dissenting.
I dissent for the simple reason that NLRB v. Franklin Art Glass Studios, Inc., 675 F.2d 106 (6th Cir.1982), established the legal standard in this circuit for determining whether laid-off employees should vote in representation elections. They have the right to vote in representation elections if, at the time of the elections, they have a reasonable expectation of recall. Id. The Board made the specific factual finding that these laid-off employees had a reasonable expectation of recall, and that finding is supported by substantial evidence, the testimony of the employees. The majority rejects this finding out of hand, applying its own factual conclusions instead, despite the dictates of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and Arkansas v. Oklahoma, — U.S.-, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
I believe that Franklin Art established the legal standard in this circuit, at least until a contrary en banc decision, for determining whether laid-off employees should be allowed to vote in representation elections. This court quite specifically allowed *884the three employees in Franklin Art to vote in the representation election because the employees “had a reasonable expectation of recall.” Franklin Art, 675 F.2d at 106. This is the legal standard which we must use in this case, coupled with the factual findings of the Board that are supported by substantial evidence.
The majority cites two decisions, Sol-Jack Co., 286 N.L.R.B. 1173 (1987), and NLRB v. Apex Paper Box Co., 976 F.2d 733 (6th Cir.1992) (unpublished opinion), apparently for the proposition that many objective factors should be examined in determining eligibility for voting in representation elections. Neither of those cases changes the Franklin Art test. Sol-Jack Co., 286 N.L.R.B. 1173 (1987), cannot change the precedential effect of Franklin Art because the Board does not have the power to change this circuit’s interpretation of the National Labor Relations Act. In addition, NLRB v. Apex Paper Box Co., 976 F.2d 733 (6th Cir.1992) (unpublished opinion), affirms the Franklin Art test. In Apex Paper Box, the Board refused to allow formerly laid-off employees, who were nonetheless employees at the time of the representation election, to vote in the representation election. In reversing the Board’s conclusion of law, this court simply refused to allow the Board to apply the Franklin Art test to formerly laid-off employees who were recalled and working on the date of the election.
If the majority believes that the standard for determining eligibility for voting in representation elections should be an objective standard, then the majority should say so and explain how that standard is consistent with Franklin Art. I understand the Franklin Art standard to be partly objective and partly subjective: what did the laid-off employees expect and was their expectation reasonable? If the majority disagrees with this standard, then the Board needs to know. As it stands, the Board is left with little guidance for determining the voting eligibility of laid-off employees in representation elections in this circuit.
In addition to using an altered legal standard, the majority writes, “We ... find no basis to hold that any of those employees had a reasonable expectation of recall.” This conclusion is contrary to the findings of fact made by the administrative law judge who observed the witnesses before him and whose findings were upheld by the Board. In reaching its conclusion, the majority does not follow the substantial-evidence standard described in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Board made a specific factual finding that these employees had a reasonable expectation of recall. That specific factual finding is supported by the testimony of the employees regarding what they were told when they were laid off. The employees’ testimony as to their expectations is substantial evidence which this court is in no position to reject. By concentrating on the evidence which supports its factual conclusions, such as the business history of Ideal Macaroni, the majority commits the same error that the Supreme Court recently criticized in Arkansas v. Oklahoma, — U.S.-, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). In that case, the Tenth Circuit rejected the factual findings of an administrative agency by citing other factual findings of the agency for an opposite conclusion. The Supreme Court, in reversing the circuit court, wrote, “The [reviewing] court should not supplant the agency’s findings merely by identifying alternative findings that could be supported by substantial evidence.” Id. at -, 112 S.Ct. at 1060.
As a final matter, I am concerned that the majority, in footnote six, indicates that one reason to refuse to enforce the Board’s petition is because this case has lasted for so many years. By ruling for Ideal Macaroni, the majority uses that company’s delay and intransigence as an excuse to reward the company. I could never agree with such a result.
In my opinion, the Board properly allowed the three employees to vote in this representation election, and the petition for enforcement should be granted.