Time Warner Cbl v. NLRB ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 1998 Decided November 6, 1998
No. 97-1524
Time Warner Cable,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Jon W. Tryon argued the cause for the petitioner.
Leslie Randolph, Attorney, National Labor Relations
Board, argued the cause for the respondent. Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel at the time the brief was filed, and
Peter Winkler, Attorney, were on brief. John D. Burgoyne,
Acting Deputy Associate General Counsel, entered an appear-
ance.
Before: Williams, Henderson and Garland, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Time Warner
Cable, Inc. (Time Warner) petitions for review of an order of
the National Labor Relations Board (NLRB or Board) con-
cluding that it engaged in an unfair labor practice by refusing
to bargain with the Communication Workers of America,
Local 1120 (Union). Time Warner Cable, 324 N.L.R.B. No.
25 (Aug. 5, 1997). The NLRB cross-applies for enforcement
of its order. Time Warner admitted that it refused to
bargain but challenged the validity of the Union's certification
based on the NLRB's disqualification of a challenged, and
potentially determinative, ballot. As explained below, we
conclude that the NLRB's decision was not based on substan-
tial evidence and therefore, grant Time Warner's petition and
deny the Board's cross-application for enforcement.
I.
On March 5, 1995, the Union petitioned the NLRB seeking
certification as the exclusive collective bargaining representa-
tive at Time Warner, formerly Paragon Communications d/b/a
Paragon Cable of Newburgh, New York (Cable),1 for "all full-
time and regular part-time service technicians ... employed
by the employer at or out of its 400 Auto Park Place,
Newburgh, New York facility." Paragon Communications
d/b/a Paragon Cable, Hearing Officer's Report (Sept. 18,
1996) (hereinafter Hearing Officer's Report), Joint Appendix
(JA) 7A. The original election ended in a tie and the Union
filed an objection alleging management misconduct. The
NLRB agreed with the Union and on September 25, 1995, it
ordered a second election. The Notice of Second Election
also specified the eligible voters:
__________
1 Time Warner's predecessor and Primestar operated as divi-
sions of Paragon Communications Northeast Division (Paragon
Included: All full-time and regular part-time service
technicians, installer technicians, warehouse coordinators,
customer service representatives, production staff, and
dispatchers employed by the employer at or out of its 400
Auto Park Place, Newburgh, New York Facility;
...
Eligible voters are those in the unit who were em-
ployed during the payroll period ... [ending September
15].
Paragon Communications d/b/a Paragon Cable, Notice of
Second Election (Sept. 18, 1996), JA 1A-2A. The rerun
election was conducted on October 6, 1995. Of the twenty-
eight ballots cast, fourteen were for unionization, thirteen
were against and the Union challenged one ballot, cast by
Willie Jackson. JA 8A.
Cable had hired Jackson in February 1994 as an installer
and promoted him to the position of installer technician in
August 1994, at which time he received a raise. JA 12A.
After an initial orientation period, Jackson was assigned a
vehicle and generally worked alone, performing installation
and some repair work. Id. In March 1995 Jackson applied
for and received a higher paid position performing similar
work for Primestar. At Primestar Jackson oversaw "quality
control of the work performed by contractors retained to
install satellite dishes." Id.
While the Union initially challenged Jackson's ballot on the
ground that he was a member of management, id. at 10A, it
changed its position during the hearing to challenge whether
Cable had employed Jackson in the unit as of the eligibility
date. Id. The hearing officer then issued a subpoena for
relevant documents2 and allowed testimony on the Union's
__________
Northeast), which operated cable and satellite systems for Time
Warner in New York, New Hampshire and Maine. Cable was one
of nine cable television operations Paragon Northeast operated and
Primestar was one of its two satellite service divisions. Paragon
Communications d/b/a Paragon Cable, Hearing Officer's Report
(Sept. 18, 1996), Joint Appendix (JA) 11A. Paragon Northeast has
since been disbanded. Id.
