The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2007 Decided July 27, 2007
No. 06-1160
SERVICE CORPORATION INTERNATIONAL, D/B/A OAK HILL
FUNERAL HOME AND MEMORIAL PARK,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA,
AFL-CIO, LOCAL NO. 270,
INTERVENOR
Consolidated with
06-1201
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Nick C. Geannacopulos argued the cause and filed the
briefs for petitioner.
Amy H. Ginn, Attorney, National Labor Relations Board,
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argued the cause for respondent. With her on the brief were
Ronald E. Meisburg, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Jill A. Griffin, Attorney. David
A. Rosenfeld, counsel for intervenor Laborer’s International
Union of North America, Local No. 270, joined in the brief of
respondent.
Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In its petition for review of a
National Labor Relations Board (“Board”) order, Service
Corporation International (“SCI”) challenges a representation
election narrowly won by the Laborers International Union of
North America, Local Union 270 (“Union”). SCI argues that
the Union campaign used altered sample ballots that had “the
tendency to mislead [its] employees into believing that the
Board favor[ed the Union].” Petitioner’s Br. at 14 (quoting
Sofitel San Francisco Bay, 343 N.L.R.B. 769, 769 (2004)). We
deny the petition and uphold the Board’s order because it is
supported by substantial evidence and is consistent with the
Board’s own precedent.
I.
SCI does business under the name Oak Hill Funeral
Home and Memorial Park in San Jose, California. As part of its
campaign to organize SCI’s maintenance employees, the Union
sent between twenty and thirty pro-union flyers to their homes
in the four months leading up to a July 16, 2004 representation
election. The flyers were mailed in envelopes with a Union logo
printed beside the return address. One flyer in particular, sent
3
several weeks before the election, included a sample ballot
bearing the Board’s seal in a Union envelope that also contained
the business card of a Union organizer. The word “sample” was
printed prominently across the ballot and a handwritten “X” had
been placed in a box showing a vote for the Union. There were
no markings on the face of the sample ballot to indicate its
source.1 During the campaign, SCI posted copies of the Board’s
standard Notice of Election in prominent spaces in and around
its workplace.2 The Notice explained that the Board “does not
endorse any choice in the election” and warned that “any
markings that you may see on any sample ballot . . . have been
made by someone other than the . . . Board.” SCI also held
meetings with its employees to review the Board’s sample ballot
and to answer questions about the election and the materials they
were receiving from the Union.
The Union carried the election by a vote of 23–20. SCI
filed an objection to the election with the Board, arguing that the
1
The Union later sent a second sample ballot to SCI’s
maintenance employees similar to the first, except that it included
various express exhortations to vote for the Union. SCI raised no
challenge to this sample ballot because there is no dispute that it was
clearly identified as Union propaganda.
2
The relevant portion of the Notice states, “WARNING:
THIS IS THE ONLY OFFICIAL NOTICE OF THIS ELECTION
AND MUST NOT BE DEFACED BY ANYONE. ANY
MARKINGS THAT YOU MAY SEE ON ANY SAMPLE BALLOT
OR ANYWHERE ON THIS NOTICE HAVE BEEN MADE BY
SOMEONE OTHER THAN THE NATIONAL LABOR
RELATIONS BOARD, AND HAVE NOT BEEN PUT THERE BY
THE NATIONAL LABOR RELATIONS BOARD. THE
NATIONAL LABOR RELATIONS BOARD IS AN AGENCY OF
THE UNITED STATES GOVERNMENT, AND DOES NOT
ENDORSE ANY CHOICE IN THE ELECTION.”
