Fam Svc Agcy v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 1998 Decided January 15, 1999

No. 98-1204

Family Service Agency San Francisco,

Petitioner

v.

National Labor Relations Board,

Respondent

Service Employees International Union,

Local 790, AFL-CIO,

Intervenor

On Petition for Review and Cross-Application for

Enforcement of an Order of the National

Labor Relations Board

Paul B. Johnson argued the cause and filed the briefs for

petitioner.

Sharon I. Block, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

brief were Linda Sher, Associate General Counsel, John D.

Burgoyne, Acting Deputy Associate General Counsel, and

Fred L. Cornnell, Supervisory Attorney.

Before: Wald, Silberman and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: In June 1996, the Service Employees

International Union Local 790, AFL-CIO ("Union") began a

campaign to unionize a daycare site operated by Family

Service Agency San Francisco ("FSA"), a private agency

hired by state and local authorities to provide child care to

underprivileged children. The Union set about organizing

the supervising teachers, who were in charge of six class-

rooms at the site, as well as the assistant teachers, teachers'

aides, and the facility's office and support workers. In Octo-

ber 1996, the Union filed a petition with the National Labor

Relations Board ("NLRB" or "Board") seeking a representa-

tion election among these employees. FSA objected to the

proposed bargaining unit on the ground that supervising

teachers were statutory supervisors and so disqualified under

the National Labor Relations Act ("NLRA" or "the Act")

from inclusion. After a hearing, the Board's Regional Di-

rector found that they were not supervisors and ordered an

election in the petitioned-for unit. On appeal, the Board

amended this ruling to permit the supervising teachers to

vote subject to challenge. See Joint Appendix ("J.A.") at 42

(Order of Dec. 19, 1996).

The election was held on January 8, 1997. The union won

25 to 12, with one challenged ballot. At the pre-election

conference, FSA did not challenge the ballots cast by super-

vising teachers. After the election, it filed the following

objections: (1) the Union destroyed the laboratory conditions

of the election by improperly appealing to racial prejudice

during the election campaign; (2) the election was tainted by

the involvement of supervisory teachers in the election pro-

cess; (3) Union supporters engaged in improper electioneer-

ing during the voting; (4) the Union engaged in misconduct

when its agents improperly invaded the workplace; and (5)

the election was invalid because the Union failed to file

reports required by the Labor-Management Reporting and

Disclosure Act ("LMRDA"), 29 U.S.C. ss 431(a), 431(b), 432

& 435.1 The Board's hearing officer, after four days of

testimony, issued a report which recommended that all of the

objections be overruled. FSA filed exceptions with the

Board, but the Board rejected them and instead adopted the

hearing officer's findings and conclusions. The Decision and

Certificate of Representative issued on October 17, 1997.

FSA refused to bargain with the Union on the ground--the

same raised in its objections--that the election was not

conducted lawfully. J.A. at 107 (Answer to Complaint). The

Union filed a complaint with the Board, charging that FSA

violated sections 8(a)(1) and (5) of the National Labor Rela-

tions Act ("NLRA" or "the Act"), 29 U.S.C. s 158(a)(1) and

(5), and the NLRB General Counsel subsequently brought an

unfair labor practice charge against the agency. The Board

granted the NLRB's motion for summary judgment, and FSA

asks that we deny enforcement of the Board's order to

bargain collectively.2 The NLRB cross-petitions for enforce-

ment.

We hold that FSA is estopped from attempting to litigate

the question whether the election was tainted by the involve-

ment of supervisors. FSA waived its right to a ruling on

whether the supervising teachers are statutory supervisors

__________

1 FSA also objected that the Union improperly threatened em-

ployees, made promises of monetary reward and made misrepresen-

tations during the campaign. The Board's rejection of these objec-

tions was not raised here.

2 Certification by the Board is not an "order" subject to judicial

review, see American Fed'n of Labor v. NLRB, 308 U.S. 401 (1940),

so review of certification proceedings must await a final order by

the Board in an unfair labor practice proceeding (often called a

"technical refusal to bargain") under sections 10(e) and (f) of the

NLRA, as amended, 29 U.S.C. ss 160(e) and (f). The record of the

certification proceeding becomes part of the record for review in the

unfair labor practice case pursuant to section 9(d), 29 U.S.C.

s 159(d).

during the prior representation proceeding, and may not

bring that issue before this court. We also find that the

Board reasonably concluded that FSA's other objections

lacked merit.

I. Background

Teachers and administrators work in close proximity at

FSA's Bryant Street site, serving 160 children aged two

weeks to three years old. Each classroom is staffed by a

supervising teacher, an assistant teacher, and teachers' aides.

When the Union began its organizing campaign in June 1996,

racial discord already characterized relations between Afri-

can-American and Latina3 employees. The supervisor of the

center, Vivian Storey, who is African-American, testified that

at some point before the Union's arrival, a Latina co-worker

told Storey that she could not socialize with her African-

American co-workers anymore because she had been ha-

rassed by another Latina. J.A. at 510. In addition, the

employees took racially segregated lunch periods, with Latina

workers eating from 12:30 to 1:30 and African-Americans

from 1:30 to 2:30 p.m. J.A. at 552.

The Language Issue

The pivotal issue that drove a wedge between Latina and

African-American workers--the alleged presence of a policy

limiting use of Spanish in the classroom and front office--

surfaced well before the unionization campaign. In early

1996, there were a series of meetings among administrators

in which the staff addressed, among other things, complaints

about Sandra Ramirez, who worked in the center's front

office and dealt with agency clients. J.A. at 751-58 (testimo-

ny of Claudette Darley, operations manager). At one such

meeting, according to Darley, one of Ramirez' supervisors,

Ramirez was instructed to speak English whenever she was

in a group of people that included non-Spanish speakers.

__________

3 We use the term "Latina" to refer to employees whose first

language is Spanish because the Spanish-speaking employees at

issue in this case are all women.

