Whiting Corp.

National Labor Relations Board - Board Decisions

Feb 2, 1951

92 N.L.R.B. 1851 (N.L.R.B. 1951)

In the Matter Of WHITING CORPORATION, SPENCER AND MORRIS DIVISION,
EMPLOYER and INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIPBUILDERS & HELPERS OF AMERICA , FOR AND ON BEHALF OF
SUBORDINATE LODGE No. 92, AFL, PETITIONER
Case No. 21-RC-1353
SUPPLEMENTAL DECISION AND DIRECTION
February 2, 1951
On October .18,1950, pursuant to the Board's unpublished Decision
and Direction of Election herein, dated October 2, 1950, an election
by secret ball ot was conducted under the direction and supervision
of the Regional Director for the Twenty-first Region, among the
employees in the unit found appropriate. At the close of the election,
a tally of ballots was furnished the parties in accordance with the
Board's Rules and Regulations. The tally showed that, of the 35
ballots cast, 17 were for the Petitioner, none were for the Intervenor,'
16 were against both labor organizations, and 2 were challenged. No
objections to the conduct of the election were filed within the time
provided therefor.
As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director, pursuant to the Board's
Rules and Regulations, investigated the challenges, and on Novem-
ber 16, 1950, issued his "Report on Challenges." In his report, the
Regional Director recommended, in substance, that the challenges
which had been made to the ballots of W. Werner and Jack Norgard
be overruled, and that these ballots be opened and counted. The
Employer timely filed exceptions to the Regional Director's report
with regard to Norgard, and a supplement and brief in support
thereof. The Petitioner filed a statement in support of the Regional
Director's report.
As no exceptions were filed to the Regional Director's recommenda-
tion concerning the challenged ballot of Werner, we 2 shall adopt his
recommendation that Werner's ballot be opened and counted.
' International Association of Bridge , Structural and Ornamental Iron Workers, Local
509, AFL.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Murdock, and Styles].
92 NLRB No. 108. 1851
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Norgard, the Regional Director found that, at the time of
the election, Norgard was an employee of the Employer on • sick leave
and was, therefore, entitled to vote. The Employer contends that
Norgard was ineligible to vote because his employment terminated
on September 26, 1950, and he had no expectancy of, nor right to,
reemployment.
The essential facts are substantially undisputed. Norgard, age 70,
had been employed by the Employer for a number of years as a yard-
man in charge of loading and unloading steel. During about the last
year, he had been in poor physical condition and the company doctor,
on several occasions, recommended that he be removed from the job.
However, the Employer refused to adopt such recommendations as
Norgard was not subject to the Employer's retirement program and
the Employer believed that it furthered its relations with its employees
to retain him.
On September 26, 1950, Norgard advised the Employer that he.
desired to be relieved from work because of his physical condition,
and because his wife had recently broken her hip and it was necessary
for him to assume the nursing duties. He desired assurance that his
group insurance benefits would be continued and, although questioned,
would not state to the Employer either how long he desired to be away
from work, or whether he thought that his physical condition would
permit his resumption of work. The Employer mentioned that Nor-
gard's reemployment would depend upon his physical qualifications,
but added that he would be informed definitely as to his status after
the Employer contacted its home office in Harvey, Illinois.
On October 6, the Employer informed Norgard, after the latter
had undergone a physical examination, that he was being assigned
to the status of "Voluntary Suspension" for a period not to exceed 60
days, and that his group insurance would be maintained during that
time. This status, which was made retroactive to October 2,3 was
defined as follows in the Employer's home office memorandum :
Suspension is a term applied to the status of employees upon
being removed from the active payroll. Employees are placed on
suspension for . . . reasons of health, in which case a leave of 30,
60 or 90 days is granted upon presentation of sufficient evidence
to substantiate the claim. In this event, the Whiting Corpora-
tion maintains and pays the insurance premiums. [Emphasis
supplied.]
Norgard was classified as on "Voluntary Suspension" at the time of
the election on October 18, 1950.
3 From September 27 to September 29, Norgard was carried on the payroll as "Sick."
WHITING CORPORATION 1853
The Employer admits that Norgard was never categorically advised
that his employment had terminated, and his official status, which was
designated as a "leave" for "reasons of health," and called for the
continued payment of group insurance premiums by the Employer,
was in effect that of an employee on sick leave.. Although the Em-
ployer claims that Norgard had no reasonable expectancy of returning
to work, his physical condition had been previously disregarded for
about a year in order to further the Employer's personnel relations.
Moreover, as late as October 11, 1950, in a letter from the Employer
to its home office concerning Norgard, the Employer stated that there
was merely "some possibility that [his suspension] will turn into a
retirement." Under all the circumstances, we are of the opinion that, at
the time of the election, Norgard's return to work was still uncertain
and, as his employment had not been actually severed, we find, like
the Regional Director, that Norgard was entitled to vote.'
Accordingly, we shall overrule the challenge to the ballot of
Jack Norgard and, as recommended by the Regional Director, direct
that his ballot be opened and counted.
DIRECTION
IT IS HEREBY DIREO"TBD that the Regional Director for the Twenty-
-first Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots cast by W. Werner and Jack Norgard, and thereafter pre-
pare and serve upon the parties to this proceeding a supplemental
tally of ballots, including therein the count of said challenged ballots.
4 See Tyre Brothers Glass dt Paint Co., 85 NLRB 910, 913 ; cf. Sylvania Electric Products,
Inc., 91 NLRB 296 . Although the Bmployer on December 1, 1950, advised the Board
that Norgard had, on that date, voluntarily terminated his status of "Voluntary Suspen-
sion," such action is clearly not dispositive of his status at the time of the election on
October 18, 1950.