Amoco Oil Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1988

289 N.L.R.B. 280 (N.L.R.B. 1988)

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