of communicating with the disabled individuals
indicated that it no longer considered them to be em-
ployees. The Board accepted the remand and applied
the court’s decision as the law of the case.
Here, however, Reese is carried on the active em-
ployee list, there is no evidence of a replacement, and
the nature of the Employer’s means of communicating
with Reese, as described at the hearing, clearly shows
that the Employer intended to retain Reese as a dis-
abled employee.
The hearing officer’s reliance on Advance Waste
Systems is likewise misplaced. As of the day of the
election in that case, the employee in relevant question
(Martucci) was permanently laid off, because the em-
ployer did not expect a position to be available for
him. 306 NLRB at 1027. Thus, there was a basis in
that case for the application of the ‘‘reasonable expec-
tation of recall’’ standard. In the instant case, however,
Reese has not been permanently laid off. For the rea-
sons set forth in Thorn Americas, Inc., 314 NLRB 943
(1994), we disavow any construction of Advance
Waste Systems as appropriately applying a ‘‘reasonable
expectation of employment’’ test to sick leave cases,
and we continue to adhere to the Red Arrow test in
such cases, including the one at hand.9
We find that Reese was on disability leave at the
time of the election and did not quit, retire, or resign,
nor was he discharged. Accordingly, applying the Red
Arrow rule, we overrule the challenge to Paul Reese
Sr.’s ballot and direct that it be opened and counted.
DIRECTION
IT IS DIRECTED that the Regional Director shall,
within 14 days from the date of this Decision, Direc-
tion, and Order, open and count the ballots of Don
Wolinski and Donald McCleary.
IT IS FURTHER DIRECTED that the Regional Director
shall ascertain whether the remaining challenged ballot
is that of Paul Reese Sr. or Paul Reese Jr. If it is either
of them, then the Regional Director shall open and
count that ballot also, and prepare and serve on the
parties a revised tally of ballots. Thereafter, the Re-
gional Director shall issue the appropriate certification.
ORDER
It is ordered that the matter is referred to the Re-
gional Director for Region 6 for further processing
consistent with this Decision, Direction, and Order.
MEMBER COHEN, dissenting in part.
Contrary to my colleagues, I would affirm the hear-
ing officer and sustain the Petitioner’s challenge to the
ballot of Paul Reese Sr. I do not agree with my col-
leagues that the presumed voting eligibility of an em-
ployee on leave because of sickness or disability
should be rebuttable only by a showing that the em-
ployee has resigned or has been discharged. Rather, I
believe that the eligibility of that employee should turn
on whether he/she has a reasonable expectancy of re-
turning to the unit. See my dissent in Vanalco, Inc.,
315 NLRB 618 (1994).
In the instant case, Paul Reese Sr. is permanently
disabled. The stipulated medical evidence establishes
that he is not suitable for occupational rehabilitation
and has no reasonable expectancy of returning to work.
Accordingly, I would sustain the challenge to his bal-
lot.