Medline Industries, Inc. v. N.L.R.B.
| Decision Date | 26 February 1979 |
| Docket Number | No. 77-2185,77-2185 |
| Citation | 593 F.2d 788 |
| Parties | 100 L.R.R.M. (BNA) 3202, 85 Lab.Cas. P 11,139 MEDLINE INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
S. Richard Pincus, Chicago, Ill., for petitioner.
Lynne E. Deitch, N. L. R. B., Washington, D. C., for respondent.
Before PELL and TONE, Circuit Judges, and WHELAN, Senior District Judge. *
This is a petition for review of an order of the National Labor Relations Board (Board) which adopted the recommended order of an Administrative Law Judge (ALJ). The ALJ concluded 1 that Medline Industries, Inc. (the Company) 2 violated §§ 8(a)(1), (3), and (5) 3 of the National Labor Relations Act (Act). He set aside the results of a representation election held on June 23, 1975, in which the employees rejected union representation by a vote of 16 to 5, with 7 challenged ballots. He also ordered the Company to bargain upon request with Teamsters Local No. 743 (the Union) pursuant to the dictates of N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).
The Company argues that neither the findings of unfair labor practices nor the Gissel bargaining order is supported by substantial evidence from the record considered as a whole as required for enforcement by this court. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We will first review the Company's contentions regarding the propriety of the bargaining order and then look at the validity of the unfair labor practices findings.
In Gissel, 395 U.S. at 594, 614, 89 S.Ct. at 1930, the Supreme Court upheld the Board's remedial authority to order an employer to bargain with a union when the union has obtained authorization cards from a majority of the employees in an appropriate unit and when the employer has committed unfair labor practices which "interfere with the (Board's) election processes and tend to preclude the holding of a fair election." The Court indicated that this extraordinary remedy would be appropriate if the "Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order . . . ." Id. at 614-15, 89 S.Ct. at 1940.
In the present case, the Company contests the appropriateness of the bargaining order on the ground that the Union did not have the requisite authorization cards from a majority of the employees in the appropriate unit. The ALJ found that the Union had properly secured authorization cards from 16 employees by May 15, 1975, the date the Union wrote the Company demanding recognition. On that date, the ALJ found, the unit consisted of 28 employees. The Company received the demand letter on May 19, 1975 at which time, the ALJ found, the unit consisted of 29 employees. The parties stipulated that the appropriate unit was defined as
all full-time and regular part-time warehouse employees at the employer's warehouse now located at 1825 Shermer Road, Northbrook, Illinois, including summer employees and kit makers; but excluding clerical employees, janitors, sales trainees, guards and supervisors as defined in the Act. . . .
The Company argues that the Board improperly excluded from the unit employees Lowman and Thurman and that the Board improperly counted the authorization cards of employees Youngs and Witt who the Company alleges signed their cards only after union misrepresentations and coercion. If the Company is correct regarding at least three of these four employees, the Union did not have a majority of authorization cards and the bargaining order cannot be enforced. We will analyze the Company's arguments and the evidence supporting the Board's findings as to these employees. We do so, of course, fully recognizing that we must enforce the Board's findings if there is substantial evidence in the record considered as a whole to support them.
The ALJ found that Thurman was not a member of the unit on May 15 or 19, the critical dates on which majority status was determined. He found that Thurman was "no longer a regular employee . . . and there is no reasonable likelihood or expectation of his return as such in the foreseeable future." The ALJ, however, did not focus on the critical dates and ignored well-established Board law, enforced by the courts, that employees on sick leave are presumed to remain in that status for unit eligibility purposes until recovery, and a party seeking to overcome that presumption must affirmatively show that the employee has resigned or been discharged. N.L.R.B. Outline of Law & Procedure in Representation Cases at 284 (1974); See N.L.R.B. v. Staiman Brothers, 466 F.2d 564, 566 (3d Cir. 1972); Lake City Foundry Company v. N.L.R.B., 432 F.2d 1162, 1170 (7th Cir. 1970); Food Employees, Local 347 v. N.L.R.B., 137 U.S.App.D.C. 248, 252, 422 F.2d 685, 689 (1969); Trailmobile Division, Pullman, Inc. v. N.L.R.B., 379 F.2d 419, 423 (5th Cir. 1967); Miami Rivet Company, 147 N.L.R.B. 470, 483 (1964); L. D. McFarland Co., 121 N.L.R.B. 577, 578 (1958); Sylvania Electric Products, Inc., 119 N.L.R.B. 824, 832 (1957); Foley Manufacturing Co., 115 N.L.R.B. 1205, 1206 (1956); Wright Manufacturing, 106 N.L.R.B. 1234, 1236-37 (1953).
