Cavert Acquisition Co. v. National Labor Relations Board

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
5-2-1996
Cavert Acquisition v. NLRB
Precedential or Non-Precedential:
Docket 95-3231,95-3293
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"Cavert Acquisition v. NLRB" (1996). 1996 Decisions. Paper 168.
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-3231
CAVERT ACQUISITION CO.,
d/b/a Cavert Wire Company,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
No. 95-3293
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
CAVERT ACQUISITION CO.,
d/b/a Cavert Wire Company,
Respondent
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
(NLRB Docket No. 6-CA-26733)
Argued December 5, 1995
Before: SLOVITER, Chief Judge,
STAPLETON and SAROKIN, Circuit Judges
(Opinion Filed May 2, 1996)
1
Mark S. Shiffman (Argued)
Jackson, Lewis, Schnitzler & Krupman
Pittsburgh, PA l5222
(Attorney for Petitioner-Respondent
Cavert Acquisition Co.)
Aileen A. Armstrong
Linda J. Dreeben
Meredith L. Jason (Argued)
National Labor Relations Board
Washington, D.C. 20570-0001
(Attorneys for Respondent-Petitioner NLRB)
OPINION OF THE COURT
SLOVITER, Chief Judge.
Cavert Acquisition Company has petitioned for review of
the order of the National Labor Relations Board (Board)
compelling it to bargain with the United Mine Workers of America,
AFL-CIO (Union); the Union has cross-petitioned for enforcement
of the Board's order. The underlying dispute concerns a union
election that was held in 1993 to determine whether certain
Cavert employees should be represented by the Union.
Specifically, Cavert challenges the Board's ruling that an
employee who had been out of work for five months due to an
injury was eligible to vote. Cavert argues first that the Board
applied the wrong standard in reaching the eligibility
determination and, alternatively, that the standard was
improperly applied in this case.
2
I.
FACTS AND PROCEDURAL HISTORY
A.
Election and Aftermath
Cavert Acquisition Company1 is a manufacturer of steel
wire. On December 21 and 22, 1993, pursuant to a stipulated
election agreement entered into between Cavert and the Union, the
Board conducted an election among production and maintenance
employees at Cavert's manufacturing plant in North Union
Township, Pennsylvania, to determine whether they should be
represented by the Union.
During the election the Board agent conducting the
election objected to the ballot of Larry Morris because his name
did not appear on the eligibility list submitted by Cavert.
Morris had been absent from work since a work-related injury five
months earlier. The Union challenged the ballots of two
employees on the ground that they were supervisors and therefore
excluded from the bargaining unit. A tally of the uncontested
ballots yielded 16 in favor of the Union and 14 opposed. The
three contested ballots were therefore potentially determinative
of the election's outcome.
Pursuant to an order of the Acting Regional Director of
the Board, a hearing was held before a hearing officer concerning
the challenged ballots. The hearing officer's report recommended
1
When this dispute first arose, the name of the employer was
Cavert Wire Company. On August 23, 1994, the company was
purchased and the business was continued in unchanged form under
the name Cavert Acquisition Co., d/b/a Cavert Wire Company.
3
that all three challenges be overruled and the ballots opened and
counted. Cavert and the Union filed exceptions. The Board then
issued an order adopting the findings and recommendations of the
hearing officer and directing that the disputed ballots be
counted. The revised tally was 17 in favor of the Union and 16
opposed. Accordingly, on August 4, 1994 the Board certified the
Union as the employees' exclusive collective bargaining
representative.
Following certification, Cavert refused to bargain with
the Union, claiming that the certification was invalid because of
the inclusion of Morris's vote. The Union subsequently filed an
unfair labor practice charge with the Board. On motion by the
Board's General Counsel, the Board granted summary judgment
against Cavert on April 17, 1995, ordering it to bargain with the
Union. The challenges as to the supervisors are no longer in
dispute, and only Morris's eligibility remains at issue.
B.
Larry Morris
Morris began working for Cavert in early 1990 and
worked steadily, apparently as a cross-trained production worker,
until July 21, 1993, when he fell from a ladder sustaining injury
to his left leg. Since the accident he has not worked at Cavert
or anywhere else. On the day following the injury, Morris was
examined by a doctor who gave him a handwritten note stating that
he would be "unable to work until further notice." SA. at 6.
Morris gave this note to Cavert. Shortly thereafter, Morris
4
filed a workers' compensation claim. The claim was denied, and
he filed a timely appeal.