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first sample ballot the Union sent had the “tendency to mislead”
SCI’s employees into believing that the Board supported the
Union. A hearing on SCI’s objections was held in Oakland,
California on September 10, 20, 21, and 22, 2004. In his report
and recommendations to the Board, the hearing officer
concluded that SCI’s employees would know that the sample
ballot was Union propaganda and would not mistake it for Board
endorsement of the Union. The Board rejected SCI’s challenge
to the hearing officer’s conclusions and certified the Union’s
victory. When SCI refused to bargain, the Union filed an unfair
labor practice charge with the Board’s General Counsel, who
filed a complaint with the Board alleging that SCI had violated
§ 8(a)(5) and (1) of the National Labor Relations Act (“NLRA”
or “Act”). In response to a motion for summary judgment, SCI
admitted its refusal to bargain, but challenged the Board’s
certification of the election. The Board granted the motion in
favor of the General Counsel and ordered SCI to bargain with
the Union. Service Corp. Int’l, 346 N.L.R.B. No. 90, 2006 WL
1168862, at *1, 3 (Apr. 28, 2006). SCI now appeals that
decision arguing that the Union’s sample ballot tainted the
election results.
II.
We will uphold the Board’s decision unless “upon
reviewing the record as a whole, we conclude that the Board’s
findings are not supported by ‘substantial evidence,’ 29 U.S.C.
§ 160(e), (f),” Int’l Union of Electronic, Electrical, Salaried,
Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C.
Cir. 1994), or that its interpretation of the Act is not “reasonable
and consistent with applicable precedent,” Fashion Valley Mall,
LLC v. NLRB, 451 F.3d 241, 243 (D.C. Cir. 2006). When
making decisions about representation elections, the Board is
entitled to “a wide degree of discretion,” NLRB v. A.J. Tower
Co., 329 U.S. 324, 330 (1946), which we grant so long as “the
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Board has followed appropriate and fair procedures, and . . . has
reached a rational conclusion concerning whether the
atmosphere surrounding the election so attenuated free choice
that a rerun election was necessary,” Amalgamated Clothing &
Textile Workers Union v. NLRB, 736 F.2d 1559, 1564 (D.C. Cir.
1984).
This deference is based, in part, on our recognition that
Congress has given the Board responsibility to supervise
representation elections, Int’l Bhd. of Elec. Workers v. NLRB,
417 F.2d 1144, 1146 (D.C. Cir. 1969), and authority to
invalidate a result “if the actions of a party to the election
reasonably tended to interfere with the employees’ free and
uncoerced choice in the election,” N. of Mkt. Senior Servs., Inc.
v. NLRB, 204 F.3d 1163, 1169 (D.C. Cir. 2000) (quotation
marks omitted). Although none would dispute that elections
should be held in “laboratory . . . conditions as nearly ideal as
possible, to determine the uninhibited desires of the employees,”
General Shoe Corp., 77 N.L.R.B. 124, 127 (1948), our
deference to the Board in this area acknowledges “that union
elections are often not conducted under ideal conditions, that
there will be minor (and sometimes major, but realistically
harmless) infractions by both sides, and that the Board must be
given some latitude in its effort to balance the right of the
employees to an untrammeled choice, and the right of the parties
to wage a free and vigorous campaign,” NLRB v. Mar Salle,
Inc., 425 F.2d 566, 571 (D.C. Cir. 1970) (quotation marks
omitted); see also Amalgamated Clothing, 736 F.2d at 1562
(“[A]lthough the ‘laboratory conditions’ standard represents a
noble ideal, it must be applied flexibly.”).
When the Board concludes that an altered sample ballot
used in a campaign for a representation election has a tendency
to mislead employees into believing that the Board favors one of
the parties in the election, it has held that the employees’ right
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to an untrammeled choice has been infringed and ordered new
elections. See Sofitel San Francisco Bay, 343 N.L.R.B. at 771;
3-Day Blinds, 299 N.L.R.B. No. 6, 1990 WL 122544, at *3-4
(July 20, 1990). The Board has created a two-part test for
evaluating whether an altered sample ballot has the tendency to
mislead employees into believing that the Board has a favored
outcome. See SDC Investment, Inc., 274 N.L.R.B. 556, 557
(1995). The Board first determines whether “an altered [sample]
ballot . . . on its face clearly identifies the party responsible for
its preparation.” Id. If the source of the altered sample ballot is
not clear from its face, “then the Board will examine the nature
and contents of the document, as well as the circumstances of its
distribution,” Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1129
(D.C. Cir. 1996) (quotation marks and alterations omitted), to
determine whether the document has “the tendency to mislead
employees into believing that the Board favors one [of the
parties to the election],” SDC Investment, Inc., 274 N.L.R.B. at
557. In addition, the Board has also considered whether
employees had ample opportunity to become familiar with the
Board’s declaration of neutrality. Kwik Care, 82 F.3d at 1129-
30. Because both sides in this dispute agree that the altered
sample ballot did not, on its face, clearly identify who was
responsible for its preparation and distribution, the only question
for us is whether the altered sample ballot had the tendency to
mislead SCI’s employees into believing that the Board had taken
the Union’s side in the election.
