N.L.R.B. v. Newly Weds Foods, Inc., 84-1513

• Decision Date: 26 March 1985
• Docket Number: No. 84-1513,84-1513
• Citation: 758 F.2d 4
• Parties: 118 L.R.R.M. (BNA) 3213, 85 A.L.R.Fed. 173, 102 Lab.Cas. P 11,419 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWLY WEDS FOODS, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 4

758 F.2d 4

118 L.R.R.M. (BNA) 3213, 85 A.L.R.Fed. 173,

102 Lab.Cas. P 11,419

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWLY WEDS FOODS, INC., Respondent.

No. 84-1513.

United States Court of Appeals First Circuit.

Argued Dec. 3, 1984.

Decided March 26, 1985.

P. Dawn Sikkema, Washington, D.C., with whom Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Wiford W. Johansen, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Elliot Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for petitioner.

Richard A. Perras, Boston, Mass., with whom Ruth Heller-Schaber, Providence, R.I., and Edwards & Angell, Boston, Mass., were on brief, for respondent.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, ^* Senior Judge.

BREYER, Circuit Judge.

The National Labor Relations Board asks us to enforce an order requiring Newly Weds Foods, Inc., to bargain with Local 348, Bakery, Confectionery and Tobacco Workers International Union, AFL-CIO. See 29 U.S.C. Sec. 158(a)(1), (5). The order rests upon a determination by the Board's Regional Director (affirmed by a three-member panel of the Board) that the union won a hotly contested representation election by a vote of 17-16. Newly Weds challenges this determination, pointing to certain features of the election that, in its view, invalidate the result. Having read the record and considered Newly Weds' arguments, we conclude that the Board's rejection of Newly Weds' challenge was within its lawful powers; and we enforce the Board's order.

I

Newly Weds argues that the Board should not have counted the ballot of Donald McPherson, a company employee who was on indefinite sick leave at the time of the balloting. In deciding whether the

Board correctly held that McPherson was eligible to vote, we take the relevant facts to be the following:

a. McPherson worked for Newly Weds as a "set-up man"--a job that evidently required him to stand for considerable periods of time.

b. In April 1982, seven months before the election, he injured his foot in a work-related accident, took a leave of absence, and began receiving workers' compensation.

c. McPherson met several times with a rehabilitation counselor who worked for Newly Weds' insurance carrier. But, he stopped meeting with the counselor after the counselor suggested that McPherson accept a lump sum payment instead of reemployment.

d. Two days before the election, McPherson's doctor examined him and told him that he could perform "sitting work," but he could not yet be "released" for work that (like his former job) required extended periods of standing.

e. On the day of the election, McPherson spoke with Rita Sarkissian, a Newly Weds receptionist, in the company's lobby. Sarkissian testified (as reported by the Regional Director) that McPherson told her

that his foot was getting worse, that it was a permanent injury, that his doctors had told him that it was a permanent injury, and that he could not work for the rest of his life. She asked McPherson if he was planning to return to the [company], to which he replied, "No, I won't come back to Newly Weds."

f. From the time of the accident through the date of the election, Newly Weds kept McPherson on its payroll records; continued his health and life insurance coverage; placed his name on an election eligibility list; mailed campaign literature to him; and allowed him to keep his uniform, tools, and identification card--items that he was obligated to return if his employment was terminated.

The Board held that, on these facts, McPherson was eligible to vote.

The rule governing eligibility under the National Labor Relations Act is that one employed on the election date and on the last day of the preceding payroll period can vote in a certification election. See Computed Time Corp., 228 N.L.R.B. 1243, 1250-51 & n. 31 (1977). The eligibility of an employee on sick leave, however, is determined according to a different standard. According to the Board,

The general rule regarding employees on sick leave is that they are presumed to remain in that status until recovery, and a party seeking to overcome that presumption must make an affirmative showing that the employee has resigned or been discharged.

Office of General Counsel, Outline of Law and Procedure in Representation Cases 284 (1974). The Board held that Newly Weds had not overcome the "presumption" that McPherson was still on sick leave, and thus continued to be an employee for eligibility purposes, because Newly Weds had not shown a "discharge" or "resignation."

