83 F.3d 598 (3rd Cir. 1996), 95-3231, Cavert Acquisition Co. v. N.L.R.B.

Docket Nº:95-3231, 95-3293.
Citation:83 F.3d 598
Party Name:CAVERT ACQUISITION CO., d/b/a Cavert Wire Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAVERT ACQUISITION CO., d/b/a Cavert Wire Company, Respondent.
Case Date:May 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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83 F.3d 598 (3rd Cir. 1996)

CAVERT ACQUISITION CO., d/b/a Cavert Wire Company, Petitioner,





CAVERT ACQUISITION CO., d/b/a Cavert Wire Company, Respondent.

Nos. 95-3231, 95-3293.

United States Court of Appeals, Third Circuit

May 2, 1996

Argued Dec. 5, 1995.

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[Copyrighted Material Omitted]

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Mark S. Shiffman (Argued), Jackson, Lewis, Schnitzler & Krupman, Pittsburgh, PA, for Petitioner-Respondent Cavert Acquisition Co.

Aileen A. Armstrong, Linda J. Dreeben, Meredith L. Jason (Argued), National Labor Relations Board, Washington, D.C., for Respondent-Petitioner NLRB.

Before SLOVITER, Chief Judge, STAPLETON and SAROKIN, Circuit Judges.


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.




Election and Aftermath

Cavert Acquisition Company 1 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.

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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 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.


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 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, 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

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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.

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.




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, 105 S.Ct. 984, 987, 83 L.Ed.2d 986 (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, 105 S.Ct. at 987; South Prairie Constr. Co. v. Local 627, Int'l Union of Operating Engineers, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (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 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...

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