Thurman had worked continuously for the Company since January 1972. In January 1975 he was placed on medical leave as a result of a kidney ailment. He was not terminated until May 30, 1975, well after the critical dates for determining the card majority. He gave the Company no reason to believe that he would not return to work until he failed to respond to the Company's May 22, 1975, letter inquiring of his expected return date. That he was on sick leave on May 15 and 19, and thus a member of the unit, is supported by uncontradicted and compelling evidence. For example, the Company provided Thurman, during this sick leave from January 1975 through May 1975, its complete package of fringe benefits, including hospitalization, and salary continuation and life insurance.
The Board's only evidence that Thurman should have been excluded because he was not an employee on the critical dates is that the Company's "New Employee Guide" provides that Company policy does not permit a leave of any sort for more than 21 days for an employee with less than three years seniority. (Thurman had slightly less than three years seniority when he went on sick leave.) The Board argues that under this policy Thurman was terminated 21 days after he began his sick leave in January 1975. Reliance on this "New Employee Guide" does not provide substantial evidence to support the Board's position because the Company's continuation of benefits indicates that it did not apply the policy to Thurman. Furthermore, Thurman returned to work on March 24, 1975, and worked a full day. If the Company policy expressed in the Guide applied to him, he would not have been permitted to return on that date. Consistently with this conduct, a Company official testified that the sick leave policy in the Guide did not apply to employees, including Thurman, who had been with the Company prior to the introduction of the Guide. Our review of the evidence, therefore, reveals no substantial evidence to support the Board's exclusion of Thurman from the appropriate unit.
The ALJ excluded Lowman from the unit notwithstanding objections from the Company. The ALJ concluded that Lowman had the "hallmarks of a supervisor," and that if she was not a supervisor, as defined by the Act, she was "basically a 'clerical employee,' a category expressly excluded from the stipulated unit." The ALJ ultimately relied on the latter ground. 4 Accordingly, we now turn to the evidence supporting Lowman's classification as a clerical employee.
Lowman spent at least 70% Of her time in the warehouse making kits, and spent only a small portion of her time in the office area doing clerical work. Employees who perform dual functions are treated like part-time employees for unit determination purposes. N.L.R.B. v. Ga., Fla., Ala. Transp. Co., 566 F.2d 520, 522 (5th Cir. 1978). Even if they spend less than a majority of their time on unit work, they are included in the unit so long as they regularly perform duties similar to those performed by unit employees, for sufficient periods of time to demonstrate that they have a substantial interest in working conditions in the unit, and thus that they share a community of interest with the unit employees. See Alterman Transport Lines, 178 N.L.R.B. 122, 127 (1969); Faulks Bros. Construction Co., 176 N.L.R.B. 324, 330 (1969); Berea Publishing Co., 140 N.L.R.B. 516, 519 (1963).
We are of the opinion that the record does not contain substantial evidence to support the ALJ's decision to exclude Lowman. Prior to March 1974, Lowman worked full time in the warehouse as a kit maker and handled the related paperwork in the kit making area of the warehouse. She took on some additional clerical work in March 1974 until June 1975. This clerical work, however, was minimal, and appears to have been primarily a temporary measure to fill in for a secretary who could not arrive before 8:45 a. m. Lowman was asked to perform her kit assembly and paperwork functions in the office between 8:00 a. m. and 8:45 a. m. and during the noon lunch hour and to answer the phone for that secretary during these times. These were the only times she spent in the office area. Her only other clerical duties were routine handling of piece work tickets and other forms relative to the receipt and shipment of orders. These were plant clerical duties which she normally performed...
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