“[W]e think that it is unrealistic to expect every election dialogue to be completely sanitized.”
How later courts described this case
- “[W]e think that it is unrealistic to expect every election dialogue to be completely sanitized.”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1434
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
STANDARD REGISTER COMPANY,
Respondent,
and
GRAPHIC COMMUNICATIONS INTERNATIONAL UNION,
LOCAL 582-M,
Intervenor.
On Application for Enforcement of an Order of the National Labor
Relations Board. (5-CA-32798)
Argued: February 1, 2007 Decided: May 2, 2007
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Order enforced by unpublished per curiam opinion.
ARGUED: Arnold Edwin Perl, FORD & HARRISON, L.L.P., Memphis,
Tennessee, for Respondent. Jeffrey James Barham, NATIONAL LABOR
RELATIONS BOARD, Office of the General Counsel, Washington, D.C.,
for the Board. Daniel B. Smith, O’DONNELL, SCHWARTZ & ANDERSON,
P.C., Washington, D.C., for Intervenor. ON BRIEF: C. Mark
Kingseed, Mary L. Wiseman, COOLIDGE WALL CO., L.P.A., Dayton, Ohio,
for Respondent. Ronald Meisburg, General Counsel, John E. Higgins,
Jr., Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Julie Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Office of the General Counsel, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The National Labor Relations Board has applied for enforcement
of its order requiring Standard Register Company to bargain with
the Graphic Communications Conference, International Brotherhood of
Teamsters, Local 582-M, CLC (the “Union”). Standard Register
contends that it should not be required to bargain with the Union
because the certification election in which the Union narrowly
prevailed was invalid. For the following reasons, we agree with
the Board’s decision to certify the election and we grant the
Board’s application for enforcement of its order.
I.
On May 2, 2005, the Union filed a petition with the NLRB
requesting that the Board hold a representation election for the
production and maintenance employees of Standard Register’s
Salisbury, Maryland print shop. The Union won the election, held
on June 10, 2005, by a vote of 59 to 57. Standard Register
thereafter filed objections to the election, contending that the
Union “unlawfully interfered with the rights of the employees of
Standard Register to exercise their right to choose whether or not
to be represented by a labor organization.” (J.A. at 111.)1 More
specifically, Standard Register alleged that a pro-Union employee,
1
Citations in this opinion to “(J.A. at __.)” refer to the
contents of the Joint Appendix filed by the parties in this appeal.
3
Walter Scott, engaged in racial and national origin harassment of
Viet Ly, an employee of Vietnamese origin, to intimidate Ly into
supporting the Union. Standard Register also alleged that pro-
Union employee Harry Thornton made economic threats against
employee Sandy Adkins, telling her that if she did not sign a Union
authorization card she would have to pay $100 if the Union won the
election.
On July 19, 2005, an administrative law judge (ALJ) held a
hearing on Standard Register’s objections. Ly testified that, on
the day of the election, Scott became angry when Ly refused to
reveal how he planned to vote. Playing off a nettlesome comment
that Scott had previously made to Ly, Scott told Ly, who had served
in the South Vietnamese army, that he was “act[ing] like a VC,”
which stands for Viet Cong, the guerrilla forces that fought
against the United States and South Vietnamese government. (J.A.
at 73.) Another employee, who observed but did not hear Scott
speaking to Ly, testified that Ly appeared “extremely upset” after
the encounter and asked, “Why Walt talk so crazy?” (J.A. at 75.)
Scott also testified and admitted to confronting Ly on the day
of the election about a rumor that Ly was no longer supporting the
Union. According to Scott, he asked Ly “if he was wussing out.”2
(J.A. at 84.) Scott then told Ly that he was “nothing but a wuss”
2
“Wuss” means “wimp.” Merriam-Webster’s Collegiate Dictionary
1448 (11th ed. 2004).
4
and that was “why [his] country is Communist.” (J.A. at 84.)
Scott also testified that for many years he would “once in a while
. . . call [Ly] ‘VC,’ just to get him going.” (J.A. at 87.)
With regard to the allegations of economic threats, Sandy
Adkins testified that three or four weeks before the election Harry
Thornton, a pro-Union employee, told her that “if [she] didn’t go
to a [Union] meeting to get a[n authorization] card and sign it,
[she would] have to pay a $100 fine.” (J.A. at 63.) At a later
date, Thornton offered to get Adkins an authorization card.
