Abbott Ambulance v. National Labor Relations Board , 522 F.3d 447 ( 2008 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2008 Decided April 18, 2008
No. 07-1077
ABBOTT AMBULANCE OF ILLINOIS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
07-1097
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
D. Michael Linihan argued the cause for petitioner. With
him on the briefs was Corey Louis Franklin.
Fred B. Jacob, Supervisory Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the brief were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, and Stacy Garrick Zimmerman,
Attorney.
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Before: GINSBURG and RANDOLPH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The National Labor Relations
Board determined that Abbott Ambulance of Illinois unlawfully
refused to bargain with the Professional Emergency Medical
Technicians and Paramedics Union. Abbott asserts that it was
not obligated to bargain with the union because the Board
counted an invalid ballot in the representation election, giving
the union an illegitimate one-vote victory. The Board cross-
petitions for enforcement of its order.
I.
Abbott maintains its headquarters in St. Louis, Missouri,
and operates a satellite facility in Belleville, Illinois. The
Belleville facility provides emergency medical treatment and
transportation for patients in Madison and St. Clair Counties in
southwestern Illinois. Abbott’s employees include emergency
medical technicians and paramedics. The technicians provide
basic life support services, such as stopping bleeding, rescuing
accident victims, transporting them to ambulances, and
performing cardiopulmonary resuscitation. One of the
qualifications for emergency medical technicians is that they
must be able to lift and carry an average of 283 pounds up to 25
percent of the time they are lifting and carrying.
Kelly Grant began working as an emergency medical
technician in Abbott’s Belleville facility in 1999. She injured
her left hand and wrist while releasing the catch on a stretcher
in October 2001. After her doctor placed her on a 20-pound
lifting restriction, she performed light-duty tasks around the
office instead of her regular duties. In early February 2002, her
doctor removed the lifting restriction and she returned to work
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as an emergency medical technician. In May 2002 Grant re-
injured her left wrist lifting a patient. A doctor then restricted
her to no lifting with her left hand and wrist.
In June 2002, Abbott assigned Grant to light duty in its
billings and claims department at the St. Louis office, a non-unit
position. Her responsibilities included copying, filing and
entering data. In accordance with Abbott’s policy, Grant
maintained her emergency medical technician wage rate while
working on light-duty status. Later in the summer, Abbott
offered Grant a full-time position in billings. She declined the
position in the hope that she could return to work as an
emergency medical technician. In October 2002, an orthopedic
surgeon diagnosed Grant with mid-carpal instability of the left
wrist and ordered a lifting restriction of 5 pounds. In March
2003, Grant underwent surgery for her wrist. She received
physical therapy and her lifting restriction fluctuated between 5
and 10 pounds through August 2003. In October 2003, Abbott
informed Grant that light-duty work in billings was no longer
available for her. She received her last paycheck for regular
hours worked on October 16. Grant then attended a yearly
training session in November 2003 and Abbott “town hall
meetings” in January, March and April of 2004. Abbott paid her
at her technician rate of pay for attending the training session
and the March meeting.
On March 1, 2004, the union filed a petition with the Board
to represent the Belleville facility’s emergency medical
technicians and paramedics. The union and Abbott entered into
a stipulated election agreement defining the voting unit as “[a]ll
full time and regular part-time EMTs, paramedics, customer
representatives and couriers employed at [Abbott’s] Belleville,
Illinois facility,” excluding clerical and other types of
employees. On April 12, 2004, Grant’s doctor discharged her
from his care, concluding that she had reached maximum
medical improvement and could not lift more than 30 pounds
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with her left arm. Three days later, on April 15, 2004, the Board
conducted an election, in which twenty-eight uncontested votes
were cast in favor of union certification and twenty-eight
uncontested votes were cast against. At this point, Grant’s most
recent job had been in billings, where she had not worked for
several months. The Board agent contested three ballots,
including Grant’s vote, which turned out to be in favor of the
union. Abbott argued that Grant was ineligible to vote because
she did not share a community of interest with the voting unit
and did not have a reasonable expectation that she would return
to work within the voting unit. The Board’s regional director
sustained the first two challenges but called for a formal hearing
regarding Grant’s vote.
After taking evidence, the hearing officer recommended
overruling the challenge to Grant’s vote. The hearing officer
invoked Red Arrow Freight Lines, Inc., 278 N.L.R.B. 965(1986), under which an employee who is a member of a unit but
is on sick leave, long-term disability, Atlanta Dairies Coop., 283
N.L.R.B. 327 (1987), or workers compensation, Thorn Ams.,
Inc., 314 N.L.R.B. 943 (1994), “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.” The Board adopted the hearing officer’s report
and recommendations and ordered the regional director to count
Grant’s ballot and issue the appropriate certification of the union
as the bargaining representative of Abbott’s emergency medical
technicians and paramedic employees. Abbott Ambulance of Ill.
and Prof’l EMTS & Paramedics, 347 N.L.R.B. No. 82 (2006).
When the union later attempted to bargain collectively with
Abbott, the company refused, claiming that the union’s
certification was invalid because Grant’s vote should not have
counted. The Board’s General Counsel filed an unfair labor
practice charge against Abbott, alleging that the company
violated § 8(a)(1) and (5) of the National Labor Relations Act.
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29 U.S.C. § 158(a)(1), (5). The Board found that the union’s
certification was valid and that Abbott’s refusal to bargain
violated the Act. Abbott Ambulance of Ill. and Prof’l EMTS &
Paramedics, 349 N.L.R.B. No. 43, at 2 (2007).
