*2 challenge of the was parte OPINION conducted the Director.1 TRASK, and Cir BROWNING Before SWEIGERT,* District Judges, and cuit sent a letter Company promptly The Judge. investigating agent setting forth enclosing documentary position its support position. its The evidence PER CURIAM. further informa- Company “any offered order are for the Board’s The reasons Among if the documents tion” desired. in its deci- adequately stated briefly but a report a detailed of medical exam- was practice pro- unfair labor in this sions Baker, by a Dr. which concluded ination 117) and the ceeding (210 NLRB No. with this statement: proceeding. underlying representation “As viewed at this time I do not in the record and re- have They patient returning this to his the interpretation of a reasonable flect in the previous work Bros., NLRB v. Staiman statute. department hospital at the in the fore- 1972); NLRB (3rd Cir. F.2d 566 466 seeable future.”2 Co., 438 F.2d Robinson Pacific Gamble v. 1971); Westchester (9th Cir. 113 Shortly report thereafter a NLRB, Ohio, Inc. Plastics of issued, challenged was ballot which stat- 1968); Trailmobile Di- (6th Cir. 908 ed that the ballot should be counted. Pullman, Inc. v. vision contained a statement that is no “[t]here evidence, contend, nor does the Employer will be enforced. Board’s order The that Childress has been terminated.” The recommendation was that the chal- lenge be denied and the vote counted. (dissenting). TRASK, Judge Company promptly exceptions filed disagreement in myself find I pointed out the failure to a hold majority panel. of the I of the views Board, however, hearing. The counted of the minority opinion the adopt against employer, ap- the ballot the expressed Board who of the Chairman election, proved adopted in full the two member in dissent with the himself findings and certified NLRB panel in 210 majority of bargaining agent. Union as representation Thereafter, as a dispute began the Company declined to a consent election bargain in which proceeding order to judicial obtain re- that the' view. parties agreed held. The When unfair “employees charges filed, would include were eligible voters the Company admit- ted during payroll not work said its refusal to bargain who did but denied the validity they were ill or on vaca- of the period because Board’s certification and that it laid off.” Four votes had temporarily tion or committed unfair labor practice. four against east for the Union and Within a were month the General ballot, Counsel employee that of Chil- filed a motion for summary judgment. dress, agent the Board challenged Company filed an an- April 2, 1974, swer on voter’s name was not on the cause the in which it incor- porated previous this ballot was eligibility list. Because answer to the com- plaint, an ex reasserted its exceptions sufficient to affect and de- * Sweigert, Honorable William T. later, Senior United any challenge but before States District for the Northern District report, agent sent a clarification letter California, sitting by designation. explaining saying that what the doctor was possibility was that he did not foresee the Pursuant to Board’s Rules employee would return to the maintenance C.F.R.), 102.69(c). (29 Series 8 Section department. hearing.3 It also regular offered to employees. manded NLRB v. Joclin held, if a that: prove, Manufacturing “First, Childress suffered an injury Seasonal if which resulted in reasonable ployment. em- permanent disability and that these *3 Co., Sierra Pacific Power facts were known to the Employer pri- (1944). 56 NLRB 458 election; or to the 4. Employees on leave of absence if “Second, the Employer had decided they have a reasonable of expectancy prior to the not election to re-employ returning employment on Childress in the depart- completion of their leave. General ment; American Transportation Corp., 187 “Third, steps were taken to obtain a (1970). NLRB 120 permanent replacement for Childress The last day Childress worked was on permanent and a replacement was, in 1973. The election was held fact, election; prior obtained June 1973. During his four month “Fourth, the Employer proce- has no absence he had been treated but had dure ‘removing for an employee from shown no improvement and his doctor ” payroll.’ C.T. at 37-38. did not his return to work “in offer, In support of its the Company the foreseeable future.” The affidavits submitted letters and medical reports and evidentiary material in the answer previously which had been submitted in to the motion for summary judgment exceptions. of its The motion supported these factual statements. The for summary judgment granted and affidavit of the hospital administrator decision and order of May also stated that because of his medical found the guilty of the unfair history “under no circumstances” would charged. as he reemploy Childress in the mainte-

The general rule of eligibility to nance department, vote which was the appli- in a representational election is that the cable work unit. at C.T. 39. The mo- employee must employed working tion of General Counsel did deny or on the date of the put election. An excep- facts, issue these critical nor did tion has been created for any absence be- of the appendices attached to it. cause of illness. If the employee has a The Board’s own Rules Regula- reasonable of returning to require tions it to hold a hearing when work in the unit within a reasonable there are substantial and material issues future, time in the he is eligible. Whit- of fact. 29 C.F.R. Part 102. As Judge ing Corp. Friendly of the United States Court of The Board has applied the Appeals for the Second succinctly expectancy” “reasonable test to various stated: kinds of absences: court cannot enforce an “[A] order 1. An employee who has been “laid finding an employer guilty of an off” during eligibility period unwarranted refusal to bargain with a vote if he or she has a reasonable ex- union certified in an election if it ap- pectancy being of recalled to unit pears, respect to challenges af- work. Engine Thomas Corp., 196 fecting either that (1972); NLRB 706 Lingerie Co., Sierra disposed erroneously as a mat- NLRB 844 ter of law or that the employer raised Summer if they ‘substantial and material factual is-

reasonable expectation sues’ becoming under the and was response to the motion for argument There is no record of oral judgment contained affidavits and documenta- motion. ry supporting Company’s position. matter process entitled to the seasonably that he and are denied a serve standards our constitutional NLRB v. Joclin Manufac- is due under requested.” itself. rules of the Board turing and the denying enter a decree I would enforcement, vacat- Fifth petition Ainsworth of the Circuit Board’s and remand- problem its Decision Order recently ing more addressed consistent proceedings he said: for further ing when opinion. with this princi- second Company’s “As to the error, the three em- pal assertion Parrish, Smith, Norris and al-

ployees, voluntarily to have abandoned

leged Company prior date, we are unable to eligibility *4 record, having the case

tell from summary judgment,

been decided vol- employment their ceased

whether fact or not. The issue of untarily FUTORIAN MANUFACTURING seriously dis- sharply contradicted and al., CORPORATION et Company, on the one puted. s-Appellees, Plaintiff hand, employees quit that the contends any expect- without their con- ancy returning. Board DUAL MANUFACTURING & tends, contrary, the facts ENGINEERING, INC., by Director in developed Defendant-Appellant. parte investigation they ex show the time merely quitting strike and confusion ing, until First subside, Circuit. and that had no could abandoning jobs. their intention of Argued 2, Dec. further asserts that the Decided Feb. could whether effectively determine intended to return to these only

work after the strike and that hearing

after a full can this crucial

issue of fact be resolved. does not lend question

“The disposition by judg-

itself to

ment and a should have been

held the Board to settle the issue. Industries, Inc., N.L.R.B. v.

See Smith 889; Cir., 403 F.2d N.L.R.B. v.

Ortronix, Inc., Cir., 1967, 380 F.2d

737.” NLRB v. Dalton Metal Sheet

Co., Inc., (5th 472 F.2d Cir. also NLRB v. K. Turner Associ- G.

ates, (9th Bakers, Inc., Capital

NLRB v. question can be no that the is-

There employer

sues raised here were They de-

both substantial and material.