Supervalu, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1999

328 N.L.R.B. 52 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52
Supervalu, Inc. and Chauffeurs, Teamsters and Help-
ers, Local 26 affiliated with the International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. Case 33–RC–4278
April 15, 1999
DECISION AND DIRECTION
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections and challenges
to an election held April 3, 1998, and the hearing offi-
cer’s report recommending disposition of them. The elec-
tion was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 72 for and 70
against the Petitioner, with 10 challenged ballots, a suffi-
cient number to affect the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations,2 and we shall remand
this matter to the Regional Director to take such action
consistent with this Decision and Direction.
Under well-established Board policy, an employee on
sick or disability leave is presumed to be eligible to vote
absent an affirmative showing that the employee has re-
signed or been discharged. See Red Arrow Freight
Lines, 278 NLRB 965 (1986); Pepsi-Cola Co, 315
NLRB 1322 (1995). In the instant case, we agree with
the hearing officer that the Employer has failed to estab-
lish that employee Gary Robertson resigned or was dis-
charged.3
Our dissenting colleague would abandon the Board’s
Red Arrow test, and instead apply the same “reasonable
expectancy of return” test applicable to employees who
are laid off. The Board, with court approval, has uni-
formly rejected the test proposed by the dissent. See
Pepsi-Cola Co., 315 NLRB 1322 (1995); Associated
Constructors, 315 NLRB 1255 (1995); Vanalco, Inc.,
315 NLRB 618 (1994); Thorn Americas, Inc., 314 NLRB
943 (1994); Cavert Acquisition Co. v. NLRB, 83 F.3d
598 (3d Cir. 1996); NLRB v. Newly Weds Foods, 758
F.2d 4, 8 (1st Cir. 1985); and Medline Industries, Inc. v.
NLRB, 593 F.2d 788 (7th Cir. 1979). Accordingly, we
adhere to the settled and time-tested Red Arrow rule.

1 We agree with the hearing officer’s finding that terminated em-
ployees Greer and Burchett had no reasonable expectation of recall as
of the date they were informed by Transportation Manager Stigall that
they were being taken off of the Employer’s part-time driver recall list,
and that they were ineligible to vote in the subsequent representation
election. We rely on the hearing officer’s implicit crediting of Stigall’s
testimony that he had removed their names because they had refused
runs and that he had directed the dispatchers not to call them for work.
We also rely on the hearing officer’s finding that both Greer and
Burchett were informed of their removal before the election. Accord-
ingly, we affirm the hearing officer’s recommendation to sustain the
challenges to their ballots.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s overruling of the challenge to the ballot of employee Steve
Hodges; the withdrawal of challenges to the ballots of employees Roger
Burke, Gerald Kocher, Walter Reid, James Robertson, Randy Endsley,
and Stan Frerichs; the withdrawal of all of the Employer’s objections;
and the overruling of all of the Petitioner’s objections.
3 Our dissenting colleague admits that Robertson has not resigned or
been discharged. Whether or not the Employer’s failure to discharge
him is, as characterized by our colleague, “for beneficient reasons” is
irrelevant. See Pepsi-Cola, supra.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
33 shall, within 14 days from the date of this Decision
and Direction, open and count the ballots of Steve
Hodges, Roger Burke, Gerald Kocher, Walter Reid, Gary
Robertson, James Robertson, Randy Endsley, and Stan
Frerichs. The Regional Director shall then serve on the
parties a revised tally of ballots and issue the appropriate
certification.

MEMBER HURTGEN, dissenting in part.
My colleagues apply the test of Red Arrow Freight
Lines, 278 NLRB 965 (1986), to find that a permanently
and totally disabled employee is eligible to vote. The
employee is on long-term disability, and his own physi-
cian has determined that he will “never” be able to return
to work. Applying the Red Arrow test, my colleagues
note that the employee has not been terminated and has
not resigned. Thus, they find him eligible to vote. I re-
spectfully disagree with the Red Arrow test. I would
apply a test of whether there was a reasonable expec-
tancy of return to the unit.1 Because there was not such
an expectancy, I would sustain the challenge.