The Board properly considered the nature and contents
of the document, the circumstances of its distribution, and the
employees’ opportunity to become familiar with the Board’s
declaration, and determined that the altered sample ballot did not
have the tendency to mislead SCI’s employees. Looking to the
nature and contents of the document, the Board found that the
fact that the sample ballot was “off-center,” contained “stray
marks” characteristic of a photocopied document, and had only
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a partial reproduction of the Board’s disclaimer from the Notice
of Election would lead a reasonable employee to think that the
flyer was not an official Board publication. Regarding the
extrinsic evidence of the flyer’s source and distribution, the
Board found that because it was mailed in a Union envelope
with the business card of a Union organizer, and the employees
had received twenty to thirty other mailings from the Union in
a similar fashion (one of which was a second sample ballot that
clearly identified the Union as its source), a reasonable
employee would conclude that the flyer came from the Union.
Moreover, the Board determined that SCI’s employees had
ample opportunity to familiarize themselves with the Board’s
declaration of neutrality. The Board’s official Notice of
Election with its neutrality declaration was prominently posted
throughout SCI’s facility, and SCI reviewed the sample ballot
with the employees on several occasions prior to the election.
In light of this substantial evidence, we conclude that the Board
reasonably determined that the sample ballot did not have a
tendency to mislead.
SCI repeats an argument to us that it made
unsuccessfully to the Board—that the Board, by affirming the
employees’ election of the Union in the face of the altered
sample ballots, has ignored its own precedent in Sofitel San
Francisco Bay, a case SCI maintains is practically
indistinguishable from this one. 343 N.L.R.B. 769. In Sofitel,
the Board overturned a representation election because it
determined that a marked sample ballot distributed by a union
had the tendency to mislead employees into thinking that the
Board supported the union position. SCI asserts that the sample
ballot in Sofitel looked even less official than the ballot in
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dispute before us.3
SCI is correct to point out that “[t]he Board cannot
ignore its own relevant precedent but must explain why it is not
controlling.” Antelope Valley Bus Co. v. NLRB, 275 F.3d 1089,
1092 (D.C. Cir. 2002) (quotation marks omitted), but the Board
has not ignored Sofitel and has adequately explained why it is
not controlling here. The Board noted three ways in which the
facts of Sofitel differ from the facts here. First, the physical
appearance of the sample ballot in Sofitel contained no “words
or markings” or other indications that it was a photocopy of
another document. Second, there was no evidence in Sofitel that
the “employees had ever seen, much less discussed with the
employer, any sample ballots that contained the Board’s
disclaimer language.” Service Corp. Int’l, 345 N.L.R.B. No. 35,
2005 WL 2102985, at *5 (Aug. 27, 2005). Finally, in contrast
to the twenty to thirty other mailings sent by the Union here, the
Sofitel sample ballot was the only piece of union propaganda
that was sent or distributed to employees before the election. In
light of these significant distinguishing features, we find that it
was not unreasonable for the Board to reach a different
conclusion here than it did in Sofitel.
We conclude that the Board’s decision was supported by
substantial evidence and consistent with precedent, and therefore
we deny SCI’s petition for review and grant the Board’s
cross-motion for enforcement.
3
Unlike the Union’s ballot here, the sample ballot in Sofitel
did not include any part of the Board’s neutrality disclaimer. On the
Sofitel ballot the word “MUESTRA” (Spanish for “sample”) was
typed in large letters across the top, at the bottom the phrase “POR
FAVOR–SI SE PUEDE” (Spanish for “Please–Yes it can be done”)
was handwritten in capital letters, and each potential voter’s name was
handwritten on the left side of the document.
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So ordered.