Cavert sent Morris a letter dated July 30, 1993
informing him that his medical benefits would be terminated as of
September 1, 1993 and advising him that under the Consolidated
Omnibus Budget Reconciliation Act (COBRA), 29 U.S.C. § 1161-68,
he had the right to continue his benefits at his own expense.
With the letter, Cavert enclosed a form it had prepared for
employees that listed five "qualifying events" that would permit
an employee whose group health benefits would end as a result of
the event to elect to continue coverage. The only event arguably
applicable to Morris was "[t]ermination of the employee's
employment . . . or reduction of hours worked which renders the
employee ineligible for coverage." App. at 135. Morris did not
take any action in response to this letter, and his medical
insurance ended on September 1, 1993.
In the weeks following the accident, Morris phoned
Cavert a number of times to ask about his workers' compensation
claim and to request paperwork relating to his car insurance. He
also visited the plant several times in an effort to obtain the
needed paperwork. After the executive assistant to Aaron
Swimmer, Cavert's chief executive officer, told him some time in
September 1993 to stop calling or visiting the facility, Morris
had no further contact with Cavert other than one visit three
months later to retrieve a radio from his locker.
In his testimony before the hearing officer, Swimmer
stated that Morris was removed from the payroll after his injury,
5
App. at 82; that removal did not necessarily indicate that he was
no longer an employee, since Cavert also removes from the payroll
employees who are temporarily absent on sick leave or vacation,
App. at 84-85; but that an employee's absence from the payroll in
conjunction with a COBRA letter did constitute termination, id.
Swimmer further testified that Morris's position was
not filled until 30 to 60 days after his injury; that Swimmer
worked with the other employees until then, hoping Morris would
return; App. at 69-70, 87; and that although Cavert's personnel
handbook states that insurance coverage is not terminated until
an employee has been absent from work for three months, Swimmer
had the COBRA letter about insurance coverage termination sent to
Morris just nine days after his injury because he viewed Morris's
workers' compensation claim as "questionable" and was hoping the
letter would persuade Morris to drop the claim and come back to
work. SA. at 4.
Morris was sent to an independent physician in
connection with his workers' compensation claim. That doctor
issued a report dated September 2, 1993 releasing Morris for
light duty, and the workers' compensation carrier informed Cavert
of that report sometime in September 1993. Swimmer testified
that if Morris had requested it at that time, he would have given
him light duty work, App. at 87-89, but Morris testified that he
was never informed that the doctor had released him for light
duty, and that none of the other doctors he had seen since the
accident had released him to work, either for light or regular
duty. App. at 24, 102.
6
Based in part on credibility determinations, the
hearing officer rejected the challenge to Morris's ballot. The
Board was unanimous in both its opinion adopting the hearing
officer's recommendation and its opinion granting summary
judgment on the finding that Cavert committed an unfair labor
practice. This court has jurisdiction under 29 U.S.C. § 160(e) &
(f) over Cavert's petition for review and the Board's cross-
application for enforcement.
II.
DISCUSSION
A.
Board Rule for Eligibility to Vote
As the Supreme Court has made clear in the context of a
case considering a challenge to employee ballots cast in a union
representation election, it is the Board that has the statutory
authority to define bargaining units. See NLRB v. Action
Automotive, Inc., 469 U.S. 490, 494 (1985). That authority is
explicit in section 9(b) of the National Labor Relations Act. Id.The Board has exercised that authority by focusing on whether the
employees permitted to participate in the privileges of a
bargaining unit, including voting, share a community of interest.
See Action Automotive, 469 U.S. at 494; South Prairie Constr. Co.
v. Local 627, Int'l Union of Operating Engineers, 425 U.S. 800,
805 (1976).
In general, an employee who is employed on the last day
of the preceding payroll period and on the day of the election is
eligible to vote in a certification election. See NLRB v. Newly
7
Weds Foods, Inc., 758 F.2d 4, 7 (1st Cir. 1985); Robert A.
Gorman, Basic Text on Labor Law 43 (1976). Because the
bookkeeping and payroll practices of employers differ, the Board
has developed rules for determining when employees in different
circumstances share the community of interest requisite for
eligibility to vote in an election.
Central to the issue in this case is the Board's rule
that distinguishes between the manner in which voting eligibility
is proven for employees who are on layoff at the time of an
election and those who are out for medical reasons. It has long
been the Board rule that a laid-off employee who, on the day of
the election, has a "reasonable expectation" of returning to work
is eligible to vote. Higgins, Inc., 111 N.L.R.B. 797, 799
(1955). In contrast, the Board rule is that employees absent
from work for medical reasons are presumed to continue in
employment status and remain eligible to vote "unless and until
the presumption is rebutted by an affirmative showing that the
employee has been discharged or has resigned." Red Arrow Freight
Lines, Inc., 278 N.L.R.B. 965 (1986). Cavert's principal
argument is that the Board's distinction between laid-off
employees and those out for medical reasons is unreasonable and
"unprincipled," and it argues for application of the "reasonable
expectation" rule to Morris.