Thornton, however, never gave Adkins an authorization card, and she
never observed him with an authorization card. In fact, Adkins
never signed an authorization card.
Patrick O’Hare, the local president of the Union, testified
that although the Union had a plant committee of employees to
assist in furthering the Union’s message, Walter Scott and Harry
Thornton were not on the committee. According to O’Hare, the Union
told employees at a meeting that the Union would waive initiation
fees and had also sent a leaflet to all employees informing them
that they would never have to pay initiation fees or fines to the
Union. Henry Rumph, a professional organizer for the Union,
testified that Scott and Thornton were not leaders of the pro-Union
employees. Rumph also testified that he did not give authorization
cards to Thornton.
5
Considering this evidence, the ALJ denied Standard Register’s
objections to the election. Regarding the comments made by
Thornton to Adkins, the ALJ concluded “that Thornton did not engage
in conduct that could be attributed to the Union, and that his
statements to Adkins did not constitute objectionable conduct.”
(J.A. at 163.) Moreover, the ALJ concluded that Thornton’s
statements to Adkins about the initiation fees were cured by the
Union’s pronouncements at meetings that the Union would waive
initiation fees and the flyer mailed to employees “guarantee[ing]”
that they would not have to pay fees. (J.A. at 163.)
The ALJ also concluded that Scott’s inflammatory remarks did
not require setting aside the election. The ALJ concluded that
Scott, although a union supporter, “had no other special ties to
the Union to give him actual or apparent authority to speak on the
Union’s behalf.” (J.A. at 165-66.) The ALJ observed that “Scott’s
remarks were isolated . . . and did not attribute any racially
related views or conduct to either the Employer or the Union.”
(J.A. at 166.) The ALJ found it “unlikely” that Scott’s remarks
impacted Ly’s vote and also found that the remarks did not
“obfuscate the true campaign issues for Ly or any other voter.”
(J.A. at 166.)
The Board affirmed the ALJ’s findings and conclusions,
although with slight modifications. Because the Board agreed with
the ALJ that “Thornton, who made the allegedly objectionable
6
statement [about the initiation fees], was not a special agent of
the Union,” the Board found “it unnecessary to rely on the [ALJ’s]
alternative finding that the Union cured any otherwise
objectionable statements by Thornton.” (J.A. at 212.) In
reference to Scott’s remarks to Ly, the Board found it unnecessary
to rely on the distinction drawn by the ALJ between improper racial
appeals made by a Union or Employer and improper appeals made by a
third-party, because “even when analyzed under the stricter party
standard . . . , employee Walter Scott’s isolated remark to
coworker Viet Ly would be insufficient to warrant a new election.”
(J.A. at 212.)
In order to obtain court review of the Union’s certification,
Standard Register refused to bargain with the Union. See NLRB v.
Ky.-Tenn. Clay Co., 295 F.3d 436, 441 n.2 (4th Cir. 2002)
(“[B]ecause an employer cannot obtain direct review of a Board’s
certification, a refusal to bargain is the proper path to judicial
review of the Board’s election decision.”). Thereafter, the Union
filed an unfair labor practice charge with the Board. The Board
granted the NLRB General Counsel’s motion for summary judgment and
ordered Standard Register to bargain with the Union. Pursuant to
29 U.S.C.A. § 160(e) (West 1998), the Board petitioned this court
for enforcement of its order.
7
II.
“The results of a NLRB-supervised representative election are
presumptively valid, and we must uphold findings and conclusions of
the Board so long as the decision is reasonable and based upon
substantial evidence in the record considered as a whole.” Ky.-
Tenn. Clay Co., 295 F.3d at 441 (internal quotation marks,
citations, and alterations omitted).
The Board strives to conduct representative elections “in
‘laboratory conditions,’ free from behavior that improperly
influences the outcome,” id., but “in reality these conditions are
often less-than-perfect . . . [because] [a]n election by its nature
is a heated affair,” NLRB v. Herbert Halperin Distrib. Corp., 826
F.2d 287, 290 (4th Cir. 1987). “Coercive conduct is never condoned
during the election process, but the Board will not set aside an
election unless an atmosphere of fear and coercion rendered free
choice impossible.” Id.
