Columbia Steel Casting Co., Inc.

306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Columbia Steel Casting Co., Inc. and Scott L. Myers/Charles A. Van Allen, Petitioners, and International Association of Machinists and Aerospace Workers, District Lodge No. 24. Case 36-RD-1203 March 31, 1988 DECISION AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The National Labor Relations Board, by a three- member panel, has considered determinative chal- lenges in and objections to an election held Sep- tember 1, 1987, and the hearing officer's report rec- ommending disposition of them. The election was conducted pursuant to a Stipulated Election Agree- ment. The tally of ballots shows 9 for and 4 against the Union, with 21 challenged ballots. The Board has reviewed the record in light of the exceptions and briefs filed by the Union and the Employer, and has adopted the hearing offi- cer's findings' and recommendations 2 as modified below. The hearing officer overruled the challenge to the ballot of Alton Beasley. The Employer excepts, contending that Beasley retired and thereby aban- doned his job with Columbia Steel. We find merit in this exception. About March 18, 1987, 3 a strike commenced at the Employer's facility. The strike was still in progress as of the date of the hearing in this matter. Prior to the commencement of the strike, Alton Beasley, an employee with 18 years seniori- ty, inquired of the applicable pension plan adminis- trators about his retirement options and about what income might be available to him in the event a strike materialized. On March 4, Beasley filed an application for pension benefits. About April 11, Beasley notified the plan administrator of his selec- tion of an option under the retirement plan and in- dicated he had retired as of April 1. In June, Beas- ley received his first retirement benefits, covering The Union has excepted to some of the hearing officer's credibility findings. The Board's established policy is not to overrule a hearing offi- cer's credibility resolutions unless the clear preponderance of all the rele- vant evidence convinces us that they are incorrect. Stretch-Tex Co, 118 NLRB 1359, 1361 (1957) We find no basis for reversing the findings. We modify the hearing officer's report to reflect that the correct name for the Employer's vice president and general manager is James T Broth- gan. In addition, we correct the hearing officer's frequent reference to "shop superintendent James" to read "machine shop supervisor Gene Smith" The corrections in no way affect our conclusions in this case. 2 In the absence of exceptions, we adopt, pro forma, the hearing offi- cer's recommendations to overrule the Union's objections in their entire- ty; to overrule the challenges to the ballots of Keith Michaels, Jim Un- derwood, Waylon Smith, and Richard Kraner; and to sustain the chal- lenge to the ballot of Jerry Chancey 'All dates are in 1987, the month of May. As of the hearing in this case, Beasley was still drawing retirement benefits. Nonetheless, Beasley supported the union strike and engaged in strike-related activities, including carrying picket signs. Beasley testified that he ap- plied for retirement benefits to support his family during the strike. He further testified that as of September 1 he was still interested in resuming his employment with the Employer, subject to the Union's approval. In addition, Beasley stated that, prior to accepting any retirement benefits, he veri- fied with the pension plan administrators that he could return to work at a later time, cancel his col- lection of benefits, and resume receipt of them on a subsequent retirement. We agree with the Employer that Beasley was not eligible to vote. As the Board stated in Belt Su- permarket, 260 NLRB 118 (1982): "[R]etirement status is inconsistent with continued interest in em- ployment with the Employer. When an employee retires he severs his employment with his employ- er." The Board noted that in a strike situation there is the possibility that a retired employee may apply for reinstatement to active status after the strike ends. Notwithstanding that an employer may act favorably on that application, the Board noted that the retired individual, on rehire, is to be treated as a new employee for election eligibility purposes. As further noted in Belt Supermarket, a retired indi- vidual engaged in picket line activities—activities in which any member of the general public is free to engage—does not alter the conclusion that, by retiring, the individual has quit his active employ- ment with his employer. Id. at 119. We therefore conclude that because Beasley was in retirement status on the day of the election he was ineligible to vote. We find Beasley's actual status on the date of the election to be determinative here; not his subjective intent to terminate his retirement and at- tempt to return to work for the Employer at some later date.4 Accordingly, we sustain the Employ- er's challenge to Beasley's ballot. By comparison, we find no merit in the Employ- er's exceptions to the hearing officer's recommen- dation that the challenge to Kenneth Scott's ballot be overruled. Scott, an employee for 18 years, went on strike March 18. About June, he applied for social security disability retirement benefits. His claim, however, was denied by the Social Security Administration in July. Scott thereafter appealed that decision and, as required, sought further medi- 4 Consistent with this approach, the Board has relied on the actual status of employees working as of the election date to find them eligible, irrespective of evidence that they may have had plans to quit or retire after the election. See Radio Free Europe, 262 NLRB 549, 551 (1982), Plymouth Towing Co , 178 NLRB 651 (1969). 288 NLRB No. 40 COLUMBIA STEEL CASTING CO. 307 cal opinions. As of the date of the election, the status of Scott's application for disability benefits was that it had been denied. Also as of that date, there is no evidence that Scott had abandoned any interest in returning to work for the Employer. It was not until October or November that Scott's disability claim was granted, retroactive to Septem- ber 1. Thus, the critical difference between Scott and Beasley is that Scott, as of election day, was a current, striking employee who had not yet sev- ered his employment relationship with his Employ- er.5 Accordingly, we agree with the hearing offi- cer that Scott was eligible to vote. Accordingly, as the challenges to ballots have been overruled in a sufficient number to affect the results of the election, we shall direct the Regional 5 Social Security's retroactive granting of Scott's disability claims cannot alter the fact that as of the date of the election, he was still an employee of the Employer. Director to open and count those ballots, to issue a revised tally of ballots, and to issue the appropriate certification. DIRECTION It is directed that the Regional Director, within 10 days from the date of this decision, open and count the ballots cast by Mark Anderson, Greg Adkinson, James Griffin, Rodney Burkett, James Neddo, Howard Cox, Roger Babb, Monty Hannen, Gary Biazzo, Paul Levine, Martin Sabrowski, Mark Haagenson, Kevin Flowers, Harold Perkins, Keith Michaels, Waylon Smith, Jim Underwood, Richard Kraner, and Kenneth Scott, and prepare and serve on the parties a revised tally of ballots. Thereafter, the Regional Director shall issue the appropriate certification. IT IS FURTHER DIRECTED that this proceeding is remanded to the Regional Director for taking ac- tions consistent with this Decision and Direction.