Apparently because Cavert recognizes that the rule is
well within the Board's powers, Cavert fires its principal attack
on the application of any deference to the Board's rule. The
Board, not surprisingly, argues that we should accord the usual
8
deference both to its formulation of rules and its evaluation of
the facts in a particular case.
B.
Deference to be Accorded the Board Rule
In general, unless an issue is governed by an
unambiguous statutory provision, courts must defer to an agency's
interpretation of a statute it has been entrusted to administer.
Thus, the function for the court is not to impose its own
interpretation of the statute, but simply to determine whether
the agency's interpretation "is based on a permissible
construction of the statute." INS v. Cardoza-Fonseca, 480 U.S.
421, 445 n.29 (1987). The agency's interpretation will be "given
controlling weight unless [it is] arbitrary, capricious, or
manifestly contrary to the statute." Id.In particular, in considering the validity of standards
and rules developed by the Board, courts must accord the Board
substantial deference because of its special expertise in
"applying the general provisions of the [National Labor
Relations] Act to the complexities of industrial life." NLRB v.
Erie Resistor Corp., 373 U.S. 221, 236 (1963). This same
principle is applied to rules developed by the Board through the
adjudicatory process. See, e.g., NLRB v. J. Weingarten, Inc.,
420 U.S. 251, 266-67 (1975) (rules developed and applied by Board
subject to limited judicial review and upheld as long as
"permissible" under the statute); see also Jamesway Corp. v.
NLRB, 676 F.2d 63, 67 (3d Cir. 1982) (court reviews policies and
9
procedures established by Board for conduct of elections under
abuse of discretion standard).
Cavert argues that our review is plenary, because the
standard enunciated in Red Arrow has been inconsistently applied
by the Board. It refers us to the Supreme Court's opinion in
Cardoza-Fonseca, where the Court, in reviewing the general
principles according deference to an agency, stated that where an
agency's position "conflicts with [its] earlier interpretation
[it] is 'entitled to considerably less deference' than a
consistently held agency view." Cardoza-Fonseca, 480 U.S. at 446
n.30 (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).
At issue in that case was the standard of proof to be
applied to the statutory provision authorizing the Attorney
General to grant asylum to an alien. After concluding that the
statutory language and history did not support the government's
then current interpretation that establishment of "a clear
probability of persecution" was the same as showing a "well-
founded fear of persecution," the Court noted this was "a pure
question of statutory construction for the courts to decide." Id.
at 446. It also noted in a footnote that the Bureau of
Immigration Appeals had answered the question in at least three
different ways, had a "long pattern of erratic treatment of this
issue," and "even today does not completely agree, with the INS's
litigation position that the two standards are equivalent." Id.
at 447 n.30. Because the holding which gave decreased deference
to the agency was primarily based on the Court's interpretation
of the statutory language and history, the prior inconsistency in
10
the agency's interpretation may have played only a minor role, if
any, in the Court's decision.
Moreover, Cardoza-Fonseca was not a labor case, and
the Supreme Court has been particularly cautious in the labor
field, recognizing that the development of standards by the Board
is an "evolutionary process," and that the Board will "modif[y]
and reform[] its standards on the basis of accumulating
experience" and in light of changing industrial practices.
Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961). As the
Court recognized in Weingarten, "[t]o hold that the Board's
earlier decisions froze the development of this important aspect
of the national labor law would misconceive the nature of
administrative decisionmaking." 420 U.S. at 265-66. Thus, in
Weingarten the Court approved a rule developed by the Board that
departed from a number of its prior cases. Accordingly, the mere
fact that the Board may have had an inconsistent position in the
past does not necessarily signify that it should be accorded no
judicial deference.
Cavert relies primarily on some dicta in the majority
opinion of this court in NLRB v. Economics Laboratory, Inc., 857
F.2d 931, 935 (3d Cir. 1988). In that case, we reversed the
Board's determination that employees who were on long-term
disability were still entitled to vote. Although we noted in
passing that several of the employer's arguments had "much to
commend them," and stated in that context that "[i]t is not clear
that the Red Arrow test deserves judicial deference," we
immediately thereafter stated that "we need not reach these
11
issues" because the factual issue was dispositive. Id. at 935.