J.A. at 767. Ramirez was told of an incident in which three

African-American parents were standing in the office while

the Latina staff conversed in Spanish, and Ramirez was

warned that this could be considered insulting by non-

Spanish-speaking parents. Id.; see also J.A. at 797 (notes

from 1/11/96 staff meeting).

The language issue arose again on June 5, 1996, when a

staff meeting was held among the teachers in Room 2.

Among the teachers who attended were Phyllis Hogan, the

African-American supervising teacher for the room; Edith

Ruiz, a Latina teachers' aide; and Johnny Overton, an Afri-

can-American substitute teachers' aide. According to testi-

mony and contemporaneous hand-written notes from the

meeting (it is not clear from the record who served as note-

taker) a parent had complained about the Latina staff's

speaking Spanish to her son. The notes from the meeting set

forth the following: "It is appropriate to speak Spanish to

children whose primary language is Spanish, as long as it is

in accordance with their parents' wishes. It is appropriate to

speak Spanish to Spanish-speaking parents in order to convey

information or explain things more clearly." J.A. at 796

(emphasis in original). "If a non-Spanish-speaking parent or

staff member is nearby when Spanish is being spoken, a staff

member will attempt to give a short explanation in English of

what is being discussed so they don't feel unwelcome or

uncomfortable; Ex: 'Hi ___. I was just explaining this

memo to ___. I'll be right with you.' " Id.

Some time later in June, according to Ruiz, Ruiz was

speaking Spanish to a parent and Hogan came into the room.

Hogan "touched me on the shoulder and she told me, 'Re-

member.' And then she told me ... that we were going to

have a short meeting," Ruiz testified. J.A. at 706. Once the

children went down for their naps, Hogan asked Ruiz wheth-

er she remembered that she should not speak Spanish, ac-

cording to Ruiz, and Ruiz asked for a written policy regarding

the language issue. J.A. at 706-07. This was followed by a

tense interaction between Storey, who subsequently inter-

vened, and Ruiz; Ruiz testified that Storey told her she was

in America and should speak English, J.A. at 706, but Storey

denied this and recalled that she told Ruiz each employee

needed to be sensitive to other cultures, J.A. at 527. "My

words was to her that there is a whole lot of rules and

regulations that I do not like," Storey testified, "and I said if

I could not follow the rules and stuff, then it was time for me

to leave." Id.

Also at the end of June, the teachers in Room 7/9 held a

staff meeting at which they discussed the use of Spanish.

Notes from this meeting reflect mounting tension over the

issue. Marva Stephens, the African-American supervising

teacher in the classroom at the time, indicated on the "Meet-

ing Outcome" form that "[t]o identify speech and language

problems, staff will use English then Spanish to enhance

receptive language skills, and to assist development by speak-

ing English." J.A. at 804. But Lourdes Perez, a Latina

teachers' aide, wrote in Spanish her own version of what

happened at the meeting on the "Meeting Outcome" form.

Perez testified that her notation reads: " 'Today, June 26, our

supervisor once again has forbidden us. She does not want

us to talk Spanish in the rooms. And that she does not care

what the Union' has said...." J.A. at 726. At the hearing,

Storey denied directing Stephens to implement an "English-

only" language policy. J.A. at 570.

The Organizing Campaign

In their testimony Storey and other higher-ranking em-

ployees all unequivocally denied that FSA ever had an "En-

glish-only" language policy, but Latina employees felt that

their supervisors were increasing pressure on them to stop

speaking Spanish. When the Union began to hold meetings

among employees in the prospective bargaining unit in the

summer of 1996, J.A. at 512, the language issue was one of

the first workplace problems that the Latina employees men-

tioned to Union organizer Ruben Garcia. J.A. at 719 (testi-

mony of Lourdes Perez); J.A. at 735 (testimony of Ruben

Garcia). Garcia testified that he referred the employees to

La Raza Central Legal, a public interest law organization

which specializes in Latino issues, in an effort to extricate the

union from the language issue because it "in my experience [ ]

shows to be a divisive issue." J.A. at 735. Garcia also

testified that the Union never distributed literature address-

ing the language issue. J.A. at 739. Not surprisingly, the

union drive was still racially divisive. Two African-American

employees, Art Marshall, the cook at FSA, and Ann Douglas,

a substitute teachers' aide, testified that they initially attend-

ed some Union meetings. As the campaign continued into

the fall, however, Garcia conducted the meetings primarily in

Spanish, with English translation. Marshall and Douglas

thought that they were being denied a full understanding of

what was said at the meetings, and Marshall, who had

approached Garcia several times about his concerns that

African-Americans had been left out of the organizing efforts,

felt that the Union did not care about the concerns of

African-American workers. Marshall said:

... I even told him [Garcia], hey man, ... some of the

blacks kind of like want to bow out of this because we

feel like our issues aren't being met and most of the

Chicano issues are.

He said, well, we'll get with that, you know.... I even

told him how to go about bringing the blacks back into

the thing, but he kind of like ignored it, overlooked it

or--that's the way I look at it.

....

I just said that I think we should, you know, we should

try to get together, you know, and keep blacks involved

in this, because I was still strongly for the Union and

then he kept saying, ... we'll deal with it, and that never

came. It never happened.

... I think the issues were for the Spanish and not me

as a black man.

J.A. at 639-41. Hogan and teachers' aide Shereece Cooks,

also African-American, were approached at different times by

Latino employees about the Union, but they neither received

any Union literature nor were they asked to sign authoriza-

tion cards. Overton testified that she was never approached

by a Union organizer or supporter.4 By mid-fall, Marshall

and Douglas stopped attending Union meetings. After the

election, when a Union organizer called Douglas and invited

her to a victory party, it was, in her view, a day late and a

dollar short; Douglas refused to attend. J.A. at 621-22.

