                                                                                                                           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Precedential or Non-Precedential: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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    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. at

445 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


                                  21
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,


                                 23
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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