AOTOP, LLC v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 27, 2003 Decided June 10, 2003

No. 01-1486

AOTOP, LLC, D/B/A EXCEL REHABILITATION AND

HEALTH CENTER,

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

Clifford H. Nelson, Jr. argued the cause and filed the briefs

for petitioner.

Jeffrey L. Horowitz, Attorney, National Labor Relations

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

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Deputy Associate General Counsel, and Robert J. Englehart,

Supervisory Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and

RANDOLPH, Circuit Judges.

Opinion for the court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: This case concerns the validity of

an election in which employees of AOTOP, LLC, chose the

Service Employees International Union, AFL–CIO, to be

their exclusive bargaining representative. Over the Compa-

ny’s objections, the National Labor Relations Board certified

the election results and, after the Company refused to bar-

gain with the Union, concluded the Company violated

§§ 8(a)(1) & (a)(5) of the National Labor Relations Act, 29

U.S.C. §§ 158(a)(1) & (a)(5). In its petition for review, the

Company argues that the Board should have ordered a rerun

election or, at a minimum, held a hearing on the Company’s

allegations that Union misconduct and the lack of a foreign

language interpreter rendered the election unfair. We up-

hold the Board’s conclusion that the Company’s allegations

and evidence were insufficient to merit a hearing. According-

ly, we deny the petition for review and grant the Board’s

cross-application for enforcement of its order.

I. Background

AOTOP owns and operates the Excel Rehabilitation and

Nursing Center in Tampa, Florida. In December 2000 the

Union filed a petition seeking Board certification as the

representative of Excel’s service and maintenance employees.

The Regional Director of the Board, pursuant to an agree-

ment between the Company and the Union, scheduled an

election for late January 2001.

In pre-election correspondence the Company’s attorney

requested accommodation for employees who were not native

English speakers. In a letter dated January 15, 2001, the

attorney wrote:

At the time that we entered into the stipulation for

an election TTT I indicated that it was sufficient for

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the ballots and election notices to be only in English.

TTT Unfortunately, as a result of more intensive

communications by the Employer’s on-site manage-

ment, I have been advised that it would be beneficial

and in some cases necessary, for the ballots and

election notices to be printed in Spanish and French

(Creole) as well.

In a second letter four days later the attorney confirmed that,

of the 73 employees eligible to vote in the upcoming election,

16 spoke either Spanish or French Creole. The letter con-

cluded: ‘‘I will assume that the necessary measures to ad-

dress these changed circumstances will be implemented, un-

less I hear from you to the contrary.’’ In response to these

letters, the Regional Director provided election notices and

ballots translated into Spanish and French Creole.

According to the Company, in the period leading up to the

election an employee named Cheryl Jennings tried to intimi-

date her coworkers into voting for the Union. Jennings

allegedly asked her fellow employees how they were going to

vote, told them they ‘‘had to vote for the Union,’’ and followed

one housekeeping employee ‘‘as she attempted to perform her

duties.’’ The Company claims that at least five employees

were disturbed by this conduct—two so much that they

resigned prior to the election.

When the Union won the election, the Company, in objec-

tions filed with the Regional Director, argued that the results

were invalid because of Jennings’ conduct. The Company

produced the names of the five employees who would testify

that they were intimidated, and identified Jennings as ‘‘one of

the most active employees in support of the Union’s election

campaign efforts TTT [and] an observer for the Union on the

day of the election.’’ The Company stated that it would

subpoena the Union’s financial records in order to show

‘‘wage payments or reimbursements to Cheryl Jennings TTT

[and] other Union campaign records [that] would further

establish that Ms. Jennings was an active organizer and agent

of the [Union].’’ In addition, the Company argued that its

letters to the Regional Director had put the Board on notice

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of the need for an interpreter, and that the election results

should be set aside because the Board failed to provide one.

The Regional Director recommended that the Board over-

rule the Company’s objections and certify the election results

because (1) the Company’s evidence, even if true, was insuffi-

cient to establish a prima facie claim of election misconduct,

and therefore did not warrant a hearing, and (2) it was the

Company’s duty to inform the Board of the need for an

interpreter, which it failed to do. The Board adopted the

findings and recommendations of the Regional Director. In

order to get judicial review of that decision, the Company

refused to bargain with the Union and defended the ensuing

unfair labor practice charge solely upon the ground that the

election was invalid. See Boire v. Greyhound Corp., 376 U.S.