Significantly, therefore, the case was decided using the Red
Arrow standard.
Moreover, following our decision in Economics
Laboratory, the Supreme Court in NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775 (1990), once again reiterated its
position that "we will uphold a Board rule as long as it is
rational and consistent with the Act, Fall River [Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987)], even if we
would have formulated a different rule had we sat on the Board,
Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404,
413, 418 (1982)." 494 U.S. at 787. The Court emphasized the
policy of deference notwithstanding some prior inconsistency,
citing Weingarten for the proposition that "a Board rule is
entitled to deference even if it represents a departure from the
Board's prior policy." Id. (emphasis added).
Nor are we convinced that the Board's rule would not be
entitled to deference even if there had been some inconsistency
or vacillation by the Board in applying the "rebuttable
presumption rule" to the eligibility of "sick leave" employees
before the Board clearly enunciated its position in its 1986 Red
Arrow decision. In NLRB v. Newly Weds Foods, Inc., 758 F.2d 4(1st Cir. 1985), then Judge, now Justice, Breyer surveyed the
available case law and found that notwithstanding "a surprising
lack of uniformity in the relevant materials, with some cases
[including court as well as Board] speaking of 'reasonable
expectations,' some referring to a 'presumption' of employment in
12
the absence of communicated termination, and some speaking of
both, we have found a basic coherence in the Board's approach."
Id. at 8 (citations omitted).
Judge Breyer's historical survey led him to note that
more than thirty years before, the Board had stated that under
its practice, "'an employee on sick leave . . . is eligible to
vote in an election.'" 758 F.2d at 8 (quoting Whiting
Corporation, 99 N.L.R.B. 117, 123, rev'd, 200 F. 2d 43 (7th Cir.
1952)). This standard is not substantially dissimilar to the one
the Board applies today. As Judge Breyer recognized, the Board
in Whiting clarified that where it was difficult to ascertain
whether an employee has lost or retained status as an employee,
it applied the "'reasonable expectation of further employment'
standard as an aid in resolving the question." Id. (quoting
Whiting, 99 N.L.R.B. at 123) (emphasis in Newly Weds). Based on
this clarification, Judge Breyer then noted:
According to this standard, the Board uses the
"reasonable expectations" of 'sick leave' employees
only to clarify ambiguities of employment status. The
administrative need for such a standard is sufficiently
plausible to support the conclusion that this rule lies
within the agency's statutory powers.
Id.
When the Seventh Circuit reversed the Board's decision
in Whiting on the ground that the Board's factual finding that
the employee was eligible to vote was clearly against the weight
of the evidence, it commented in a cursory paragraph at the end
of the opinion that the reasonable expectation test was "well-
13
established." 200 F.2d at 45. The court was mistaken because
the Board cases to which it cited dealt almost exclusively with
layoffs rather than medical leave. See id. at 45. As Judge
Breyer commented, the court and the Board "passed like ships in
the night." Newly Weds Foods, 758 F.2d at 9.
It was this error that may have led a number of courts
to conclude that the reasonable expectation test applies to
employees on sick leave. See NLRB v. New England Lithographic
Co., 589 F.2d 29, 32 (1st Cir. 1978); Lake City Foundry Co. v.
NLRB, 432 F.2d 1162, 1170 (7th Cir. 1970); NLRB v. Atkinson
Dredging Co., 329 F.2d 158, 161, (4th Cir.), cert. denied, 377
U.S. 965 (1964). We accord these cases little weight,
particularly in light of a later Seventh Circuit decision holding
that the rebuttable presumption test (which Cavert denominates
"unprincipled") is "well-established Board law." Medline Indus.,
Inc. v. NLRB, 593 F.2d 788, 791 (7th Cir. 1979).
Notwithstanding the statement in the Seventh Circuit's
Whiting decision to the contrary, there is a line of Board cases
going back to the 1950's holding that employees on sick leave
were eligible to vote unless they had quit or been discharged,
see, e.g., Otarion Listener Corp., 124 N.L.R.B. 880, 881 (1959);
L. D. McFarland Co., 121 N.L.R.B. 577, 578 (1958); Sylvania
Electric Prod., Inc., 119 N.L.R.B. 824, 832 (1957); Foley Mfg.