The Press Event

Workplace tensions skyrocketed when, on September 20,

1996, a television station came to Bryant Street and inter-

viewed Latina employees about the language issue during the

12:30 lunch hour. According to a San Francisco Examiner

article that featured the same interviews, the employees

accused the management at FSA, and Storey in particular, of

preventing them from speaking Spanish on the job through

harassment and intimidation. J.A. at 773. Assistant teacher

Reyna Ferreira was quoted as saying, " 'Whenever [Vivian

Storey, the site supervisor] or the other superiors hear us

speak Spanish, they come up and say "English, English,

English." ' " Id. Perez was also quoted: " 'Our supervisors

look at us like we're bad, like we're criminals because we

speak Spanish.' ... 'Vivian says to us, "You are in America.

You have to learn English." ' " Id. No African-American

employees or managers from the Bryant Street site were

interviewed, although Shereece Cooks testified that she saw

the Latina employees ask Art Marshall if he would go on

camera. J.A. at 577-78.

The identity of the organizer of this press event was

disputed during the hearing, and FSA argues here that the

Union sponsored it. Garcia denied this and testified that he

thought a lawyer from La Raza had contacted the media.

Garcia was present at the event but he did not speak on

camera; witnesses saw him chatting with employees after

they had been interviewed. Sandra Ramirez was under the

__________

4 Various witnesses acknowledged, however, that Garcia visited

the Latina lunch hour, and not the later one attended by African-

Americans, because Storey and other supervisors usually ate during

the later period.

impression that the other Latina employees at FSA had

contacted the press.

After this publicity, African-American employees were livid

and the racial divide widened. "[F]rom then on, they [Afri-

can-American co-workers] changed their attitude towards us

a lot and they didn't treat us the same, and ... they looked at

us badly," Lourdes Perez testified. J.A. at 491. Ann Doug-

las said that the Latina employees "stopped speaking, some of

them. When I would walk [into her classroom] in the morn-

ing and say good morning, some of them would speak, some

wouldn't, and I would go on one side of the room, on the other

side with my kids...." J.A. at 618. Marshall said that he

feared physical violence would erupt. J.A. at 649. In Octo-

ber, Cooks, Overton and Douglas all complained to Storey

that they felt they were being taunted by the Latina employ-

ees who continuously spoke only Spanish in their presence, an

occurrence that became more frequent after the press inter-

views.

The Radio Interview

In November 1996, Garcia arranged an interview with

himself, Ramirez and Perez at a Spanish-language radio

station in San Francisco. The three talked, in Spanish, about

the language policy problem at FSA. Perez said in the

interview that "Even with the parents themselves who don't

understand the language, English, we're told that we have to

talk to them in English even though they [ ] talk to us in

Spanish...." J.A. at 779. Garcia explained that his Union

was trying hard to organize the public sector because "there

are many conditions similar to what Sandra and Lourdes are

expressing here." J.A. at 792. He continued, "[W]e also

found that there were other workers, non-Latinos who were

also suffering from mistreatment and from, from low wages

and exploitation that they were enduring. That is we came to

find out that there were many more problems than about

Spanish but the Spanish problem was one that stood out

because of the magnitude of it." J.A. at 793. Ramirez and

Perez played a tape of the interview during the lunch hour of

the Latina employees, although there is no evidence that any

African-American workers heard the broadcast. Jones testi-

fied that she heard someone utter the words, in English,

"black monkey," but she did not know whether the words

came from the tape or from Perez, who was in the room. The

transcript from the interview does not contain those words in

English or Spanish. J.A. at 774-95. Soon after, at Thanks-

giving, the traditional school-wide potluck degenerated into

two separate luncheons, one for African-Americans and one

for Latinas.

The Workplace Visits

During the organizing period, Garcia and another Union

organizer, Doris Mitchell,5 occasionally came to the Bryant

Street premises to talk to employees, usually during the 12:30

lunch hour. Storey testified that she saw Mitchell "six or

seven times" on the premises, but Storey's only confrontation

with Mitchell occurred in August 1996, when she came across

Mitchell conversing with employees in the lunchroom. Storey

opened the door and closed it, and thought she heard Mitchell

shouting and laughing at her. This happened again, and

Storey left. Mitchell left shortly thereafter. J.A. at 540-41.

Later, in early December, Storey had an encounter with

Garcia, who was in the lunchroom during the 12:30 period.

Storey asked Garcia to leave, and he refused. J.A. at 544.

Storey left to go to her office to call the police, and Garcia

"came up to the office and he said to me he had every right

to, in a loud manner, to be there." Id. Garcia announced

that he would stay until 1:30 and then depart--which he did.

The police were never summoned and there were apparently

no witnesses to the encounter in the office. J.A. at 545.

The Vote

On January 8, 1997, the day of the election, there was a

pre-election meeting with the NLRB agent to discuss the

rules for voting. Witnesses agreed that the Board agent did

__________

5 Mitchell is African-American and ran the first few Union meet-

ings in the summer of 1996, until Garcia took over.

not establish a "no-electioneering" zone and did not issue

rules governing the conduct of employees during the voting

period. An FSA employee, Jaynie Lara, was appointed to

read the voting "script" to the workers in each classroom and

to escort employees from their classrooms or the office to the

lunchroom, where votes were cast. At one point during the

hour and a half voting period, according to Lara, she told an

on-call cook, Arturo Martinez, to sit in a chair outside the

lunchroom, which was off the main hallway, and wait his turn

to vote. For approximately 20 minutes, Martinez spoke to

the voters who, one-by-one, entered and exited the lunch-

room. Lara estimated the number of voters whom Martinez

addressed as 10. Martinez told the employees in Spanish to

"stick together" and "vote for the union," according to Lara,

and also asked them how they had voted. J.A. at 434. Lara

also recalled that three employees stood clustered in the door

of Room 7/9 for about half an hour during the voting and

made similar comments to voters; two employees behaved

similarly in the doorway of Room 5 for about 20 minutes. It

appears from the record that one of these rooms is across the

hall from the lunchroom, and the other diagonal from it.

Also, after Lara had read her script to the voters in Room 7/9

and Room 5, the supervising teacher in each room--Ana

Hernandez and Esperanza Reveles, respectively--told the

voters to make sure they voted for the union.