473, 476–77 (1964) (certification decisions not reviewable as

such, but can be examined in proceedings brought against

employer for refusal to bargain). The Board summarily

rejected the Company’s defense, AOTOP, LLC, 336 N.L.R.B.

No. 10, 2001 NLRB LEXIS 784 (Sept. 28, 2001), and the

Company petitioned for review.

II. Analysis

The Company argues that Union misconduct and the

Board’s failure to provide an interpreter each independently

tainted the election. We consider those points whilst keeping

in mind the Board’s broad discretion ‘‘to assess the propriety

and results of representation elections.’’ North of Market

Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir.

2000).

A. Union misconduct

The Company makes no serious claim the evidence of

Union misconduct in the present record conclusively estab-

lishes that the election should be set aside. Rather, the

Company maintains it was an abuse of discretion for the

Board to reject its claim without a hearing.

A party to a Board-supervised election is not entitled to a

hearing on its objections unless the evidence raises a ‘‘sub-

stantial and material issue[ ] of fact sufficient to support a

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prima facie showing of objectionable conduct.’’ Swing Stag-

ing, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir. 1993) (citing

29 C.F.R. § 102.69(d)). Whether the Company’s evidence

was sufficient depends upon the Board’s ‘‘substantive criteria’’

for a claim of election misconduct. Id. Those criteria, in

turn, depend upon who is charged with interfering with the

election.

Where election misconduct is attributable to one of

the parties, the Board will overturn the election if

the misconduct created such an environment of ten-

sion and coercion as to have had a probable effect

upon the employees’ actions at the polls and to have

materially affected the results of the election.

Where misconduct is attributable to third parties,

however, the Board will overturn an election only if

the misconduct is so aggravated as to create a

general atmosphere of fear and reprisal rendering a

free election impossible.

Overnite Transp. Co. v. NLRB, 140 F.3d 259, 264–65 (D.C.

Cir. 1998) (citations and quotations omitted).

The Board applies common law principles of agency, includ-

ing the doctrine of apparent authority, in order to determine

whether a union (or employer) is responsible for the miscon-

duct of its supporters. Id. at 265. In view of the factual

nature of that determination, an evidentiary hearing ordinari-

ly will be required in order to resolve a dispute about the

relationship between a person alleged to have interfered with

a Board-supervised election and one of the parties to that

election. We review the Board’s finding for reasonableness

and to ensure that it is supported by substantial evidence.

Id.

We agree with the Company that the Regional Director

erred by deciding, on the basis of an undeveloped record, that

Jennings was not an agent of the Union. The case upon

which the Regional Director relied, Advance Prods. Corp.,

304 N.L.R.B. 436, 1991 NLRB LEXIS 1043 (Aug. 27, 1991), is

inapposite; although the Board there found apparent authori-

ty lacking, it did so with reference to details that had been

developed at a hearing. Id. at 436. Meanwhile, the Regional

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Director’s statement that the Company presented ‘‘no evi-

dence’’ to support its assertion that the Union’s records would

demonstrate that the Union hired Jennings to conduct pro-

Union activities is erroneous. The Company submitted an

affidavit identifying Jennings as an active Union supporter

and ‘‘an observer for the Union on the day of the election.’’

The Company cannot be expected, in order to justify a

hearing on the question of agency, to produce detailed infor-

mation about the Union’s records—the very information to

which it seeks access through the hearing and associated

discovery process. See Colquest Energy, Inc. v. NLRB, 965

F.2d 116, 122 (6th Cir. 1992) (remanding for hearing upon

agency question after noting employer’s contention that ‘‘only

[the Union] has access to vital information concerning [the

purported agents] within its files’’).