II.
The Board has long held that the “essential element in
determining an employee’s eligibility to vote” in a
representation election is the employee’s “status on the
eligibility payroll date and on the date of the election. It is
without controlling significance that an individual employed on
those dates may have intended to quit, or actually did quit,
shortly after the election.” Reidbord Bros. Co., 99 N.L.R.B.
127, 129 (1952) (citations omitted). This court and others have
upheld this hard and fast rule. See, e.g., Saint-Gobain Indus.
Ceramics, Inc. v. NLRB, 310 F.3d 778, 783 (D.C. Cir. 2002);
NLRB v. Res-Care, Inc., 705 F.2d 1461, 1471 (7th Cir. 1983).
But what is the status, on election day, of someone who has
been laid off or is on sick leave? The Board applies different
standards in these two situations. With respect to layoffs, the
worker may vote in a representation election if there is a
“reasonable expectancy” the company will recall him. Higgins,
Inc., 111 N.L.R.B. 797, 799 (1955). On the other hand, if the
employee is on sick leave, the Board says it will presume that he
may vote “unless and until the presumption is rebutted by an
affirmative showing that the employee has been discharged or
has resigned.” Red Arrow, 278 N.L.R.B. at 965. Abbott thinks
the Board erred in applying the Red Arrow standard to Grant
rather than the standard it uses for determining the eligibility of
laid off workers. The company has not claimed that it actually
laid off Grant. Rather, the company’s position is that the Red
Arrow “test” is irrational as applied to workers on medical leave,
such as Grant, who have no reasonable expectation of returning
to the unit and who therefore have been “effectively laid off.”
Pet’r Opening Br. 51. In the alternative, Abbott argues that
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Grant’s employment status was ambiguous and that the Board
should have applied the reasonable expectation standard to
determine her eligibility. See Newly Weds Foods, Inc., 758 F.2d
4, 8 (1st Cir. 1985).
Although the Board says its Red Arrow standard erects a
“rebuttable presumption,” that is a misnomer. Individuals who
have been fired or quit are obviously not on medical leave.
They are no longer employees of the company. Red Arrow thus
might be seen as stating an unrebuttable proposition: if an
“employee” is on medical leave the employee is eligible to vote.
The strictness of this standard is somewhat tempered by the
Board’s position – as Board counsel expressed it at oral
argument and in a post-argument submission – that employees
on sick leave who accept permanent management positions or
positions in another unit before the election are ineligible to vote
under Red Arrow because they have quit, not the company, but
the unit.
We do not think it telling that the Board’s Red Arrow rule
fails to disqualify employees who might not share the interests
of others in the unit or who have no intention to remain in the
bargaining unit after voting. The same may be said of the
Board’s eligibility rules followed for more than half a century.
In general employees are eligible to vote even if they intend to
resign the day after they cast their ballots. See Edward Waters
Coll., 307 N.L.R.B. 1321, 1322 (1992); Dayton Tire & Rubber
Co., 206 N.L.R.B. 614, 620 (1973). The rule determining
eligibility on the basis of the employee’s status at the specified
times promotes efficiency in administering representation
elections. Greater accuracy might be achieved by requiring
evidence that each voter will remain in the unit, but the Board
could reasonably decide that the gain in accuracy would be
outweighed by the delay and uncertainty attending such a
system. “There is rapid turnover of workers in many American
companies, and if it were a litigable question whether each
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worker casting a vote in a union election was likely still to be
employed when the union sat down to bargain with the employer
the regulation of union campaigns would be greatly
complicated.” Res-Care, Inc., 705 F.2d at 1471. Much the same
can be said of employees on medical leave. To require a
determination of their likelihood of returning to the unit would
require the Board to evaluate medical evidence, a subject on
which the Board has no expertise. These considerations support
the Red Arrow standard, as the Board has explained: the
standard avoids “open[ing] a new avenue of litigation, possibly
involving paid expert testimony, which is beyond the traditional
expertise of the agency and inimical to the efficient and
expeditious resolution of questions concerning representation.”
O’Dovero, 315 N.L.R.B. 1255, 1255 n.3 (1995); see Home Care
Network, Inc., 347 N.L.R.B. No. 80, at 1 (2006) (quoting
Vanalco, Inc., 315 N.L.R.B. 618, 618 n.4 (1994)).
We therefore join other courts of appeals in upholding the
Red Arrow standard. See Cavert Acquisition Co. v. NLRB, 83
F.3d 598, 606 (3d Cir. 1996); Newly Weds Foods, Inc., 758 F.2d
at 7-8.
The Board’s application of the standard in this case
supported its result. Before the election Abbott did not inform
Grant that it had fired her or laid her off, and Grant had not
resigned. Abbott’s argument that Grant removed herself from
the unit – that she was effectively laid off – does not change our
analysis. That characterization of her situation did not remove
her from the terms of Red Arrow, and Abbott’s counsel
acknowledged as much at oral argument. In any event, Grant’s
employment status was not ambiguous – she was an employee
on medical leave. There is additional evidence supporting the
Board’s conclusion but it is unnecessary to recount. Abbott also
argues about the effect of the Red Arrow standard on employers’
compliance with state and federal employment discrimination
laws. But we see no conflict between the standard and those
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laws. An employer who permanently transfers an employee to
a non-unit position satisfies an exception to Red Arrow.
Termination is not necessary to prevent an employee from
voting in a unit that he will never rejoin.
Abbott’s petition for review is denied and the Board’s
cross-application for enforcement is granted.
So ordered.