II. Discussion

We will affirm the Board's decision to order collective

bargaining in the face of objections to the Union's representa-

tion if the decision is reasonable and if the Board's underlying

findings of fact are supported by substantial evidence on the

record as a whole. See E.N. Bisso & Son v. NLRB, 84 F.3d

1443, 1445 (D.C. Cir. 1996). The Board must determine

whether the challenged conduct tended to interfere with

employees' free exercise of the franchise. See Amalgamated

Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559,

1562 (D.C. Cir. 1984). This is a fact-intensive determination

especially suited for Board review. See id. ("important in

counseling deference to Board decisions ... is the fact that

the Board's particular expertise qualifies it--rather than the

courts--to decide whether to call for a rerun election"). A

hearing officer "is '[ ] far better situated than are we to draw

conclusions about a matter as ephemeral as the emotional

climate of the [workplace] at the time of the election.' " E.N.

Bisso & Son, 84 F.3d at 1444 (citation omitted). As a general

matter, the burden is on the party seeking to overturn a

Board-conducted representation election to establish that the

election was not fairly conducted. See Amalgamated Cloth-

ing Workers of America v. NLRB, 424 F.2d 818, 827 (D.C.

Cir. 1970) (citing Southwestern Portland Cement Co. v.

NLRB, 407 F.2d 131, 134 (5th Cir. 1969)). A court will

overturn the Board's decision to certify a bargaining unit only

where the activities of union supporters created " 'an atmo-

sphere of fear and coercion which made a free and fair

election impossible.' " Amalgamated Clothing & Textile

Workers Union, 736 F.2d at 1562 (quoting Daylight Grocery

Co. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982)).

A.Racial Appeals During Election Campaign

FSA objected after the election that "[t]he union and its

supporters and agents conducted a campaign and engaged in

tactics and conduct designed to pit Latino workers against

African-American and other non-Latino workers, thereby

basing their campaign on racial and ethnic prejudice and

discrimination," and also that "[b]y ... appeals to racial and

ethnic prejudice, the union unlawfully coerced, intimidated

and interfered with the rights of eligible voters, and de-

stroyed the laboratory conditions necessary for a valid elec-

tion." J.A. at 44 (letter to NLRB, January 15, 1997). The

hearing officer rejected this objection, we think reasonably.

We begin with the law that governs the use of race-based

messages in union campaigns. The principle that the party

challenging the election bears the burden of proving its

invalidity gives way if the party that prevailed in the election

used racial propaganda in an irrelevant and inflammatory

manner. If the prevailing party inflamed racial prejudice to

garner pro- or anti-union support, then it must prove that its

race-laden statements were truthful and germane to the

unionization effort. The Board has articulated the perimeters

of racially charged but permissible campaign statements and

messages:

... [A] relevant campaign statement is [not] to be

condemned because it may have racial overtones....

We would be less than realistic if we did not recognize

that such statements, even when moderate and truthful,

do in fact cater to racial prejudice. Yet we believe that

they must be tolerated because they are true and be-

cause they pertain to a subject concerning which employ-

ees are entitled to have knowledge....

So long, therefore, as a party limits itself to truthfully

setting forth another party's position on matters of racial

interest and does not deliberately seek to overstress and

exacerbate racial feelings by irrelevant, inflammatory

appeals, we shall not set aside an election on this ground.

However, the burden will be on the party making use of

a racial message to establish that it was truthful and

germane, and where there is doubt as to whether the

total conduct of such party is within the described

bounds, the doubt will be resolved against him.

Sewell Manuf. Co., 138 N.L.R.B. 66, 71-72 (1962) (footnote

omitted) (emphasis in original).

Applying Sewell, we look first to whether the Union delib-

erately drove a wedge between African-American and Latina

co-workers by racial baiting--namely, by assailing the cen-

ter's alleged language policy in a way that was inflammatory

and irrelevant to the campaign and by failing to ensure the

inclusion of African-Americans during the membership drive.6

__________

6 The parties do not dispute that the Union's alleged targeting of

members based on race should be considered under the Sewell

analysis. We note and adopt the Fifth Circuit's view on this issue:

That the Union's appeal in this case was predominately to [one

race] does not in itself tell us either that race was the theme of

the campaign, or that the Union's appeal was inflammatory.

Rather, we think the racial one-sidedness of the Union's effort

should be given the analytical effect in our review of intensify-

Our sister circuits have approached this task by examining

the tenor and relevance of the union's race-based message as

well as the degree to which the message formed the "core" of

the unionization drive. See, e.g., M & M Supermarkets, Inc.

v. NLRB, 818 F.2d 1567 (11th Cir. 1987); NLRB v. Utell

Int'l, Inc., 750 F.2d 177 (2d Cir. 1984); NLRB v. Silverman's

Men's Wear, Inc., 656 F.2d 53 (3d Cir. 1981); Peerless of

America, Inc. v. NLRB, 576 F.2d 119 (7th Cir. 1978); NLRB

v. Bancroft Manuf. Co., 516 F.2d 436 (5th Cir. 1975). The

more outrageous and inflammatory the statement, the less

important the question whether it formed the "core" of the

campaign, and the more difficult it becomes for its sponsor to

prove its relevance and truth. For example, in Silverman's

Men's Wear, the Third Circuit held that the NLRB erred in

not holding a hearing based on evidence proffered by the

employer that a union official called a company official a

"stingy Jew" in front of 20 employees shortly before the

election. 656 F.2d at 57-58. Although the statement stood

alone and did not comprise a core campaign issue, the court

found it to be so inflammatory that the "Union clearly could

not have met" its burden of proving it was actually relevant.

Id. at 58; see also M & M Supermarkets, 818 F.2d at 1573-74

(one employee's reference to employers as "those damned

Jews" at a single meeting enough to invalidate election); cf.

Utell Int'l, 750 F.2d at 179 ("the Sewell test for truth and

relevancy ... is applicable only to inflammatory racial ap-

peals").7

__________

ing the scrutiny with which we regard the incidents of the

Union's "appeal to race hatred" cited by the Company.

