Exela Enterprise Solutions v. NLRB

Case: 21-60426 Document: 00516291683 Page: 1 Date Filed: 04/22/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 22, 2022

No. 21-60426

Lyle W. Cayce

Clerk

Exela Enterprise Solutions, Incorporated,

Petitioner—Cross-Respondent,

versus

National Labor Relations Board,

Respondent—Cross-Petitioner,

On Petition for Review and Cross-Application

For Enforcement of an Order of the

National Labor Relations Board

NLRB No. 22-CA-272676

Before Stewart, Clement, and Elrod, Circuit Judges.

Edith Brown Clement:

Exela Enterprise Solutions, Inc. (“Exela”), seeks review of a National

Labor Relations Board (“NLRB” or “Board”) order finding that Exela

violated the National Labor Relations Act (“NLRA”) by refusing to bargain

with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,

Allied Industrial and Service Workers International Union, AFL-CIO-

CLC (“Union”). The Board cross-petitions for enforcement. Because

substantial evidence supports the Board’s findings, we DENY Exela’s

petition for review and GRANT the Board’s cross-petition for enforcement.

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No. 21-60426

I

Exela provides office services and facilities management at a Bristol-

Myers Squibb warehouse in New Brunswick, New Jersey. On March 29,

2019, the Board conducted a representation election at Exela’s New

Brunswick site. Of fourteen eligible voters, eight employees voted for Union

representation and six voted against it.

Exela filed timely objections to the conduct of the Union on the

morning of the election and sought to set aside the results. Following a

hearing, a Hearing Officer of the NLRB recommended overruling each

objection and certifying the Union as the exclusive collective-bargaining

representative. A Regional Director of the NLRB adopted the findings and

recommendation and certified the Union. The Board declined review.

Exela nevertheless advised that it would not engage in bargaining

because it did not consider the Union to be the properly certified

representative of its employees. The Union filed an unfair labor practice

charge with the NLRB. The then-Acting General Counsel issued a

complaint, asserting that Exela violated the NLRA by refusing to bargain in

good faith with the Union. See 29 U.S.C. § 158(a)(1), (5). In its answer, Exela

reasserted that the Union had been improperly certified. It also raised an

affirmative defense that the unfair-labor-practices complaint was ultra vires

because the President unlawfully removed the former General Counsel

without cause.

The Acting General Counsel moved for summary judgment, which

the Board granted, finding that Exela failed to offer new evidence or special

circumstances warranting review of the certification decision. The Board

declined to address the authority of the Acting General Counsel. The

Board’s order required Exela to cease and desist from unfair labor practices,

to bargain with the Union upon request, to embody any understanding

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reached in a signed agreement, and to post appropriate notice. Exela

petitioned this Court for review. The Board applied for cross-enforcement

of its order certifying the Union as the exclusive collective-bargaining

representative of Exela employees at the New Brunswick site.

II

We begin with Exela’s challenge to the unfair-labor-practice

complaint issued against it by the then-Acting General Counsel. Exela

contends that the prosecution was ultra vires because the President

unlawfully removed the former General Counsel without cause. The Board

declined to rule on the lawfulness of the General Counsel’s removal,

explaining: “Even assuming, arguendo, that the Board would have

jurisdiction to review the actions of the President, we have determined that

it would not effectuate the policies of the [NLRA] to exercise this

jurisdiction.” But the Board has since determined in another labor dispute

that the Supreme Court’s recent decision in Collins v. Yellen, 141 S. Ct. 1761

(2021), “foreclosed any reasonable argument that the President lacked

authority to remove [the] General Counsel.” Aakash, Inc., No. 32-CA-

282957, 371 NLRB No. 46, at *2 (Dec. 30, 2021). Our review is de novo. Poly-

Am., Inc. v. NLRB, 260 F.3d 465, 476 (5th Cir. 2001).

On his first day in office, President Biden took the unprecedented step

of removing General Counsel Peter B. Robb without cause ten months prior

to the expiration of his statutory term.1 The President designated Peter Sung

1

Although General Counsel Robert N. Denham resigned under presidential

pressure in 1950, no General Counsel of the NLRB has previously been removed. See Ian

Kullgren & Josh Eidelson, Biden Fires NLRB General Counsel After He Refuses to Resign,

BLOOMBERG L. (Jan. 20, 2021, 8:42 PM),

https://www.bloomberglaw.com/bloomberglawnews/daily-labor-

report/XC87J9O000000.

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Ohr as Acting General Counsel.2 Then-Acting General Counsel Ohr issued

the unfair-labor-practice complaint against Exela. Exela contends that the

President’s removal of General Counsel Robb was unlawful because the

General Counsel of the NLRB enjoys the same protections from removal as

the Members of the Board. We disagree.