2 The subpoena directed Paragon to produce Jackson's payroll
records and timesheets for June 1, 1995 to September 30, 1995. JA
151.
new issue. Id. at 8A-9A n. 2. The Union, however, called no
additional witnesses on the issue. It had already called
Jackson to testify on the management member issue and
Cable then called Gemma Slacik, Paragon Northeast's area
manager. Based on perceived inconsistencies between their
testimony and the documentary evidence, the hearing officer
decided that Jackson was not a regular part-time employee as
of the eligibility date. Id. at 17A-19A. She concluded that
"as of September 15, the payroll eligibility date herein, Jack-
son had a conditional promise of employment, but had not yet
returned to work as a regular, part-time employee" of Cable.
Id. at 20A. Noting an earlier Board decision that had
declared ineligible an employee who was in the bargaining
unit before the eligibility date but had not performed unit
work for a " 'sufficiently substantial amount of time,' " the
hearing officer implied a similar fate for Jackson. Id. at 20
n.11 (quoting Meadow Valley Contractors, 314 N.L.R.B. 217,
217 (1994)).
Cable filed exceptions to the hearing officer's report and on
January 15, 1997 the Board issued an order denying oral
argument and affirming the hearing officer. In re Paragon
Communications d/b/a Paragon Cable, 2-RC-21521 (Jan. 15,
1997), JA 24A. On March 28, 1997, the Union filed an unfair
labor practice charge alleging that Cable violated sections
8(a)(1) and 8(a)(5) of the National Labor Relations Act (Act),
29 U.S.C. ss 151 et seq. by refusing to bargain. Cable
admitted its failure to negotiate but challenged the Union's
status as the exclusive bargaining representative. On August
5, 1997 the Board concluded that "[a]ll representation issues
raised by [Cable] were or could have been litigated in the
prior representation proceeding," Time Warner Cable, 324
N.L.R.B. No. 25, at 1 (Aug. 5, 1997), granted the General
Counsel's summary judgment motion and ordered Cable to
cease and desist from violating sections 8(a)(1) and 8(a)(5) of
the Act. Id. at 2. Cable petitioned for review, invoking this
Court's jurisdiction pursuant to section 10(f) of the Act.
II.
Our role in reviewing the NLRB's findings of fact is
limited. We will reverse the NLRB only if its findings are
not "supported by substantial evidence on the record consid-
ered as a whole." 29 U.S.C. s 160(e); see also Universal
Camera Corp. v. NLRB, 340 U.S. 474, 493 (1951). We also
give substantial deference to the inferences drawn by the
NLRB from the facts. Peoples Gas Sys., Inc. v. NLRB, 629
F.2d 35, 42 (D.C. Cir. 1980). We do not, however," 'merely
rubber stamp NLRB decisions,' " Davis Mem'l Goodwill In-
dus. v. NLRB, 108 F.3d 406, 410 (D.C. Cir. 1997) (quoting
Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991))
and, in reviewing the findings, we must "take into account
whatever in the record fairly detracts from [their] weight."
Universal Camera, 340 U.S. at 488.
In order to vote in a representation election, an employee
must be "employed and working on the eligibility date."
NLRB v. Dalton Sheet Metal Co., 472 F.2d 257, 258 (5th Cir.
1973). At the hearing both Jackson and Slacik testified
without contradiction that Jackson was employed by and
working for Cable as of the eligibility date. JA 42-43 (Jack-
son's testimony); id. at 127, 130-31 (Slacik's testimony).