NLRB v. Sumter Plywood Corp., 535 F.2d 917, 926 (5th Cir.

1976) (footnote omitted).

7 The Fifth Circuit appears to have adopted the approach that if a

racial message forms either the core of the campaign or is inflam-

matory, the burden shifts to the sponsor to prove that the state-

ment was truthful and relevant to the campaign. See Sumter

Plywood, supra note 6, at 925 ("the reversal of burden of persua-

sion occurs if the racial remarks 'form the core or theme of the

campaign,' or if the statements are racially inflammatory") (citation

omitted); Bancroft Manuf., 516 F.2d at 442-43. Instead, we adopt

It is permissible for a union to promulgate a message that

is wholly relevant and accurate, even though it implicates

race. A "union's claim that management discriminated on the

basis of race, sex and national origin [is] not an inflammatory

racial appeal." State Bank of India, 808 F.2d at 542; cf.

Utell Int'l, 750 F.2d at 178-79. The hearing officer in this

case reasonably concluded that the Union's and employees'

statements and actions regarding the language issue amount-

ed to no more than a claim of discrimination. Lourdes Perez'

notation on the June 26 meeting form that Latina employees

had been forbidden from speaking Spanish, the subsequent

skirmishes over language issues between Latina employees

and their supervisors, Latina employees' complaints to the

news media that their supervisors harangued them to speak

English, and the similar comments made during the radio

interview do not appear to be empty claims aimed at provok-

ing racial hatred. We reach this conclusion without deciding

whether these acts were attributable to the Union. See

NLRB v. Herbert Halperin Distributing Corp, 826 F.2d 287,

291 (4th Cir. 1987) (question is whether the "amount of

association between the union and the [employees] is signifi-

cant enough to justify charging the union with the conduct")

(quotation omitted). By so doing, we subject the Union to a

standard more stringent than that other courts have required

when examining the actions of third parties: Where the

Union sponsored the race-based message, the election must

be set aside if the message was inflammatory and inspired an

atmosphere of fear and coercion. Cf. id. at 290 (election set

aside because of third-party conduct only if election was held

in "a general atmosphere of confusion, violence, and threats of

violence...") (citation omitted). Even assuming arguendo

that the Union was responsible for the turmoil over the

alleged existence of a language policy, we are unable to

__________

the Second and Seventh Circuits' sliding scale approach, in which

we assess together the degree of the message's relevance and

importance. See Utell Int'l, 750 F.2d at 179; State Bank of India v.

NLRB, 808 F.2d 526, 541 (7th Cir. 1986). Otherwise, the promul-

gation of a "core" yet tempered and relevant race-based message

would unnecessarily require further and redundant examination.

identify any statements or actions it made that were so

inflammatory and irrelevant that the Board's contrary conclu-

sion must be overturned. The comments reported in the San

Francisco Examiner article and the statements made in the

radio interview appear to us, as to the Board, to be reason-

ably accurate descriptions of the situation as Garcia and the

Latina employees perceived it to be and not calculated to

spark racial prejudice.8 Written records--namely, from the

June 5 staff meeting in Room 2--and the testimony of Vivian

Storey as to her encounters with Latina employees may tend

to support FSA's contention that there was no official "En-

glish-only" policy. However, the hearing officer found that

employees' testimony to the contrary was credible, and it is

not necessary to determine whether there actually existed an

established English-only policy; the relevant point is that the

Board could reasonably find, in this conflicted record, that the

Latina employees' allegations that one existed were not reck-

less, capricious, or otherwise emblematic of an intent to

invoke racial hatred. The subsequent conflict over the use of

Spanish in the presence of non-Spanish speaking employees,

the complaints by African-American workers about feeling

excluded among Spanish speakers, and the racial bifurcation

of the Thanksgiving dinner illustrate the racial tension at

__________

8 FSA asserts that Garcia made inflammatory misrepresentations

to the Latina employees by telling them that they had an "absolute

right" to speak Spanish on the job. Petitioner's (Pet.) Br. at 23.

Garcia himself said he told the employees that he thought the

policy, if it existed, was "illegal or [wrong]," and Perez testified that

Garcia told her that she had a "right" to speak Spanish. J.A. at

737-38; 719-20. FSA argues that this statement was wrong in

light of Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993) (holding

that, in the circumstances presented in that case, an English-only

policy in the workplace could not constitute a violation of Title VII),

but this legal conclusion, alone, is not sufficient to render Garcia's

statements prejudicial enough to invalidate the election. See Utell,

750 F.2d at 179-80 (in case of alleged misrepresentation, Board is to

consider, inter alia, other party's opportunity to correct the misrep-

resentations before invalidating election).

FSA but do not necessarily lead to the conclusion that the

Union was igniting prejudice. The hearing officer did not

credit Jones' testimony that the words "black monkey" were

actually uttered, J.A. at 67, and there is no reason in the

record for us to disturb this finding. See E.N. Bisso & Son,

84 F.3d at 1444-45 (hearing officer is "uniquely well-placed to

draw conclusions about credibility") (citation and quotation

omitted).

We stress that we do not endorse what appears from most

accounts to have been a palpable disinterest by the Union in

non-Latino workers and the resulting de facto segregation of

employees during the organizing drive. See Sumter Ply-

wood, 535 F.2d at 926 ("This concentration on voters of one

race, to the relative exclusion of voters of the other, is

disturbing and is not to be condoned"). Yet even considering

this lamentable behavior towards African-American workers,

we nonetheless agree with the Board that there was nothing

in this tendentious campaign that made "impossible a sober,

informed exercise of the franchise." Sewell Manuf., 138

N.L.R.B. at 71.