The Supreme Court recently affirmed the longstanding rule that

“[w]hen a statute does not limit the President’s power to remove an agency

head, [courts] generally presume that the officer serves at the President’s

pleasure.” Yellen, 141 S. Ct. at 1782; see also Shurtleff v. United States, 189

U.S. 311, 315 (1903) (requiring “very clear and explicit language” in the

statute, and not “mere inference or implication,” to establish removal

limitations). Thus, we begin by reading the NLRA to determine if express

statutory language insulates the General Counsel from removal.

Here, no provision of the NLRA protects the General Counsel of the

NLRB from removal. Whereas Congress clearly and unequivocally

provided removal protections to the Board Members, it did not grant those

same protections to the General Counsel. The statute provides that the five

Members of the Board shall be “appointed by the President by and with the

advice and consent of the Senate . . . for terms of five years each,” and “may

be removed by the President, upon notice and hearing, for neglect of duty or

malfeasance in office, but for no other cause.” 29 U.S.C. § 153(a). By

contrast, in a separate provision, the NLRA creates the position of the

General Counsel, who “shall be appointed by the President, by and with the

advice and consent of the Senate, for a term of four years.” Id. § 153(d). The

provision is silent as to any tenure protections. And no other provision in the

NLRA limits the removal of the General Counsel. We do not read Congress’

2

The NLRA authorizes the President to temporarily fill a vacancy in the office of

the General Counsel. See 29 U.S.C. § 153(d).

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silence as an invitation to graft onto the statute an otherwise absent for-cause

limitation. Rather, “when Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” Yellen, 141 S. Ct. at 1782 (quoting Barnhart

v. Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002)). Congress knew how to

give removal protections to the General Counsel. And Congress chose not

to do so.

Exela turns this logic on its head by arguing that we should compare

the statutory language specifying the “grounds for Board member removal”

with the absence of any removal provisions for the General Counsel.

Therefore, Exela reasons, “if Congress wanted to enable the President to

remove the Board’s General Counsel mid-term, it would not have disparately

excluded such language.” This gets it exactly backwards. Congress cannot

“enable” the President to exercise his removal powers. The President’s

power to remove derives from Article II of the Constitution, not from

Congress. See Myers v. United States, 272 U.S. 52, 163–64 (1926).

Exela next argues that we should read the statutory language, “shall

be appointed by the President, by and with the advice and consent of the

Senate, for a term of four years,” as curbing the President’s removal power

by providing for an absolute four-year term. See 29 U.S.C. § 153(d)

(emphasis added). We disagree. As a textual matter, “shall” applies to the

General Counsel’s appointment and confirmation. It is not clear that “shall”

also applies to the term-limit language. See ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 152–53

(2012) (“[A] prepositive or postpositive modifier normally applies only to

the nearest possible referent.”). But even assuming that “shall” does apply

to the statute’s provision of a four-year term, the Supreme Court squarely

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rejected that such language restricts the President’s removal powers in a

similar context over one hundred years ago.

In Parsons v. United States, the Court ruled on a challenge to the

President’s authority to remove a Senate-confirmed district attorney from

his appointment eight months short of his four-year term. 167 U.S. 324, 327

(1897). Similar to the NLRA, the statutory language provided that district

attorneys “shall be appointed for a term of four years.” Id. at 327–28

(emphasis added) (quoting Rev. Stat. § 769 (1878)). The former district

attorney argued that this language “gives to every district attorney the legal

right to hold his office for four years, and that during that time the president

has no power to remove him directly . . . [or] indirectly.” Id. at 328. The

Court disagreed. Id. at 338. It held that the statutory language, “shall be

appointed,” signified only that the district attorney’s term would expire at

the end of four years, not that he held “an unconditional term of office for

that period. It was an act of limitation, and not of grant.” Id. Similarly, here,

the statutory language “shall be appointed . . . for a term of four years” only

limits the General Counsel’s term of office to four years and does not grant

immunity from removal.

And we do not read Parsons as limited to its facts. In Myers, the

Supreme Court affirmed a broad reading of Parsons. 272 U.S. at 141–43.

There, the Court noted a tension between its holding in Parsons and its prior

statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that a justice

of the peace’s “appointment was not revocable” because “the law creating

the office[] gave the officer a right to hold [it] for five years.” Myers, 272 U.S.

at 141 (quoting Marbury, 5 U.S. at 162). The Court held that, assuming its

statement in Marbury “was more than a dictum,” Parsons “overrule[d] it.”

Id. at 143. Thus, Parsons applies to all term-of-office provisions, including

the one governing the General Counsel in the NLRA.