“In determining whether improper behavior has materially
influenced the outcome of an election, the source of the behavior
is an important consideration.” Ky.-Tenn. Clay Co., 295 F.3d at
441. Because “third parties are not subject to the deterrent of
having an election set aside, and third party statements do not
have the institutional force of statements made by the employer or
the union,” Herbert Halperin, 826 F.2d at 290, “[l]ess weight is
8
accorded the comments and conduct of third parties than to those of
the employer or union,” id.
There are, therefore, two standards for evaluating improper
conduct in the course of a representative election. If the
improper conduct was committed by a party to the election, i.e.,
the employer or the union, there must be specific evidence “that
improprieties occurred . . . [and] that they materially affected
the election results.” Id. If, however, the improper conduct was
committed by a third party, the election will be set aside “only if
the election was held in a general atmosphere of confusion,
violence, and threats of violence, such as might reasonably be
expected to generate anxiety and fear of reprisal, to render
impossible a rational uncoerced expression of choice as to
bargaining representation.” Id. (internal quotation marks
omitted).
We evaluate appeals to racial sentiments in representative
elections using the standard the Board established in Sewell Mfg.
Co., 138 N.L.R.B. 66, 70 (1962). In that case, the Board stated
“that ‘a deliberate, sustained appeal to racial prejudice’ could
create conditions that ‘ma[ke] impossible a reasoned choice of a
bargaining representative.’” Case Farms of N.C., Inc. v. NLRB, 128
F.3d 841, 845 (4th Cir. 1997). Thus, a new election would be
required if “[t]he [racial] remarks . . . suggest an atmosphere
inflamed by racial tension . . . or represent a deliberate attempt
9
by the union to divert the employees from legitimate issues by
insinuating an irrelevant appeal to race.” Herbert Halperin, 826
F.2d at 293.
1.
While we do not condone Scott’s behavior, his mean slur
against Ly does not warrant invalidating the election.3 “[A]ppeals
to race or ethnicity must be ‘inflammatory’ in order to violate
the Sewell standard.” Case Farms, 128 F.3d at 845. “[A]ppeals to
the racial or ethnic prejudices of the workers themselves, often in
the form of slurs or insults” against the employer or employer’s
management, have been held to be inflammatory, as have “[a]ttempts
to portray an employer as bigoted.” Id. at 846. Scott’s remarks
fall in neither category. Scott did not, for example, refer to
Standard Register as “Viet Cong” to prod Ly toward voting for the
Union. Cf. M & M Supermarkets, Inc., v. NLRB, 818 F.2d 1567, 1569,
1573 (11th Cir. 1987) (concluding that an employee’s comments that
“[u]s blacks were out in the cotton field while they, the damned
3
We reject Standard Register’s contention that the Board erred
by analyzing Scott’s remarks according to the standard of conduct
that applies to parties to the election. Simply put, the Board was
giving Standard Register the benefit of the doubt in determining
which standard applies. If a new election is not required when
Scott’s remarks are analyzed under the standard governing parties
to the election, a new election most assuredly will not be required
when the remarks are analyzed under the more lenient standard that
applies to third party conduct. We expect better behavior by
parties to the election, and we will be more inclined to require a
new election when the parties misbehave than when third parties
misbehave.
10
Jews, took their money from the poor hardworking people . . .
inflamed racial and religious tensions against the Jewish owners of
the company and destroyed the laboratory conditions necessary for
a free and open election”). Neither did Scott portray Standard
Register as bigoted against people of Vietnamese origin. Cf. KI
(USA) Corp. v. NLRB, 35 F.3d 256, 257 & n.1 (6th Cir. 1994)
(setting aside a representation election at a Japanese-owned
company in which a union flier reproduced comments of a Japanese
businessman calling American workers “lazy, uneducated . . . [and]
half-witted” and implying that the businessman’s comments reflected
the views of the company’s management).
Elections often stir up strong feelings, and union
representation elections are no different. Given the frequently
heated nature of elections, it is foreseeable that individuals
supporting one side may ignore civility and make offensive or
hateful comments against an individual supporting the opposing
side. See Herbert Halperin, 826 F.d at 292 (“[W]e think that it is
unrealistic to expect every election dialogue to be completely
sanitized.”). While the use of offensive language is not to be
condoned, we will not require a new election unless the language
amounts to “an inflammatory appeal to racial or ethnic sentiment.”
