Amoco Oil Corp.

280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Amoco Oil Corporation and Brenda L. Shaw, Peti- tioner and Oil, Chemical & Atomic Workers International Union, Local 7-776 AFL-CIO. Case 14-RD-1190 June 21, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFr The National Labor Relations Board, by a three- member panel, has considered a determinative chal- lenge in an election held January 5, 1988, and the Regional Director's report recommending disposi- tion of it. The election was conducted pursuant to a Stipulated Election Agreement. The tally of bal- lots shows five for and five against the Petitioner, with one challenged ballot, a sufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, and adopts the Regional Director's findings and recommendation as modi- fied. The Employer challenged Thomas J. Dixon's ballot, contending that Dixon was no longer em- ployed on the day of the election. The Employer contends that Dixon, whose name was on the Ex- celsior list, was an eligible voter during the payroll period of eligibility ending December 4, 1987, but that his eligibility ended when he ceased working on December 31 pursuant to a November 3 notice of retirement. The Union contends that Dixon was on vacation the month of January 1988 and that his voting eligibility continued until the effective date of his resignation, February 1, 1988. The Regional Director found that Dixon was ineligible to vote because he was not actively employed on the date of the election. We reverse. Under the parties' collective-bargaining agree- ment, employees with more than 30 years of serv- ice are entitled to 6 weeks' vacation, but the em- ployee must be on active status the 31st day of the preceding calendar year in order to take advantage of the benefit. Dixon, whose service to the Compa- ny exceeded 30 years, advised the Employer, who administers the vacation plan, that he intended to use 4 of his 6 weeks of accrued vacation during the month of January 1988 and that his retirement would be effective February 1, 1988. Dixon's last day of active service was December 31, 1987. In concluding that Dixon was not eligible to vote after December 31, the Regional Director relied on Roy N. Lotspeich Publishing Co., 204 NLRB 517 (1973), which held that an employee must be employed and working on both the payroll ending date for eligibility and the date of the elec- tion. However, as also acknowledged in the Re- gional Director's report, the Lotspeich require- ments are limited by four exceptions, including an exception for employees on vacation on either of the critical dates: It is well settled that, in order to be eligible to vote, an individual must be employed and working on the established eligibility date, unless absent for one of the reasons set out in the Direction of Election i.e., illness, vacation, tem- porary layoff, or economic striker status. 204 NLRB 517 (1973) (first emphasis in original; second emphasis added). Notwithstanding the fact that Dixon's absence falls squarely within the vacation exception, the Regional Director found the "operative fact" to be that Dixon was not on active status on the date of the election, noting that prior to the election date he had tendered his retirement notice, applied for retirement benefits, trained his replacement, ceased working, had his retirement party, was presented with his retirement gift, and had his exit interview. Although these facts bear on whether Dixon had a reasonable expectancy to return to work when he completed his last day of work on December 31, the "reasonable expectancy of employment test" applies only to eligibility determinations involving laid-off employees-not employees on vacation leave.' Dixon unambiguously requested vacation benefits for the month of January 1988 in his retire- ment notice, and it is undisputed that those benefits were granted. Finally, Dixon's retirement was not effective until February 1, 1988, weeks after the election. In reversing the Regional Director, we thus rely on the fact that Dixon's effective date of retirement was after the election and the finding that Dixon retained his employee status through the date of the election as an employee on vacation. Accord- ingly, we find, contrary to the Regional Director, that Dixon was on vacation leave on the day of the election, that he was therefore eligible to vote, and that his ballot should be opened and counted. DIRECTION IT IS DIRECTED that the Regional Director for Region 14 shall, within 10 days of this Decision and Direction, open and count the ballot of Thomas J. Dixon, prepare a revised tally of ballots, and have it served on the parties. Thereafter, the Regional Director shall issue the appropriate certi- fication. ' Red Arrow Freight Lines, 278 NLRB 965 fn 5 (1985) See also NLRB Y. Hillview Health Care Center, 705 F 2d 1461, 1471 (7th Cir. 1983) ("Board's unvarying policy is that any employee may vote, even if he has a fixed intention of quitting immediately after voting ") 289 NLRB No. 37