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Taking a different tack, Exela argues that we should find removal

protections implicit in the NLRA because the General Counsel is, “by virtue

of its title and as evidenced by the responsibilities delegated to the position

by the Board, . . . tantamount to a member of the Board.” Exela fails to

explain how the title of the General Counsel is “tantamount” to that of a

Board Member. It is true that the statute refers to the “General Counsel of

the Board” within a Section titled, “National Labor Relations Board.” 29

U.S.C. § 153(d) (emphasis added). But, as a textual matter, that plainly does

not make the General Counsel a Member of the Board. In the provision

granting tenure protections to Board Members, the NLRA clearly and

explicitly creates a Board of “five” members. Id. § 153(a). It does not say

“some members of the Board,” or “six members of the Board, including the

General Counsel.” The distinction between the General Counsel and Board

Members is reinforced by the treatment of the two offices as distinct in the

statutory provision for reappointment of “[e]ach member of the Board and

the General Counsel.” Id. § 154(a). That language would be redundant if we

accepted Exela’s reading of the statute. We are not persuaded that Congress

would legislate in such an obscure manner when shielding the General

Counsel from removal.3

The statutory text also undermines Exela’s contention that the

General Counsel’s “responsibilities delegated to the position by the Board”

render him “fully and inextricably linked to the Board itself.” The NLRA

3

The two positions are distinct in other ways too. They hold distinct terms—

compare 29 U.S.C. § 153(a) (providing a five-year term to Board Members), with id. § 153(d)

(providing a four-year term to the General Counsel)—and have distinct term limits on

vacancy appointments—compare id. § 153(a) (providing that “any individual chosen to fill

a vacancy [on the Board] shall be appointed only for the unexpired term of the member

whom he shall succeed”), with id. § 153(d) (providing the President authority to

temporarily fill a vacancy in the office of the General Counsel but limiting the term of acting

service to forty days, with the possibility of a nomination-based extension).

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creates a stark division of labor between the General Counsel and the Board.

The statute created the Board to execute quasi-legislative, quasi-judicial

functions. See id. § 156 (authorizing the Board to promulgate regulations);

id. § 160(c) (authorizing the Board to adjudicate labor disputes). By contrast,

the NLRA created the General Counsel to perform quintessentially

prosecutorial functions, including the “exercise [of] general supervision”

over officers and employees in the NLRB (excepting administrative law

judges and legal assistants to the Board), “investigation of charges,”

“issuance of complaints,” and “prosecution of such complaints.”4 Id.

§ 153(d). As the Supreme Court has recognized, “[t]he words, structure,

and history of the . . . NLRA clearly reveal that Congress intended to

differentiate between the General Counsel’s and the Board’s ‘final

authority’ along a prosecutorial versus adjudicatory line.” NLRB v. United

Food & Com. Workers Union, Loc. 23, 484 U.S. 112, 124 (1987). Thus, we do

not find that the responsibilities of the General Counsel justify an inference

of for-cause removal protection either.

Exela’s citations to Humphrey’s Executor v. United States, 295 U.S. 602

(1935), and Wiener v. United States, 357 U.S. 349 (1958), are misplaced. In

Humphrey’s Executor, the Court upheld removal protections for the

Commissioners of the Federal Trade Commission because the Commission

exercised “no part of the executive power,” but rather, was “an

administrative body” that performed “specified duties as a legislative or as a

judicial aid.” 295 U.S. at 628. The Court limited its holding “to officers of

the kind here under consideration,” id. at 632, meaning: “a multimember

4

The NLRA also authorizes the General Counsel to perform “such other duties

as the Board may prescribe.” 29 U.S.C. § 153(d). But we recognize “[a] general limitation

on the ability of the Board to delegate duties to the General Counsel[, which] lies in the

distinction between prosecutorial duties and adjudicatory functions.” Overstreet v. El Paso

Disposal, L.P., 625 F.3d 844, 852 (5th Cir. 2010).

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body of experts, balanced along partisan lines, that performed legislative and

judicial functions and was said not to exercise any executive power,” Seila

Law LLC v. CFPB, 140 S. Ct. 2183, 2199 (2020). Humphrey’s Executor does

not assist Exela for three reasons. First, that case concerned a statute

specifically providing removal protections. 295 U.S. at 623. Here, the parties

ask us to read protections where Congress did not expressly include them.

Second, Humphrey’s Executor relied on the combination of explicit for-cause

protection and a fixed term limit to uphold removal protections in the statute.

Id. That situation is not before us. And third, the General Counsel is simply

not an “officer of the kind” considered by the Court in Humphrey’s Executor.

The position is not judicial or legislative, but core to the executive function.