Jackson testified that in August 19953 Slacik approached him
about returning to work for Cable because Cable was under-
staffed. Jackson testified that he accepted the position part-
time, effective immediately, planning to work for Primestar
on Monday and Friday and for Cable on Tuesday, Wednesday
and Thursday. Because of the short notice, however, he and
Slacik agreed that if Jackson needed additional time for
Primestar work, Slacik would allow it. JA 61. Slacik like-
wise testified that Jackson was working at Cable before the
eligibility date. She testified that when she learned that
Primestar was relocating its Newburgh operations to Bing-
hamton, New York, she met with Jackson about his returning
to Cable. JA 127. She made a record of the meeting in a
September 8 memorandum, noting that on September 6 she
met with Primestar's general manager (Eric Behre) and
__________
3 All dates referred to occurred in 1995 unless otherwise noted.
Jackson and informed Jackson in confidence that Primestar
was relocating. The memorandum also noted that "[i]t was
determined as a result of this meeting that Willie [Jackson]
fit the Installer/Tech 2 job description and salary range and
he was rehired on a part-time basis until the Primestar office
officially closed at which time he would become a full-time
employee." JA 221. Finally, the memorandum noted that on
September 7 Jackson accepted the offer.
Rejecting this evidence, the hearing officer first focused on
the Employee Change Request Turnaround Document (turn-
around form) that Cable prepared in connection with Jack-
son's return. JA 18A. She noted that the turnaround form
indicated an "Effective Date" of September 22 and that
Slacik had testified that personnel actions were only propos-
als until approved by either Joan Judge, Paragon Northeast's
Human Resources Director, or Paragon Northeast's Presi-
dent, Robert Merlese.4 Id. at 18A. But the hearing officer's
reliance on the turnaround form ignored the relationship that
existed between Primestar and Cable. First, both were part
of the Paragon Northeast and, until its relocation, Primestar
shared office and warehouse facilities with Cable. Id. at 13A.
Second, Paragon Northeast paid the employees, including
Jackson, of both Cable and Primestar. JA 133A. Third,
Jackson's 1995 transfers between Primestar and Cable were
effectuated by internal transfer procedures, he reported to
the same facility throughout his employment, id. at 13A, and
he retained the same benefits package. JA 133A-37A. In
addition, nothing in Slacik's testimony suggested that a per-
sonnel change that eventually failed to receive Judge's or
Merlese's approval was void ab initio rather than simply
reversed. For example, nothing indicated that a transferred
employee would not be paid because he had worked in his
"new" (but ultimately disapproved) position. JA 120A.
Thus, the testimony that a transfer was not "final" until
approved by Judge or Merlese does not determine whether,
and when, Jackson worked in the new position. Given these
factors, we do not believe that the September 22 "[e]ffective"
__________
4 Neither Judge nor Merlese testified.
date overrides the uncontested testimony that Jackson was in
fact employed by and working for Cable as of September 15.5
JA 41-43, 59, 130-31.
The hearing officer also disregarded Slacik's September 8
memorandum as evidence that Jackson had returned to work
for Cable before the September 15 eligibility date based on
inconsistencies she perceived in evidence regarding Jackson's
and Slacik's August and early September meetings. The
testimony on the issue was limited,6 however, and the incon-
sistencies were not necessarily inconsistencies or, if they
were, they were, at most, trivial. First, the hearing officer
noted that Slacik testified that she approached Jackson be-
cause Primestar was relocating, JA 18A, while Jackson testi-
fied that Slacik approached him because of a personnel
shortage at Cable, JA 19A. The hearing officer also noted
Jackson's testimony that management told him about
Primestar's relocating during an October 13 employee meet-
ing7 as well as Jackson's failure to testify, when he was asked:
"[D]id Ms. Slacik tell you why she was asking you to come
back to [Cable]?" JA 43, that he intended to become a full-
__________
5 We do not, however, agree with Time Warner that the Sep-
tember 22 date was an "apparent clerical error." Pet'r Br. at 18.
The document manifests that the date was changed from (perhaps)
a single-digit date in September to September 22 by the hand
notation of "JJ," presumably Joan Judge. JA 244.