Gary Robertson, a former truckdriver, has not worked
since March 26, 1996, and has been on long-term disabil-
ity since September of that year. He suffers from ad-
vanced emphysema, heart failure, coropulmonale, and
severe exogenous obesity. He weighs 450 pounds. Rob-
ertson is not physically able to work as a truckdriver, and
he will not be able to do so at any time in the future, ac-
cording to his medical records. Robertson’s physician
testified as follows:

Q. How long will the described limitations im-
pair the patient?
A. Lifetime
Q. When do you expect a fundamental marked
change in patient’s condition?
A. Never.

Robertson has never resigned, and, for beneficient rea-
sons, the Employer has never discharged him. He is al-
lowed to remain on the payroll to obtain disability bene-
fits under the employer-provided health insurance plan.
Because, under the prevailing Red Arrow test, an em-
ployee on sick or disability leave is presumed eligible to
vote unless he has resigned or been discharged, my col-
leagues find that Robertson is eligible. But the real issue
is whether Robertson shares a community of interest with
1 I agree with the dissent in Vanalco, Inc., 315 NLRB 618 (1994).
328 NLRB No. 9
SUPER VALU, INC. 53
the unit. In my view, that depends on whether he has
reasonable expectancy of return. The record here estab-
lishes that he does not and that the Red Arrow test com-
pletely subverts the community of interest standard.
The “reasonable expectancy” test is a permissible con-
struction of the Act and is preferable because it is a better
measure of voter eligibility than the current Red Arrow
test. There can be a myriad of valid reasons why a sick
or disabled employee has not resigned or been dis-
charged, even if there is no likelihood of his returning to
the unit. Some of these reasons are practical; some, as
here, are humanitarian. In essence, the Red Arrow test
forces a Hobson’s choice between (1) resignation or dis-
charge; and (2) an extension of eligibility to someone
who has no foreseeable likelihood of reestablishing ties
to the other voters. I would not force that choice.
The “reasonable expectancy” test should apply
whether an employee’s absence from the workplace is
necessitated by economic circumstances or by medical
ones (i.e., employees on layoff, as well as those on sick
leave). The record establishing Robertson’s medical
condition and his inability to return to his job as a truck-
driver exposes a serious infirmity in the Red Arrow test.
Employees on sick leave who have no reasonable expec-
tancy of returning to work, such as Robertson, do not
share a community of interest with those who are ac-
tively employed.
The “reasonable expectancy of return” test has long
been used by the Board for employees laid off for eco-
nomic reasons, and no insuperable difficulties have been
encountered. Concededly, an economic layoff involves
economic issues, while the instant case involves medical
ones. But, the burden of proof is on the party opposing
eligibility. Thus, to the extent that the medical evidence
is in serious conflict, it may be that the burden is not met.
But where, as here, the medical evidence is clear and
unrebutted, and shows no reasonable expectancy of re-
turn, the employee should not be eligible, for he has no
community of interest with the unit employees. Indeed,
as noted by the circuit court in a case cited by my col-
leagues:2

We recognize that there may be instances in
which it may be clear from objective factors that an
employee who has been out for medical reasons no
longer retains the requisite community of interest,
notwithstanding the failure of either party to com-
municate that termination of employment. [Id. at
607.]

Finally, my colleagues say that the courts have ap-
proved the Board’s rejection of the “reasonable expec-
tancy of return” test. In truth, the courts have simply
held that the Board has acted within its broad range of
discretion.3 The courts have thus made it clear that the
Board is free to adopt a different test. Therefore, the
courts have not rejected the “reasonable expectancy of
return” test.
In sum, I would allow ineligibility to be shown by ter-
mination, resignation, or other facts establishing that
there is no reasonable expectation of return. On the
facts, I would sustain the challenge to Robertson’s ballot.

2 Calvert Acquisition Co. v. NLRB, 83 F.3d 598 (3d Cir. 1996).
3 See, e.g., Calvert Acquisition, supra; Newly Wed Foods, 258 F.2d 4
(1st Cir. 1985).