Atlanta Dairies Cooperative. Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1987

283 N.L.R.B. 327 (N.L.R.B. 1987)

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