In our view, the evidence is more that adequate to support this conclusion. The Board could reasonably view McPherson's conversations with a receptionist on election day as neither intended to constitute resignation from the company, nor legally sufficient to do so. See Akers v. J.B. Sedberry, Inc., 39 Tenn.App. 633, 286 S.W.2d 617 (1955) (resignation must be accepted to be effective); Lemlich v. Trustees of Harford Community College, 282 Md. 495, 385 A.2d 1185, 1189 (1978) (employee's tender of resignation not effective until accepted by one with authority to make employment contracts); Restatement (Second) of Agency ch. 8 at 581 (1958) (introductory note) ("A notification is intended to affect the relations between the parties, and it has that effect only if given to or by an agent who has power to bind the principal under the rules relating to consensual transactions between the principal The difficult question here, however, is whether the Board's quoted "rebuttable presumption" rule for determining the eligibility of 'sick leave' employees--which appears in a manual that the Board does not consider binding precedent but only "a reflection of Board decisions"--is in fact the standard that the Board applies. Newly Weds claims that the rule generally applied by the Board is that 'sick leave' employees are eligible to vote only when they have a "reasonable expectation of returning to work." See, e.g., Price's Pic-Pac Supermarkets, Inc., 256 N.L.R.B. 742, 743 (1981). Newly Weds adds that McPherson's conversation with the receptionist shows that he had no expectation at all of returning.

                and third persons.");   compare Keeshin Charter Service, Inc., 250 N.L.R.B. 780, 792-94 (1980) (employer's acceptance of resignation after election does not affect eligibility)
                

We have examined the Board's decisions and related court cases in an effort to determine what standard the Board, in fact, has applied, and whether it has acted inconsistently, applying different standards at different times, to the prejudice of those who appear before it. Cf. Sunbeam Television Corp. v. FCC, 243 F.2d 26 (D.C.Cir.1957). We have found a surprising lack of uniformity in the relevant materials, with some cases speaking of "reasonable expectations," see, e.g., NLRB v. New England Lithographic Co., 589 F.2d 29, 32 (1st Cir.1978); Price's Pic-Pac Supermarkets, Inc., supra; Cato Show Printing Co., 219 N.L.R.B. 739, 754 (1975), some referring to a "presumption" of employment in the absence of communicated termination, see, e.g., NLRB v. Staiman Brothers, 466 F.2d 564, 566 (3d Cir.1972); Miami Rivet Co., 147 N.L.R.B. 470, 483 (1964); Wright Manufacturing Co., 106 N.L.R.B. 1234, 1236-37 (1953), and some speaking of both, see, e.g., NLRB v. Adrian Belt Co., 578 F.2d 1304, 1308 (9th Cir.1978); Whiting Corp., 99 N.L.R.B. 117 (1952). Respected commentators also differ in their descriptions of the standard. Compare R. Gorman, Basic Text on Labor Law 43 (1976) (employees on sick leave may vote if they have a "reasonable expectation of reemployment") with 1 The Developing Labor Law 385-86 (C. Morris ed. 1983) ("reasonable expectation" test applies to laid-off employees; "[e]mployees on sick leave ... are eligible to vote if they are to be automatically restored to their duties when ready to resume work").

Nonetheless, we have found a basic coherence in the Board's approach--a coherence that it explained in Whiting Corp., 99 N.L.R.B. 117, rev'd 200 F.2d 43 (7th Cir.1952), as follows:

Under the Board's practice, an employee on sick leave ... is eligible to vote in an election. Despite their not working, such individuals retain their employment status and are therefore considered to have sufficient interest in the outcome of the election to be permitted to vote. Sometimes it is difficult to ascertain whether an employee ... has lost or retained his status as an employee. In such cases, the Board applies the "reasonable expectation of further employment" standard as an aid in resolving the question. When the retention of [the] employee's status is clear, as we have found it to be in this case, the Board does not make further inquiry as to the expectation of future employment. Employee status having been established, the right to vote is similarly established.... This rule may not be a perfect one to determine eligibility, but in the Board's opinion it is the only practicable one, if election results are not to be held back by endless investigations into states of mind or of future prospects.

99 N.L.R.B. at 123 (citations omitted) (emphasis added). According to this standard, the Board uses the "reasonable expectations" of 'sick leave' employees only to clarify ambiguities of employment status. The administrative need for such a standard is sufficiently plausible to support the conclusion that this rule lies within the agency's statutory powers. See NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.1981); NLRB v. Fenway Cambridge This clarification of the Board's rule does not help Newly Weds; for even if we view McPherson's "status" as ambiguous, his conversation with Sarkissian does not compel a finding by the Board that he was ineligible to vote. McPherson's "status" with the firm is a matter of its employment practices--how it considers or classifies him. Initially, it classified him as on "temporary leave."...