Atlanta Dairies Cooperative. Inc.

ATLANTA DAIRIES COOPERATIVE 327 Atlanta Dairies Cooperative, Inc. and United Food & Commercial Workers International Union, District Union •#442, Petitioner. Case 10-RC- 13206 25 March 1987 DECISION AND DIRECTION BY MEMBERS JOHANSEN, STEPHENS, AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in an election held 26 November 1985 and the hearing officer's report recommending disposi- tion of them. The election was conducted pursuant to a Stipulated Election Agreement. -The revised tally of ballots shows 183 for and 1'81 against the Petitioner, with 10 challenged ballots." The Board has reviewed the record in light of the exceptions and briefs and has adopted2 the hearing officer's findings and recommendations as modified. The Petitioner challenged Wayne Winsett's ballot, contending that he has not worked for the Employer for several years due to a,disability, and that he has no reasonable expectation of returning to work. The hearing officer found Winsett ineligi- ble to vote because he has not worked in 3 years and has no estimated date of when he may return to work. The Employer contends that the hearing officer applied an incorrect legal standard in sus- taining the challenge to Winsett's ballot. The Em- ployer argues that an employee on sick leave is presumed eligible to vote absent evidence that the employee has been terminated or has' resigned. The Employer submits that there .is no such evidence and, therefore, Winsett is an eligible voter. We agree' with the Employer. 1 The original tally of ballots showed 181 for and 165 against the Peti- tioner, with 34 challenged ballots. The Regional Director directed that 18 ballots be opened and counted and that the challenges to 6 ballots be sus- tamed. With respect to the 10 remaining challenged ballots, the Regional Director found that the challenges raised issues which could best be re- solved by a hearing. He ordered that a hearing be held if the 10 chal- lenges remained determinative after the other 18 ballots were opened and counted. Since the revised tally of ballots showed that they were, in fact, determitcative, a'hearing was held. 2 Absent exceptions, we adopt, pro forma, the hearing officer's recom- mendations that the challenges to the ballots 'of Joann Diaz, Paul Wiley, and Walt Roberson be sustained. At the hearing, the parties stipulated that the ballot of Clarence Kemp should not be opened. Winsett has worked for the Employer for 20 years, and worked in a unit position until approxi- mately 3 years before the election, when he left work due to a disability. Although his physician has not yet declared him well enough to return to work, Winsett intends to return a$ soon as he is able to do so. Winsett draws Social Security bene- fits and also receives a monthly disability benefit from the Employer's insurance carrier. The Em- ployer continues to pay for Winsett's health insur- ance. Winsett has not retired from work, nor has the Employer terminated his employment. Winsett is in regular monthly contact with the Employer concerning his health condition. The Employer's credit manager, - who handles the disability program, testified that it is the Em- ployer's policy to carry a disabled and nonworking employee on its employment rolls until that em- ployee retires. The credit manager described the case of an employee who was disabled for approxi- mately 11 years, but who was considered to be an employee during his period of disability. We recently-restated the, Board's rule concerning the voting eligibility of an employee on sick or ma- ternity leave. In Red Arrow Freight Lines, 278 NLRB 965 (1986), we stated that such an employee "is presumed to continue in such status unless and until the presumption is rebutted by an affirmative showing that the employee has been discharged or has resigned."s Here the evidence', shows that Win- sett did not retire, nor was he discharged[, before the election. Accordingly, we overrule the chal- lenge to Winsett's ballot and direct that it be opened and counted. DIRECTION IT IS DIRECTED that ,the Regional Director shall, within 10 days from the date of this Decision and Direction, open and count the ballots of Eddie Bailey, Maudie Bauknight, Jack Carr, Edgar Blan- ton, Chris Wisniewski, and Wayne Winsett, and prepare and serve on the parties a second revised tally of ballots. Thereafter, the Regional Director shall issue the appropriate certification. a 278 NLRB at 966. Member Stephens agrees that , the eligibility of employee ,Winsett is governed by the holding in Red Arrow Freight. He was not a member of the panel in that case, however, and he observes that even under the test that Member Babson would have applied, Winsett would be eligible to vote because he possessed a reasonable expectation of future ,employment. 283 NLRB No. 51