B.Supervisory Taint in the Election Process

FSA objected that the "petition and election process were

unlawfully tainted by the inclusion of statutory supervisors,"

J.A. at 44. The threshold question in a supervisory taint

claim is, of course, whether the accused parties were in fact

"supervisors" under the NLRA. See Westwood One Broad-

casting Servs., Inc., 323 N.L.R.B. 1002 (1997), enforced 159

F.3d 1352 (3d Cir. 1998). This issue could have been litigated

at FSA's behest during the representation stage of these

proceedings. In fact, FSA initially challenged the presence of

supervising teachers in the bargaining unit. See 29 U.S.C.

s 152(3) (excluding from its definition of covered "employee

... any individual employed as a supervisor"). After a

hearing on the matter, the Regional Director found that the

supervising teachers were not statutory supervisors under

the NLRA, but on appeal the Board amended the Regional

Director's decision to permit the teachers to vote subject to

challenge. See J.A. at 101 n.3 (Decision and Certification of

Representative, October 17, 1997). At the pre-election con-

ference, the Employer's representative explicitly withdrew

the challenge to the eligibility of the supervising teachers.

See id.

In issuing its Certificate of Representative, the Board

denied FSA's post-election objection based on supervisory

taint because it was "in the nature of postelection challenges

which the Board has held that it will not entertain." J.A. at

101. The Board has long refused to hear challenges to votes

brought for the first time after an election, as well as objec-

tions that are merely reformulated challenges to votes. See,

e.g., NLRB v. A.J. Tower Co., 329 U.S. 324, 332 (1946); Prior

Aviation Serv., Inc., 220 N.L.R.B. 460, 461 n.3 (1975) (listing

cases). The difference between objections and challenges is

that "[o]bjections relate to the working of the election mecha-

nism and to the process of counting the ballots accurately and

fairly. Challenges, on the other hand, concern the eligibility

of prospective voters." A.J. Tower Co., 329 U.S. at 334. The

ban on post-election challenges is traditionally employed

when one party files a post-election "objection" that directly

challenges the eligibility of a voter that was not raised

previously. See Prior Aviation Serv., Inc., supra, at 460 (ban

on post-election challenges applied to objection that alleged

employee "was an ineligible voter by reason of his superviso-

ry status"). Otherwise, as the Supreme Court has observed,

losing parties would be able to lodge attacks on elections ad

infinitum, "delay[ing] the finality and statutory effect of the

election results." A.J. Tower Co., 329 U.S. at 332.

The Board in this case not unreasonably relied on the ban

on post-election challenges to bar FSA's attempt to revisit the

issue of the teachers' supervisory status after the election,

since FSA had explicitly abandoned that same challenge

before the election. But it is not clear that the ban will take

it the whole way, because, as noted above, it has traditionally

been limited to challenges to votes or the constituency of the

bargaining unit. However, the Board does allude briefly to a

collateral estoppel argument which we find more compelling,

that is, that a party such as FSA here cannot specifically

withdraw its challenge to certain voters as supervisors and

later allege that they are indeed supervisors whose partic-

ipation in the disputed election has "tainted" it. See J.A. at

101 n.3.

Thus, since FSA withdrew its challenge to the supervisory

status of the teachers pre-election, it was subsequently es-

topped from litigating the issue post-election, and as the

Board found in its Decision and Order in the instant section

8(a)(5) refusal-to-bargain proceeding, see J.A. at 135, cannot

now reopen the record of the representation proceeding to

attempt again to litigate this issue. Board rules bar reopen-

ing the record to litigate issues in related unfair labor prac-

tice proceedings that the Board could have reviewed in the

representation proceeding. See 29 C.F.R. s 102.67(f).9 And

FSA "fail[ed] to request review" of whether a supervising

teacher is a statutory supervisor prior to the election, thereby

precluding it from "relitigating, in any related subsequent

unfair labor practice proceeding, any issue which was, or

could have been, raised in the representation proceeding."

Id. We have, it is true, previously held that a union is not

barred under this rule from relitigating representation issues

when it brings unfair labor practice charges under sections

8(a)(1) and 8(a)(3)10 of the NLRA because such charges do not

__________

9 Section 102.67(f) states: "The parties may, at any time, waive

their right to request review. Failure to request review shall

preclude such parties from relitigating, in any related subsequent

unfair labor practice proceeding, any issue which was, or could have

been, raised in the representation proceeding. Denial of a request

for review shall constitute an affirmance of the regional director's

action which shall also preclude relitigating any such issues in any

related subsequent unfair labor practice proceeding."

10 These sections provide, in relevant part:

(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title;

...

constitute a "related subsequent unfair labor practice pro-

ceeding" (emphasis added). See Thomas-Davis Med. Ctrs. v.

NLRB, 157 F.3d 909, 913 (D.C. Cir. 1998); Clark & Wilkins

Indus., Inc. v. NLRB, 887 F.2d 308, 316 (D.C. Cir. 1989).

Similarly, an employer in a subsequent section 8(a)(1) or

8(a)(3) proceeding is not barred from raising a defense that

was or could have been litigated in the representation pro-

ceeding. See Intermountain Rural Elec. Ass'n v. NLRB, 732

F.2d 754, 760-61 (10th Cir. 1984)) (permitting confidential

employee defense). By contrast, a section 8(a)(5) case based

on an employer's technical refusal to bargain in order to

obtain review of the representation proceeding is necessarily

a "related subsequent unfair labor practice proceeding." See

Amalgamated Clothing Workers of America, AFL-CIO v.

NLRB, 365 F.2d 898, 903 (D.C. Cir. 1966) (a company's

appeal to the court in a refusal to bargain proceeding must be

"based on the record made at the earlier representation

hearing"); see also NLRB v. Hydro Conduit Corp., 813 F.2d

1002, 1005 (9th Cir. 1987); Intermountain Rural Elec., 732

F.2d at 760-61; Rock Hill Tel. Co. v. NLRB, 605 F.2d 139,

143 (4th Cir. 1979); Heights Funeral Home, Inc. v. NLRB,

385 F.2d 879, 881-82 (5th Cir. 1967). Accord Hyatt Hotels,

Inc., 256 N.L.R.B. 1099 (1981) (in refusal to bargain proceed-

ing, no relitigation of supervisory status of pro-union employ-

ee who was alleged by employer to have interfered with the

election). Since the record shows that FSA waived its right

to request review of the supervisory status of the supervising

teachers during the representation proceeding, relitigation of

the supervisory taint issue is precluded.

