Red Arrow Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1986

278 N.L.R.B. 965 (N.L.R.B. 1986)

RED ARROW FREIGHT LINES
Red Arrow Freight Lines, Inc. and General Drivers,
Warehousemen and Helpers Local Union 745
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Petitioner. Case 16-RC-
8751
13 March 1986
DECISION AND DIRECTION
BY MEMBERS DENNIS , JOHANSEN, AND
BABSON
The National Labor Relations Board , by a three-
member panel , has considered determinative chal-
lenges in an election " held 12 April 1985 and the
hearing officer 's report recommending disposition
of them . The election was conducted pursuant to a
Stipulated Election Agreement . The tally of ballots
shows 12 for and 12 against the Petitioner, with 5
challenged ballots.
The Board has reviewed the record in light of
the exceptions and briefs and has adopted2 the
hearing officer's findings and recommendations as
modified.
The Petitioner challenged Lucille Miller's ballot,
contending that she had retired or was disabled and
unable to return to work . The Employer contends
that the hearing officer applied an incorrect legal
standard in sustaining the challenge to Miller's
ballot . The hearing officer found Miller ineligible
to vote because she did not have a reasonable ex-
pectation of returning to work . The Employer
argues that an employee on sick leave is presumed
eligible to vote absent evidence that the employee
has been terminated or has resigned . The Employer
submits that there is no such evidence and, there-
fore , Miller is an eligible voter. We agree with the
Employer.
Miller worked in a unit position until the payroll
period ending 22 September 1984, when she went
on sick leave from which she has not returned to
work.3 She received $340 vacation pay during the
' Although the Employer timely filed objections to the election, it
moved at the hearing to withdraw its objections in their entirety. The
hearing officer granted the motion , as neither the Petitioner nor the Gen-
eral counsel objected to withdrawal. No evidence was presented in sup-
port of the objections. /
s Absent exceptions, we adopt, pro forma, the hearing officer's recom-
mendations that the challenges to the ballots of Norris Hayes and Ken
Eubanks be sustained and that the challenge to Emma Greer's ballot be
overruled.
a Norris Hayes, whom the hearing officer found to be a statutory su-
pervisor, testified that, around Christmas 1984, Office Manager Doris
Walters told him Miller's eyesight had failed and she would not be able
to return to work . Hayes stated that in January 1985 Walters informed
him Miller had been declared legally blind, would not be returning, and
would be forced into disability retirement.
965
payroll period ending 26 January 1985 and $68
birthday pay during the payroll period ending 6
April 1985. She continued on the Employer's pay-
roll through the election held 12 April 1985.
The Employer provides employees unable to
work because of illness up to 13 weeks of disability
payments . The disability payments end after 13
weeks, but benefits such as holiday pay, vacation
accrual , and insurance continue until the Employer
approves an application for disability retirement, or
until it receives a medical report that the employee
can no longer work.
Miller has received 13 weeks of disability pay-
ments and continues to accumulate time for vaca-
tion credit and receives paid holidays. Her position
remains available for her. Neither Miller nor her
physician has requested that Miller be placed on
disability retirement . There is nothing in Miller's
personnel file showing that she does not intend to
return to work.
The fundamental rule governing the eligibility of
an employee on sick or maternity leave is that he
or she is presumed to continue in such status unless
and until the presumption is rebutted by an affirma-
tive showing that the employee has been dis-
charged or has resigned .4 Here, the evidence
shows that Miller was on sick leave and continued
on the Employer 's payroll through the 12 April
1985 election . She did not quit, nor was she dis-
charged, before the election . Accordingly, we
overrule the challenge to Miller 's ballot and direct
that her ballot , along with Emma Greer's, be
opened and counted.5
4 Sylvania Electric Products, 119 NLRB 824, 832 (1957), Wright Mfg.
Co., 106 NLRB 1234 , 1236-1237 (1953). See NLRB v. Newly Weds Foods,
758 F.2d 4 (1st Cir. 1985).
Member Babson agrees that on the particular facts here the Petitioner
has not rebutted the presumption of Miller's eligibility to vote in the elec-
tion. In so doing, he does not join his colleagues ' view that the presump-
tion of eligibility of a disabled employee or an employee on sick leave
may be rebutted only by an affirmative showing that the employee has
resigned or has been discharged . Rather, in circumstances where it is not
clear whether such an employee has retained his status as an employee,
Member Babson, in accord with prior Board precedent , additionally
would consider evidence concerning the employee's reasonable expecta-
tion of future employment and would find the presumption of eligibility
rebutted where it is shown by clear and convincing evidence that, as of
the time of the election, the employee had no such reasonable expecta-
tion . In overruling the challenge to Miller's ballot , he notes that the Peti-
tioner's contention that Miller had no reasonable expectation of future
employment is based merely on her absence from work for a period of
approximately 7 months prior to the election and on hearsay testimony
concerning Miller 's physical condition.
a The hearing officer recommended that the challenge to Miller's
ballot be sustained on the ground that Miller's presumption of eligibility
was rebutted because she had no "reasonable expectation that she would
be able to resume her employment."
The "reasonable expectation of employment" test, however, applies to
eligibility determinations involving laid-off employees (Higgins Inc., 111
NLRB 797, 799 (1950), although in some isolated cases the Board may
have inadvertently used such language in cases involving employees on
sick or maternity leave (e.g., Sexton Welding Co., 96 NLRB 454, 455, 456
(1951); Price 's Pic-Pac Supermarkets, 256 NLRB 742, 743 (1981), enfd. 707
F.2d 236 (6th Cir. 1983)).
')74 ATT DA M.. 127
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION Greer and Lucille Miller and prepare and serve on
IT IS DIRECTED that the Regional Director shall, the parties a revised tally of ballots. Thereafter, the
within 10 days from the date of this Decision and Regional Director shall issue the appropriate certi-
Direction, open and count the ballots of Emma fication.