Our conclusion that the Regional Director improperly con-

cluded Jennings was not acting as an agent of the Union does

not necessarily entitle the Company to relief, however. The

Regional Director held, in the alternative, that the Company’s

evidence was insufficient to merit a hearing under the stan-

dard for evaluating misconduct by the agent of a union (or

employer) during the run-up to an election; more specifically,

the Company did not raise a substantial factual question

whether there had been ‘‘misconduct [that] created such an

environment of tension and coercion as to have had a proba-

ble effect upon the employees’ actions at the polls and to have

materially affected the results of the election.’’ Overnite

Transp. Co., 140 F.3d at 264 (citations and quotations omit-

ted). We agree with the Regional Director’s determination.

The Company alleged only that Jennings told fellow em-

ployees they ‘‘had to’’ vote for the Union, asked employees

how they were going to vote, and followed an employee while

she worked. Whether that conduct, assuming it occurred, is

sufficiently serious to have had ‘‘a probable effect upon the

employees’ actions at the polls,’’ id., is an objective question

for the Board, which asks whether the alleged misconduct is

of a type that would cause interference with the free choice of

a reasonable employee. See Kmart Corp., 322 N.L.R.B. 1014,

1015, 1996 NLRB LEXIS 91 (Feb. 6, 1997) (‘‘Subjective

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reactions of employees are irrelevant to the question of

whether there was, in fact, objectionable conduct’’). It is

therefore of little moment that the Company’s witnesses were

denied the opportunity to testify that they were intimidated.

We find no abuse of discretion in the Board’s rejection of

the Company’s claim. Coercive campaigning can be threaten-

ing in any number of ways, but most commonly preys upon

the employee’s fear for her job security or personal safety.

As the Regional Director noted, the Company produced noth-

ing to suggest Jennings had any authority over any of her

coworkers such that they might reasonably fear job-related

reprisal if they voted against the Union. Nor did the Compa-

ny suggest Jennings expressly threatened such reprisal,

much less any physical harm. Yet the Company has cited no

case in which the Board has required a hearing to explore

such seemingly innocuous conduct as telling an employee she

‘‘had to’’ vote in a particular way or following an employee

around the workplace. Indeed, we have upheld the Board in

holding unobjectionable more serious conduct than that. Cf.

Amalgamated Clothing, 736 F.2d at 1564–70 (under ‘‘fear and

coercion’’ standard, boasts by pro-union employees that ‘‘peo-

ple could be hurt’’ and ‘‘cars [would be] torn up’’ and panoply

of anonymous pre-election threats and incidents of vandalism

insufficient, even taken together, to warrant re-run election).

We therefore uphold the Board’s conclusion that the Compa-

ny failed to present evidence meriting a hearing on its claim

of election misconduct.

B. Lack of an interpreter

The Company’s claim that the election results should be set

aside because the Board failed to provide Spanish and French

Creole interpreters gives us little pause. Although the Board

has recognized the importance of foreign language assistance

to ensuring a fair election and has ruled that under certain

circumstances it must provide translated notices or ballots,

e.g., Fibre Leather Mfg. Corp., 167 N.L.R.B. 393, 1967 NLRB

LEXIS 50 (Sept. 11, 1967) (‘‘Regional Director did not con-

duct the election with due regard to the needs of Portuguese-

speaking employees who could not read English’’), the

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Board’s policy is to depend upon a party to request a lan-

guage accommodation. National Labor Relations Board, Ca-

sehandling Manual, Part 2, Representation Proceedings

§ 11315.1 (1999) (‘‘Parties should advise the Regional Di-

rector of the need for foreign language translations and/or

interpreters’’).

The Company does not challenge the validity of the Board’s

policy but asserts that its letters to the Regional Director

constituted a request for interpreters. As noted above, how-

ever, the Company’s attorney wrote only that ‘‘it would be

beneficial and in some cases necessary for the ballots and the

election notices to be printed in Spanish and French (Creole)

as well [as in English].’’ The Regional Director duly com-

plied with that request. The Company claims the Board

should also have divined the need for an interpreter. The

Company has cited no authority for this proposition, however,

nor any reason to add mind-reading to the Board’s already

difficult task list in supervising Union elections. Because the

Company made no specific request for an interpreter, it will

not be heard now to claim the Board’s failure to provide one

rendered the election unfair.

III. Conclusion

For the foregoing reasons, we deny the Company’s petition

for review and grant the Board’s cross-application for en-

forcement of its order.

So ordered.