Co., 115 N.L.R.B. 1205, 1206 (1956); Wright Mfg. Co., 106
N.L.R.B. 1234, 1236-37 (1953), albeit one also finds an
occasional detour in the Board's use of language, see Sexton
Welding Co., 96 N.L.R.B. 454, 456 (1951) (since employer took no
14
steps to discharge sick employee, he had "reasonable expectation"
of continued employment). Apparently it was in Miami Rivet Co.,
147 N.L.R.B. 470, 483 (1964), that the Board first characterized
its standard of proof for voting in terms of a "presumption,"
stating that "an employee who is inactive on sick leave is
presumed to continue in that status until recovery and . . . the
party seeking to overcome that presumption must make an
affirmative showing that the employee has resigned or that the
employer has earlier discharged him." Id. at 483. In the 1970's
the Board's own internal guidelines also clearly endorsed the
rebuttable presumption test. See Office of General Counsel,
Outline of Law and Procedure in Representation Cases 284 (1974)
(cited in Newly Weds Foods, 758 F.2d at 7).
Admittedly, despite this seemingly clear formulation of
the rule, some subsequent Board decisions made reference to
reasonable expectations in evaluating the voting eligibility of
employees absent due to illness. See Price's Pic-Pac
Supermarkets, Inc., 256 N.L.R.B. 742, 743 (1981), enf'd 707 F.2d
236 (6th Cir. 1983); Cato Show Printing Co., 219 N.L.R.B. 739,
754 (1975). Thus, when the Board made another attempt in Red
Arrow to clarify the rule, by stating that the rebuttable
presumption standard is "[t]he fundamental rule governing the
eligibility of an employee on sick or maternity leave," 278
N.L.R.B. at 965, it explained that the use of the phrase
"reasonable expectation of employment" in some prior sick leave
cases had been simply an "inadvertent" use of language in
"isolated" cases. Id. at 965 n.5.
15
We have no reason not to accept that explanation, given
the number of such election issues that have been raised over the
years, and the changes in Board personnel. Indeed, we can think
of few appellate courts that have spoken on any issue over the
years with precise consistency of language. We find most
significant that in the nine years since the Red Arrow decision
there has been virtual consistency in application of the
rebuttable presumption rule--now denominated as the "Red Arrow
test." See Mediplex of Connecticut, Inc., 319 NLRB, No. 39, slip
op. at 19 (1995); Monfort, Inc., 318 NLRB, No. 19, slip op. at 1,
n. 5 (1995); Appalachian Machine and Rebuild Co., 317 NLRB 1343,
1351 (1995); Virginia Concrete Co., 316 NLRB 261, 267 (1995);
Pepsi-Cola Co., 315 N.L.R.B. 1322, 1324 (1995); O'Dovero, 315
N.L.R.B. 1255 (1995); Vanalco, Inc., 315 N.L.R.B. 618 (1994);
Thorn Americas, Inc., 314 N.L.R.B. 943 (1994); Edward Waters
College, 307 N.L.R.B. 1321, 1322 (1992); Custom Bent Glass Co.,
304 N.L.R.B. 373, 374 (1991); K. Van Bourgondien & Sons, Inc.,
294 N.L.R.B. 268, 274-75 (1989); Jennings & Web, Inc., 288
N.L.R.B. 682, 696-97 (1988), enf'd 875 F.2d 315 (4th Cir. 1989);
Atlanta Dairies Coop., 283 N.L.R.B. 327 (1987).
In light of this pattern of rulings, we believe it is
of little value to engage in the minutiae of a case-by-case
analysis of each post-Red Arrow case to which Cavert points. It
is unclear, for example, whether Advance Waste Systems, Inc., 306
N.L.R.B. 1020 (1992), Cavert's principal example, was a sick
leave case or a layoff case, as the Board has denominated it. The
Board has explicitly "disavow[ed] any construction of Advance
16
Waste Systems as appropriately applying a 'reasonable expectation
of employment' test to sick leave cases, and we continue to
adhere to the Red Arrow test." Pepsi-Cola Co., 315 N.L.R.B.
1322, 1324 (1995); accord Thorn Americas, Inc., 314 N.L.R.B. 943(1994).
In the other two post-Red Arrow cases Cavert cites,
Keeler Brass Automotive Group, 301 N.L.R.B. 769 (1991), and
Liston Aluminum, 296 N.L.R.B. 1181, 1203 (1989), enf'd 936 F.2d
578 (9th Cir. 1991), the Board used reasonable expectation
language but based its determination solely on the fact that
there had been no affirmative termination of employment. At
most, these cases cited by Cavert present minor inconsistencies
in the Board's otherwise uniform adherence to the rebuttable
presumption test since its definitive pronouncement in Red Arrow.