6 As noted earlier, the Union originally challenged Jackson's
ballot on the ground that he was a member of management. The
theory that Jackson was not working in the bargaining unit as of
the eligibility date did not arise until the middle of Slacik's testimo-
ny, after Jackson had testified. JA 110.
7 Jackson testified:
Q [Cable]: "Mr. Jackson, has anyone told you what's going to
happen to Primestar?"
A [Jackson]: "Yes. We had a--on October 13th, the new
General Manager came down. We had a meeting. And what
we learned is that, it will no longer list--remain Primestar."
JA 72A.
time Cable employee once Primestar relocated. But the
Union never asked Slacik why she met with Jackson. In-
stead the hearing officer concluded that Primestar's reloca-
tion was Slacik's only reason for meeting with Jackson based
merely on Cable's question to Slacik on direct examination
that she explain her September 8 memorandum.8 And Jack-
son's testimony regarding Primestar's relocation also arose
from the single question, "Mr. Jackson, has anyone told you
what's going to happen to Primestar?" JA 72A. Jackson
was never asked when he first, and confidentially, heard
about the relocation.9
Finally, the hearing officer discredited Jackson's time-
sheets. She noted that for the weeks ending September 8
and 15 the timesheet showed that Jackson received eight
hours of "holiday pay," seventy-two hours of "regular pay"
and three hours of "overtime"; the timesheet, however, failed
to attribute the overtime or holiday pay to either Primestar
or Cable. JA 16A. The hearing officer emphasized the
hand-printed notation:
Cable 16 HRS
Primestar 64 HRS.
__________
8 Slacik testified:
Q [Cable]: Would you please explain that document?
A [Slacik]: [The September 8, 1995 memo is a memo] to Willie
Jackson's file from me ... which details the discussion that we
had with Willie Jackson when we found out that Primestar
Satellite Services was going to be moving ...
And it just pretty much details discussions that we had in [sic]
the offer we put on the table....
JA 127.
9 In rejecting Slacik's September 8 memorandum, the hearing
officer also noted that it listed September 7 as the date of reemploy-
ment while Slacik dated her signature on the turnaround form on
September 6. JA 19A. We fail to see any significance in the
different dates.
Id. She noted that Slacik initialed the notation and that in
her opinion Jackson did not print the notation. Id. Jackson's
timesheet for the weeks ending September 22 and 29 con-
tained similar hand-printed notations. Based on "the dispari-
ty between the time recorded as compared to that which was
allocated [the three-day, two-day allocation], the ambiguity as
to who noted the breakdown of Jackson's time,10 and the
discrepancy between the hours allocated to Cable during this
two-week period and Jackson's clear testimony" (emphasis
added), the hearing officer concluded that she could not "rely
upon these documents to establish when Jackson commenced
working at Cable." Id. at 20A.
At least two of the hearing officer's three reasons for
rejecting the timesheets' credibility, however, are not sup-
ported by the record. The "disparity" between the recorded
and the allocated times, that is, the difference between the
Primestar (Monday and Friday) and Cable (Tuesday, Wed-
nesday, Thursday) allocations, on the one hand, and the
recorded 16 hours for Cable and 64 hours for Primestar, on
the other, was expressly anticipated as Jackson's testimony
and Slacik's September 8 memorandum make clear.11 And
the "discrepancy" between the 16 hours allocated to Cable
and Jackson's "clear" testimony also disappears when Jack-
son's actual testimony is reviewed. He testified that "Slacik
__________
10 Neither Jackson nor Slacik was asked whose handwriting was
on the timesheets.
11 Jackson testified:
Q [Union]: Now, you testified that Ms. Slacik--if you have
work that you need to do for Primestar on Tuesday, Wednes-
day or on Thursday, Ms. Slacik allows you to do that?
A [Jackson]: We made an agreement that if we had a problem
that, if we had a problem that came--arose, as far as a delivery
of some equipment, that I could let her know and she would
allow me the time to go back and take care of that.