C.Unlawful Electioneering

Another of FSA's objections was that "Union supporters

and agents engaged in unlawful electioneering, coercion, in-

timidation and interference in the vicinity of the polling place

during the election." J.A. at 45. We believe that the Board

__________

(3) by discrimination in regard to hire or tenure of employment

or any term or condition of employment to encourage or

discourage membership in any labor organization....

29 U.S.C. s 158(a).

reasonably concluded that the electioneering at Bryant Street

on the day of the election was within the permissible range.

The Board has repeatedly declined to impose a zero-

tolerance rule on voting day electioneering. See Overnite

Transp. Co. v. NLRB, 140 F.3d 259, 269 (D.C. Cir. 1998)

(citing Boston Insulated Wire & Cable Co., 259 N.L.R.B.

1118, 1118 (1982), enforced, 703 F.2d 876 (5th Cir. 1983)); see

also NLRB v. Duriron Co., 978 F.2d 254, 256 (6th Cir. 1992)

(" 'Laboratory conditions' are not always achieved in practice,

and elections are not automatically voided whenever they fall

short of perfection."). "Instead, the Board considers a range

of factors and circumstances in determining whether election-

eering activity is sufficient to justify overturning an election."

Overnite Transp., 140 F.3d at 269. The Board has considera-

ble discretion to determine whether the circumstances of an

election have enabled employees to exercise free choice in

casting their ballots. Id. When "prolonged conversations

between representatives of any party to the election and

voters waiting to cast ballots" take place, Milchem, Inc., 170

N.L.R.B. 362, 362 (1968), the Board will order a new election.

Cf. NLRB v. Del Rey Tortilleria, Inc., 823 F.2d 1135 (7th Cir.

1987) (Milchem does not require new election when union

representative spoke with employees lined up on sidewalk

before polls open).

But where, as here, the electioneering did not involve union

agents, the Board will overturn the election "only if the

electioneering 'substantially impaired the exercise of free

choice.' " Overnite Transp., 140 F.3d at 270 (citing Del Rey

Tortilleria, 823 F.3d at 1140 (citation omitted)).

The Board generally considers the nature and extent of

the electioneering, whether it happened within a desig-

nated "no electioneering" area, whether it was contrary

to the instructions of the Board's election agent, whether

a party to the election objected to it, and whether a party

to the election engaged in it.

Id. at 270. In this case, the Board agent did not designate a

"no-electioneering zone" outside of the lunchroom. FSA

urges us to consider Pepsi-Cola Bottling Co. of Petersburg,

Inc., 291 N.L.R.B. 578 (1988), in which the Board found that

unlawful electioneering had occurred within a prima facie

"no-electioneering" zone even though none had been estab-

lished before the election. In Pepsi-Cola Bottling, however,

the Board determined that this "no electioneering" zone

existed where employees waited in line to vote. By contrast,

as the Board correctly found in the instant case, employees

did not wait outside the lunchroom to vote. There was thus

no area where employees stood as a captive audience, waiting

to cast their ballots, that should have been considered off-

limits as a matter of law. Applying the other factors, the

employees did not act contrary to any of the instructions of a

Board agent, see Star Expansion Indus. Corp., 170 N.L.R.B.

364 (1968) (agent of union asked to leave no-electioneering

zone three times). Nor does FSA contend that it objected to

the activities of the Union's supporters at the time employees

entered or exited the voting place.

Finally, the general "nature and extent" of the electioneer-

ing in this case did not substantially impair employees' ability

to exercise free will at the ballot box. The Board reasonably

found that the combined effect of the relatively brief inter-

ludes of electioneering by teachers as voters exited and

entered classrooms 5 and 7/9, as well as Martinez' occasional

comments as he sat outside the lunchroom waiting to vote,

was not coercive. Compare Claussen Baking Co., 134

N.L.R.B. 111 (1961) (prolonged antiunion discussion between

a leadman and several new employees within 15 feet of the

poll in no-electioneering zone, with a plant manager standing

nearby, and which was stopped only by intervention of the

Board agent, required that election be set aside), with Duri-

ron, 978 F.2d at 258 (no new election where pro-union em-

ployees gathered in hallways for an hour during voting period

within 15 to 20 feet of polling place and discussed pro-union

position with employees in their work areas); Boston Insulat-

ed Wire & Cable Sys. v. NLRB, 703 F.2d at 880-81 (no new

election where union agents leafletted outside doors as em-

ployees entered building and proceeded down corridor to

vote); and Southeastern Mills, Inc., 227 N.L.R.B. 57 (1976)

(no new election where pro-union employee sat for 20 minutes

near employees waiting in line to vote, loudly predicted their

votes and stated that he hoped they had voted right). That

the classrooms were located just across the hall from the

voting area is acknowledgedly troubling, because it allowed at

least some voters to be subjected to pro-union campaigning

up to the last moments before they cast their ballots. Simi-

larly, the Union supporters' inquiries to voters leaving the

polling place as to how they cast their ballots is not paradig-

matic of sterile "laboratory conditions." However, ultimately,

we defer to the Board's reasoned conclusion that neither of

these occurrences tend to intimidate voters in light of the fact

that employees were not standing in line to vote as a captive

audience to the union supporters' comments, there was no "no

electioneering" zone, and further, that no evidence was ad-

duced that voters were forced to contend with a constant

barrage, as opposed to an intermittent sprinkling, of pro-

union advocacy.