Cavert makes an additional argument based on the fact
that certain members of the Board have dissented from application
of the Red Arrow rule. We fail to see its relevance,
particularly in light of the fact that the Board member on whose
dissents it relies, Member Cohen, was on the Board panels that
ruled in this case. Member Cohen joined both the Board's
unanimous rulings granting summary judgment and adopting the
recommendation of the hearing officer directing that Morris's
ballot be counted. A footnote to that latter Decision and
Direction states that:
In agreeing that Larry Morris is an eligible voter,
Member Cohen finds that, under either of the views
expressed in Red Arrow Freight Lines, 278 NLRB 965(1986), Morris retained his employee status as of the
determinative date.
17
App. at 110.
Giving the Board rule the appropriate deference, we
turn therefore to consider whether the Board's Red Arrow test is
"arbitrary" or "capricious." INS v. Cardoza-Fonseca, 480 U.S. at445 n.29. Clearly it is not. The Board explains that it favors
an objective test that is simple, predictable and easily
administered. It prefers a "bright-line" rule that avoids
inquiry into the intentions of the parties or the employee's
medical prognosis. The Board is particularly concerned that
applying the reasonable expectations test to medical leave
situations would require it to evaluate medical evidence and
would thereby "open 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 n.3 (1995); see also Vanalco, Inc.,
315 N.L.R.B. 618 n.4 (1994) (Red Arrow test avoids "endless
investigation into states of mind or future prospects" (quoting
Whiting Corp., 99 N.L.R.B. 117, rev'd 200 F.2d 43 (7th Cir.
1952))); NLRB v. Staiman Bros., 466 F.2d 564, 566 n.2 (3d Cir.
1972)(same).
The rebuttable presumption test represents a rational
attempt by the Board to balance the need to make accurate
determinations as to whether employees share a "community of
interest" against the necessity to make such determinations
quickly and definitively so that lengthy disputes regarding union
18
elections can be avoided and employment relations can proceed
normally, whether through collective bargaining or otherwise. We
are not in a position to hold that it was unreasonable for the
Board to have determined that engaging in fact-finding regarding
the medical prognosis of employees would be too time-consuming.
Cavert's contention that the Board's concerns regarding
the difficulty of evaluating medical evidence under the
reasonable expectations test have been largely ameliorated by
passage of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et
seq., is unconvincing. The Act requires an employee taking a
leave of absence for medical reasons to submit medical
documentation regarding the reason for the leave and the
prognosis for return. Id. § 2613. We are unpersuaded that the
requirement that medical documentation be submitted to employers
will suddenly make such documentation easier for the Board to
interpret or will preclude the possibility that medical opinions
concerning an employee's condition or prognosis will conflict.
Moreover, it is for the Board, not this court, to determine
whether recent developments in the law warrant a change in its
standard.
We recognize that there may be instances in which it
may be clear from objective factors that an employee who has been
out for medical reasons no longer retains the requisite community
of interest, notwithstanding the failure of either party to
communicate that termination of employment. As the Board's
counsel stated at oral argument, the employer concerned about
that issue could frame a personnel rule that employees out for
19
medical reasons for a specified period will be considered to have
been terminated. In any event, the difficulty that may be
presented in occasional cases would not justify us in disturbing
the Board's Red Arrow standard using a rebuttable presumption
which it, in its expertise, has decided for rational reasons is
the best approach to determining which employees are eligible to
vote.
Accordingly, we turn to consider whether Cavert has
presented any reason to disturb the Board's findings in this
particular case.
C.
Substantiality of Evidence to Support the Findings
When reviewing the Board's findings of fact or
application of a valid rule to the facts, we will uphold the
Board's decision as long as it is supported by substantial
evidence on the record. NLRB v. Asbury Graphite Mills, Inc., 832
F.2d 40, 43 (3d Cir. 1987); NLRB v. Certified Testing Labs.,
Inc., 387 F.2d 275, 277 (3d Cir. 1967). We consider therefore
whether there is substantial evidence to support the finding made
by the hearing officer, and adopted by the Board, App. at 119,
that "there is no evidence to support the conclusion that [at the
time of the election] Morris' employment [had] affirmatively been
terminated." App. at 103. Cavert, as the party seeking to
preclude Morris's vote, bears the burden of proof. Economics
Laboratory, 857 F.2d at 936.
In general, an affirmative termination of employment in
this context requires "a manifestation of the intent to terminate
20
which is clearly communicated to the other party." NLRB v.