Case Farms, 128 F.3d at 845. Scott’s remark was certainly
insulting, but it did not rise to the level of being an
11
inflammatory appeal to ethnic sentiment. We therefore agree with
the Board that Scott’s remark does not warrant a new election.
2.
Standard Register also contends that the election results
should be invalidated because of Harry Thornton’s statements to
Sandy Adkins that she would have to pay $100 if she did not sign a
union authorization card. In NLRB v. Savair Mfg. Co., 414 U.S. 270
(1973), the Supreme Court held that a union could not condition a
waiver of the union initiation fee on an employee signing a union
authorization card because such conduct “allows the union to buy
endorsements and paint a false portrait of employee support during
its election campaign.” Id. at 277.
For the Union to have violated Savair and a new election to
be required, however, Thornton’s remarks must be attributable to
the Union. Standard Register contends that Thornton’s remarks are
attributable to the Union because he was a special agent of the
Union for the purpose of soliciting authorization cards, making the
Union responsible for his statements.
The Board has stated that “[w]hen a union makes authorization
cards available to employees with the understanding that they will
solicit other employees to sign them, it thereby vests the
solicitors with actual authority to obtain signed cards on its
behalf.” Davlan Eng’g, 283 NLRB 803, 804 (1987). Accordingly, the
Board deems “employees who solicit authorization cards . . .
12
special agents of the union for the limited purpose of assessing
the impact of statements about union fee waivers or other purported
union policies that they make in the course of soliciting.” Id.;
see also NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th
Cir. 1976) (concluding that under principles of agency law the
union was responsible for the misdeeds of employees that
volunteered to, among other things, solicit other employees to sign
authorization cards).
Standard Register acknowledges that “there is no evidence that
the Union specifically gave authorization cards to Mr. Thornton or
directed him to solicit authorization cards from fellow employees.”
(Appellant’s Br. at 27.) Nevertheless, Standard Register contends
that the Union should be held responsible for Thornton’s comments
because the Union gave authorization cards to certain employees
without specifically instructing those employees not to involve
other employees like Thornton.
Substantial evidence supports the Board’s conclusion that
Thornton’s comments are not attributable to the Union and that the
Union therefore did not run afoul of Savair. According to Adkins,
Thornton told her that “if [she] didn’t go to a meeting to get a[n
authorization] card and sign it, [she would] have to pay a $100
fine, or $100 to get it plus a fine, possibly.” (J.A. at 63.) But
it was not until a later date that Thornton offered to get Adkins
an authorization card. And despite Thornton’s offer, Adkins stated
13
that she never saw Thornton with an authorization card. These
facts provided sufficient evidence for the ALJ to find that
“Thornton merely announced a vague policy to Adkins at a time that
he did not ask her to sign a card” and that because his
“pronouncement was not made in the act of soliciting Adkins’
signature, . . . he never achieved special agent status.” (J.A. at
163.)
Furthermore, Thornton’s statements to Adkins do not require a
new election because Adkins never signed an authorization card.
The Court in Savair had two main concerns: (1) unions would “buy”
endorsements through fee waivers and then use those endorsements as
a “campaign tool . . . to convince other employees to vote for the
union, if only because many employees respect their coworkers’
views on the unionization issue”; and (2) an employee who endorsed
the union by signing an authorization card “would feel obliged to
carry through on their stated intention to support the union” by
voting for the union in the election. 414 U.S. 277-78. Those
concerns are not implicated here. Because Adkins never signed an
authorization card, her endorsement was not purchased, and there
was no false portrait painted that she supported the union. Nor
would she have felt obliged to vote for the Union. See Dyna-Fab,
Corp., 270 N.L.R.B. 394 (1984) (“In the case where . . . [a] waiver
of initiation fees did not result in the execution of any
authorization cards or membership applications, no endorsements
14
were purchased and no false portrait of employee support could have
been painted. Nor would any employees have felt morally impelled
to vote for the [union] based on a benefit extended by the [u]nion
in connection with signing a card or joining.”). We therefore
agree with the Board that Thornton’s comments to Adkins do not
require a new election.
III.
Because Scott’s epithet against Ly and Thornton’s comments to
Adkins on fee waivers are not misconduct requiring a new election,
we conclude that substantial evidence supports the Board’s decision
to certify the Union as the collective bargaining representative.
We therefore grant the Board’s application for enforcement of its
order.
ORDER ENFORCED
15