JA 71. Slacik's September 8 memo noted: "As issues of Primestar
closure came up, [Primestar management and I] would work togeth-
er to resolve them, even if that meant changing the agreed upon
schedule." JA 221A.
has been relaxed in that manner. If I have deliveries or
something comes up, that I can get--let them know what
problems might arise at Primestar, that I may go back and
take care of that." JA 61.
Finally, the hearing officer's footnote inference that Jack-
son, even if he was doing unit work as of September 15, had
not worked for a " 'sufficiently substantial amount of time,' "
JA 20 n.11 (quoting Meadow Valley Contractors, 314
N.L.R.B. at 217), is unsupported by the record. The NLRB
determines the right of a dual-function12 employee to vote in a
bargaining unit representation election by weighing whether
the employee "regularly performs duties similar to those
performed by unit employees for sufficient periods of time to
demonstrate that [he has] a substantial interest in the unit's
working conditions." Martin Enters., Inc., 325 N.L.R.B. No.
133, at 2 (April 30, 1998). The NLRB "has no bright line rule
as to the amount of time required to be spent in performing
unit work. Rather, the [NLRB] examines the facts in each
particular case." Id.
After his meeting with Slacik, which, it bears noting, oc-
curred before the eligibility date had been set, Jackson re-
turned to unit employment. See JA 1A-2A. In the two
weeks immediately preceding the eligibility cut-off date, Au-
gust 30 to September 15, Jackson worked sixteen hours for
Cable according to his timesheet. JA 238. In the two weeks
after the eligibility cut-off date, September 16 to September
29, Jackson worked twenty-four hours for Cable according to
his timesheet.13 JA 239. Cf. Stockholm Valve & Fittings,
__________
12 The dual-function analysis is used for employees "who per-
form more than one function for the same employer." Martin
Enters., Inc., 325 NLRB No. 133, at 2 (April 30, 1998). To
determine the eligibility of a dual-function employee the Board uses
the part-time employee test. Textron Lycoming Div., Avco Corp.,
308 N.L.R.B. 1045, 1045 (1992).
13 The NLRB has considered post-eligibility date work in deter-
mining the eligibility of both dual-function and part-time employees.
See, e.g., Meadow Valley, 314 N.L.R.B. at 217; Stockholm Valve &
Fittings, Inc., 222 N.L.R.B. 217 (1976).
Inc., 222 N.L.R.B. 217 (1976) (finding eligible part-time em-
ployees who were hired month before election and who
worked five days by election day). At a minimum, then,
Jackson worked forty hours in the unit before the election
and unit work accounted for at least thirty per cent of his
time in two of the three weeks between the eligibility date
and the election. The Board has identified no case in which
an employee worked as high a percentage of hours in the
bargaining unit in the weeks before the election date and yet
was denied voting rights. In the absence of such precedent,
we believe this work level demonstrates a sufficient interest
in the bargaining unit's conditions of employment to warrant
his inclusion in the unit, especially in light of the surrounding
circumstances. First, Jackson began unit work before the
eligibility date was set. Second, Jackson's hours increased
during the relevant time period as Jackson transferred part-
time into the unit. Third, Jackson worked the hours as part
of a permanent return to the unit. JA 221. These circum-
stances make clear that Jackson worked in the unit for a
sufficient time to demonstrate Jackson's substantial interest
in the unit's working conditions and, thus, his eligibility to
vote.
III. Conclusion
Notwithstanding the substantial deference we give to
NLRB orders, we do not find substantial evidence in this
record to support its conclusion that Jackson was not em-
ployed and working in the bargaining unit as of the eligibility
date. We further find the hearing officer's alternative, and
inferential, conclusion that Jackson worked insufficient hours
to demonstrate a "substantial interest in the terms and
conditions of employment" unsupported. Accordingly, we
grant Time Warner's petition, deny the Board's cross-
application for enforcement and order that the ballot of Willie
Jackson be opened and counted.
So ordered.