Staiman Bros., 466 F.2d 564, 566 (3d Cir. 1972). For example, in
Miami Rivet Co., 147 N.L.R.B. 470, 483 (1964), the Board held
that an employee out of work due to a heart attack was eligible
to vote, even though the employer had decided to discharge him,
because the employer had never communicated that intention to the
employee prior to the election. See also Otarion Listener Corp.,
124 N.L.R.B. 880, 881 (1959); Wright Mfg. Co., 106 N.L.R.B. 1234,
1236-37 (1953). Thus, Cavert cannot merely point to its own
subjective intention or understanding that the employment
relationship had been terminated to establish an affirmative
termination.
However, it is not necessary that the communication
that effects the termination be a formal termination letter,
although that facilitates proof. In instances where the
surrounding circumstances make clear that the employment
relationship has ended, an affirmative termination has been found
even in the absence of any communication, whether formal or
informal. See Economics Laboratory, 857 F.2d at 937-38; Harry
Lunstead Designs, Inc., 270 N.L.R.B. 1163, 1164 (1984); Hercules,
Inc., 225 N.L.R.B. 241, 242 (1976).
Cavert produced no evidence of any specific
communication with Morris regarding his termination. Cavert
points to the facts, which the Board does not dispute, that
Morris never contacted Cavert to express a desire or ability to
return to work during the five months between his injury and the
election; was instructed by Cavert to stop contacting the
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company; was sent the July 30, 1993 letter terminating his health
insurance and failed to respond to it; and that Morris's name was
removed from the payroll. The hearing officer found these facts
did not show affirmative termination.
We consider them seriatim in light of the relevant
evidence. Clearly, Cavert cannot establish an affirmative
termination simply by showing a lack of communication between the
parties. Under the circumstances of this case, the mere fact
that Morris did not contact the company to discuss his desire or
ability to return to work is not probative of his termination of
employment, voluntary or not. The hearing officer found that
Morris was never told by a doctor that he could return to work, a
finding supported by substantial evidence. The doctor who saw
Morris the day after the injury had written a note that Morris
was "unable to work until further notice." SA. at 6. Although
the independent physician who examined Morris in September
advised the company he was released for light duty, the hearing
officer found credible Morris's testimony that he never knew of
that recommendation until he reviewed the doctor's report in
preparation for the hearing. There is no evidence to the
contrary, and we have no reason to disturb this credibility
determination.
The hearing officer also found that although "Morris
has not contacted the Employer to update the Employer on his
condition, or to inform the Employer when he will be able to
return to work," it was uncontroverted "that Morris was told some
time in September by an executive assistant to stop contacting
22
the Employer." App. at 102. Furthermore, the communication that
did occur between the parties did not manifest an intent to
terminate the employment. There is no evidence that at the time
that Morris was directed not to contact the company, any of the
representatives of the company made any statement to Morris about
the status of his job.
Cavert would have us draw the inference from the COBRA
letter, read in conjunction with the notice that accompanied it,
that Morris's employment had been terminated. However, the
letter contained no direct statement to that effect. Moreover,
Swimmer himself testified that at the time he sent the COBRA
letter his purpose in sending the letter was to persuade Morris
to come back to work, not to terminate his employment, and that
he did not then view Morris's employment as terminated.
Having no basis in the record to find that there was
any direct communication of a termination of Morris's employment
relationship, we consider whether the totality of the
circumstances made clear that there had been a termination of the
employment relationship--what this court previously referred to
as a "constructive termination." See Economics Laboratory, 857
F.2d at 937.
Cavert argues that termination is shown by the facts
that Morris cleaned out his locker a week after his injury and
that his position was filled. The evidence as to whether Morris
cleaned out his locker is inconclusive, however, and the hearing
officer made no relevant finding. Although Morris, in listing
all of his contact with the company following his injury,
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testified that he visited the plant several times in the weeks
following his injury, he did not state he cleaned out or even
retrieved items from his locker during those visits. In fact,
Morris's only reference to visiting his locker was that he went
to the plant to retrieve his radio from his locker in December
1993, some five months after the injury. Swimmer's testimony
that when he saw Morris at the plant one week after the accident
Morris told him "he was cleaning out his locker -- he came to get
some things from his locker," App. at 64, was uncorroborated.
Since the hearing officer found some of Swimmer's testimony
equivocal, we are not inclined to overturn her affirmative
finding of no communication of termination on this inconclusive
and contradicted evidence.