D.Union Agents' Invasion of the Workplace

FSA also alleged that "Union agents repeatedly invaded

the employer's workplace during working times to engage in

electioneering with employees, deliberately creating hostile

confrontations with management and refusing to leave when

lawfully asked to do [sic]." J.A. at 45. This objection must

also fail. When a party to an election is alleged to have

engaged in conduct requiring the overturning of the election

results, the Board, and we, employ a standard similar to the

one used with allegations of improper electioneering. "[T]he

Board judges the conduct by assessing whether it 'reasonably

tend[ed] to interfere with the employees' free and uncoerced

choice in the election.' " NLRB v. Earle Industries, Inc., 999

F.2d 1268, 1272 (8th Cir. 1993) (quoting Baja's Place, Inc.,

268 N.L.R.B. 868, 868 (1984)). The factors the Board consid-

ers include: the number of incidents of misconduct; the

severity of the incidents and whether they were likely to

cause fear among the employees in the bargaining unit; and

the proximity of the misconduct to the election date. See id.;

see also Avis Rent-A-Car Sys., Inc., 280 N.L.R.B. 580 (1986).

Here, as the Board correctly found, Mitchell and Garcia

made several visits to the Bryant Street site but only two

alleged "incidents" of misconduct occurred. Site Supervisor

Storey's brief run-in with Mitchell could hardly be described

as likely to induce fear among employees; it was not confron-

tational and there is no evidence that Mitchell was even asked

to leave. Although there were witnesses to Storey's initial

encounter with Garcia, that encounter consisted only of Gar-

cia's telling Mitchell that he had a right to be on the premis-

es. The evidence does not reflect that there were any

witnesses to the subsequent, slightly more rancorous encoun-

ter in the office. Even so, whatever employee angst may

have resulted from these two encounters surely dissipated by

election day--one incident occurred five months and the other

one month before the election. Cf. Wilkinson Mfg. Co. v.

NLRB, 456 F.2d 298, 303-04 (8th Cir. 1972) (two month

interval before election not enough if the incident had been a

constant topic of discussion and concern); Station Operators,

307 N.L.R.B. 263 (1992) (fact that incident occurred two

weeks before election supported finding that pre-election

misconduct did not taint election). This case is thus distin-

guishable from Phillips Chrysler Plymouth, Inc., 304

N.L.R.B. 16 (1991), where union agents engaged in a shouting

match with the company's president in front of all 10 mem-

bers of the bargaining unit an hour before the polls opened

and refused to leave even after the company called the police.

These two run-ins did not rise to the level of interfering with

employees' free and uncoerced choice in the election.

E.Compliance with the LMRDA Reporting Requirement

Finally, FSA objected that the Union is not a bona fide

labor organization under the NLRA for purposes of repre-

senting employees because it "unlawfully failed and refused to

file any of the financial and other reports required of all

private sector unions." J.A. at 44. FSA asserted that "the

union's refusal to file was a violation of employees' Section 7

rights to know about union finances and other matters in

order to make an informed election choice...." Id. The

LMRDA requires labor unions to file certain financial disclo-

sure reports. See 29 U.S.C. ss 431(a), 431(b), 432 & 435; see

generally Brennan v. Local Union 10, 527 F.2d 588 (9th Cir.

1975). Section 2(5) of the NLRA, which makes no reference

to these reporting requirements, merely defines a "labor

organization" as including "any organization of any kind ...

in which employees participate and which exists for the

purpose, in whole or in part, of dealing with employers

concerning grievances, labor disputes, wages, rates of pay,

hours of employment, or conditions of work." 29 U.S.C.

s 152(5). In the course of pre-election proceedings in the

instant case, the Regional Director concluded that compliance

with the LMRDA was not relevant to the union's status as a

labor organization under the NLRA. See J.A. at 21-22. The

hearing officer, and the Board in turn, adopted this conclu-

sion. Desert Palace, Inc., 194 N.L.R.B. 818, 818 n.5 (1972)

("The NLRB is not entrusted with the administration of the

[LMRDA]. An organization's possible failure to comply with

that statute should be litigated in the appropriate forum

under that act, and not by the indirect and potential duplica-

tive means of our consideration...."); see also S.H. Kress &

Co., 212 N.L.R.B. 132 (1974). In a case in which a company

argued that a labor union should not be entitled to an order

directing an election because of, inter alia, numerous internal

problems and possible mob influence, the Board concluded:

The allegations made by [the company] ... concern

improper or corrupt practices in the administration of

internal union affairs. In ... the [LMRDA], Congress

expressly dealt with such matters. It is particularly signifi-

cant that the remedies provided in the LMRDA were given

to individual employees directly, and to the public through

the intervention of [other departments]. The theory un-

derlying this type of remedial legislation is not to "illegal-

ize" the organization itself, but to afford protection to all

parties concerned by creating specific Federal rights and

remedies whereby the activities of the organization and its

officers and agents are regulated and subjected to judicial

review in vindication of those rights. Had Congress de-

sired to strike directly at the organization itself, Congress

would have said so.

Alto Plastics Manuf. Corp., 136 N.L.R.B. 850, 853 (1962). In

oral argument, FSA attempted to distinguish Alto Plastics

from this case because the company in Alto Plastics had

sought directly to invoke the Board's jurisdiction to hear a

complaint brought under the LMRDA, whereas here, FSA is

not asking the Board to adjudicate the LMRDA issue. How-

ever, this analysis ignores the basic point of Alto Glass, which

is applicable here: the LMRDA is simply "not relevant or

material to the issue of [the Union's] status as a labor

organization," at least in the circumstances of this case. Id.

at 851.11

Conclusion

For the reasons stated above, we deny FSA's petition for

review and grant the Board's petition for enforcement of its

Decision and Order.

So ordered.

__________

11 In oral argument and in the Reply brief, counsel for FSA

contended that the company's argument is not premised on compli-

ance with the NLRA's definition of a "labor organization," but

rather on the theory that a violation of employees' section 7 rights

under the NLRA is itself a form of election-related misconduct.

However, FSA has failed to point to any evidence in the record that

would show the alleged section 7 violation "reasonably tend[ed] to

interfere with the employees' free and uncoerced choice in the

election." Baja's Place, 268 N.L.R.B. at 868. We therefore reject

this theory as well.