Employee Who Announced Intention To Resign Still Eligible To Vote In Union Election

Magic Beans, Inc., 352 NLRB No. 197 (July 18, 2008), is an interestng case. An employee who announced his intention to resign and did resign after the election was found eligible to vote. Why? Because he was an employee on the voter eligibility date. Guess what the margin of victory was in this election? You got it, one vote. As the Board stated:

An employee’s eligibility to vote is determined by whether he
was employed and working in the bargaining unit on the
eligibility date and date of the election. Roy Lotspeich
Publishing Co., 204 NLRB 517, 517–518 (1973).3 Here,
Collum was employed and working on the payroll eligibility
date. He was also employed and working when he
made the statement to Gonsalves. Although Gonsalves
was aware that Collum intended to resign after the election,
the fact that an employee intends to quit after an
election, and does in fact quit, does not affect his eligibility
to vote. Personal Products Corp., 114 NLRB 959,
961 (1955) (overruling a challenge to a ballot where the
employee gave notice to the employer that she would
terminate her employment 2 days after the election). See
also Saint-Gobain Industrial Ceramics v. NLRB, 310
F.3d 778 (D.C. Cir. 2003) (employee’s plan to leave his
job after election and use of vacation time to allow him
to start a new job and still vote in the election did not
affect his eligibility).

Mitchell H. Rubinstein