Finally, Cavert would have us find constructive
termination based on Swimmer's testimony that Morris had been
replaced 30 to 60 days after his injury. However, the hearing
officer gave little weight to the replacement noting Swimmer's
testimony that most of Cavert's employees are cross-trained and
perform interchangeable jobs. It is not clear whether Cavert
replaced Morris's particular position or simply hired an
additional worker. Indeed, the hearing officer considered
Swimmer's testimony that Morris was replaced, that until then he
had hoped Morris would return, that he sent the COBRA letter on
July 30, 1993, nine days after Morris's injury, but that he
considered Morris's employment terminated on September 1, 1993
when his health insurance benefits ended, and that Morris could
have returned for light duty work had he requested it sometime in
24
September. The hearing officer then found all of the above
testimony to be "very contradictory" and thus accorded it little,
if any, weight. App. at 104. Cavert has offered no reason for
us to disturb this credibility determination.
There are significant distinctions between the facts on
this record and those before the Board and court in the
constructive termination cases cited by Cavert. In Hercules,
Inc., 225 N.L.R.B. 241 (1976), the terms of an indefinite "leave
of absence" granted an ill employee by the employer, as
communicated to the employee, made it clear that in fact she had
been terminated and invited to reapply when she recovered from
her illness. She was "expressly" told that when she recovered
she would not get her job back immediately but would have to wait
for an opening, and that on return she would have no more
seniority rights than a new hire. 225 N.L.R.B. at 241-42.
Shortly after the employee left, the employer notified its own
headquarters that she had been terminated. Under the clear terms
of the personnel manual, she had by her absence lost her
seniority and recall rights months before the election. In light
of all these circumstances, the Board found an affirmative
termination despite the employer's failure to provide formal
notification to the employee.
In Harry Lunstead Designs, Inc., 270 N.L.R.B. 1163(1984), after an employee had been out of work for three months
due to an injury and the employer had determined that there was
little chance she would return, the employer changed its payroll
records and personnel files to indicate that she had been
25
terminated due to extended absence. Under these circumstances,
the Board found an affirmative termination despite the lack of
evidence of formal notification of the employee. 270 N.L.R.B. at
1164. No comparable evidence is in this record, where the
employer conceded that a change in payroll records does not
necessarily signify termination.
In Economics Laboratory, where we held that employees
in the employer's Long Term Disability (LTD) program had been
constructively terminated and were therefore ineligible to vote
under the Red Arrow standard despite the absence of any formal
termination letter, there was other evidence to show termination.
In order to participate in the LTD program employees had to be
totally disabled such that they were unable to work for pay and
absent from work due to disability for at least six months. 857
F.2d at 933. The company's written description of the LTD
Program "suggest[ed] that the participants [were] no longer
employees," inasmuch as it stated that "returning you to work
with the company will depend on your successful rehabilitation
and the availability of a job." Id. The positions of LTD
participants were filled with permanent replacements, and,
although they retained seniority rights for three years,
seniority was not a factor in rehiring. Thus, a returning LTD
participant was treated as a new applicant. Additionally, LTD
participants were removed from the payroll and the "Employee
Status Report," the document issued by the company for all
personnel decisions, and a person whose name did not appear on
the Employee Status Report was not deemed an employee by the
26
company. Id. at 937 n.11. Finally, two of the LTD participants
at issue in Economics Laboratory received social security
disability benefits which required them to prove an inability to
engage in any substantial gainful activity for at least twelve
months. Id. at 938. Notwithstanding some parallels to the case
before us, these critical differences convince us that Economics
Laboratory does not control.
Cavert asks us to take judicial notice of the decision
issued February 24, 1995 in Morris's workers' compensation case,
ruling that he was "totally disabled from his pre-injury job as
of July 22, 1993, to the present" and therefore eligible for
benefits. App. at 152. This was issued a year and two months
after the election and seven months after the Board ordered that
Larry Morris's ballot be counted, and thus was not part of the
record before the Board. In reviewing the Board's voting
eligibility determination, we must limit our consideration to the
evidence available at the time of the election, see NLRB v. Jesse
Jones Sausage Co., 309 F.2d 664, 666 (4th Cir. 1962), because
that is the only evidence relevant in considering whether its
findings are supported by the record. Accordingly, the 1995
workers' compensation decision is irrelevant.
Although we acknowledge that a different decision-maker
could have decided on these facts that a constructive termination
had occurred, it is not our role to substitute our judgment for
that of the Board. See NLRB v. L & J Equipment Co., 745 F.2d
224, 230 (3d Cir. 1984). There is substantial evidence in the
record to support the hearing officer's determination that there
27
was no constructive termination of Morris's employment prior to
the election, and therefore we will uphold the Board's decision.
III.
CONCLUSION
For the reasons set forth above, Cavert's petition for
review will be denied and the Board's cross-petition for
enforcement of its order will be granted.
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