Wiener also does not support the implication of removal protections

for the General Counsel. In Wiener, the Supreme Court applied the

“philosophy of Humphrey’s Executor” and inferred tenure protections for the

Senate-confirmed members of the War Claims Commission (“WCC”). 357

U.S. at 356. The WCC was a multi-member, adjudicative body established

by the War Claims Act of 1948 “to receive and adjudicate according to law”

claims for compensation arising from World War II-related injuries or

damage. 357 U.S. at 350 (quoting 50 U.S.C. § 4102). Although the Act did

not expressly provide WCC members with tenure protections, the Court

concluded that such protections were implicit in the statute. Wiener, 357

U.S. at 353–56. The Court reasoned that “the most reliable factor for

drawing an inference regarding the President’s power of removal . . . is the

nature of the function that Congress vested in” that officer. Id. at 353.

Because the statute created the WCC to adjudicate claims according to

law—“that is, on the merits of each claim, supported by evidence and

governing legal considerations, by a body that was ‘entirely free from the

control or coercive influence, direct or indirect’”—the Court concluded that

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Congress intended to protect members of the WCC from the President’s

removal power. Id. at 356–57 (quoting Humphrey’s Ex’r, 295 U.S. at 629).

Wiener’s theory of implied removal protection is inapposite here for

three reasons. First, the Wiener Court implied removal protections in the

face of statutory language that was absolutely silent on the question. See 50

U.S.C. § 4102. Wiener relied on the logic that Congress must have intended

to protect the WCC from at-will removal but simply did not address removal

protections in the statute. 357 U.S. at 356. That logic does not hold here.

Congress explicitly stated its intent to provide removal protections in the

NLRA, but only with respect to the Board. See 29 U.S.C. § 153(a), (d).

Second, the General Counsel is not an adjudicative body like the

WCC. Thus, the inference of tenure protection accorded to executive

officers who perform duties of an “intrinsic[ally] judicial character” does not

apply to the General Counsel. Wiener, 357 U.S. at 355. Rather, the General

Counsel is more like the “purely executive officers” for whom the Supreme

Court has held for-cause protections were unlawful. Id. at 352 (quoting

Humphrey’s Ex’r, 295 U.S. at 628); see, e.g., Yellen, 141 S. Ct. at 1783; Seila

Law, 140 S. Ct. at 2207.

And third, Wiener’s exclusive focus on the function of the executive

officer predates Morrison v. Olson, in which the Supreme Court shifted the

focus to “whether the removal restrictions are of such a nature that they

impede the President’s ability to perform his constitutional duty.” 487 U.S.

654, 691 (1988). Exela makes no argument that the absence of removal

protections for the General Counsel impedes the President’s Article II

duties. But our implication of for-cause removal protections insulating the

General Counsel’s quintessentially prosecutorial function may “mean[] an

unlucky President might get elected on [a labor-rights] platform and enter

office only to find [himself] saddled with a holdover Director from a

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competing political party who is dead set against that agenda.” Seila Law,

140 S. Ct. at 2204.

Finally, Exela argues that we should imply removal protections for the

General Counsel because of “Congress’s intent that [the NLRB] function

as an independent agency.” The logic apparently being that the absence of

removal protections allows for political motives to undermine the General

Counsel’s neutral investigation and prosecution of labor disputes. But that

Congress created the NLRB as an independent agency does not license

federal courts to read into the statute for-clause limitations that Congress did

not expressly include. Cf. Yellen, 141 S. Ct. at 1782 (“Congress has described

many agencies as ‘independent’ without imposing any restriction on the

President’s power to remove the agency’s leadership.”). As discussed,

federal courts “generally presume that the President holds the power to

remove at will executive officers and that a statute must contain ‘plain

language to take [that power] away.’” Id. at 1783 (quoting Shurtleff, 189 U.S.

at 316). Congress may well have wanted to provide greater protection for the

Members of the Board—who hold expansive quasi-legislative, quasi-judicial

powers over labor rights disputes—than for the General Counsel.

The President’s power to remove is essential to the performance of

his Article II responsibilities and control over the Executive Branch. Because

we hold that the NLRA does not provide tenure protections to the General

Counsel of the Board, President Biden lawfully removed former-General

Counsel Robb without cause. The prosecution brought by then-Acting

General Counsel Ohr against Exela was proper.

III

Now, we turn to Exela’s contention that the Board improperly ruled

that Exela violated Sections 8(a)(1) and (5) of the NLRA. We review

representation proceedings for the limited purpose of deciding whether to

enforce, modify, or set aside the Board’s unfair-labor-practice order in whole

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or in part. See 29 U.S.C. § 159(d). The Board’s enforcement order turns on

the validity of its earlier decision to certify the union. In turn, the certification

order will be enforced if the Board’s factual findings are “supported by

substantial evidence on the record considered as a whole.” Id. § 160(e).

“Substantial evidence is that which is relevant and sufficient for a reasonable

mind to accept as adequate to support a conclusion. It is more than a mere

scintilla, and less than a preponderance.” UNF W., Inc. v. NLRB, 844 F.3d

451, 456 (5th Cir. 2016) (citation omitted).

We are guided by the “strong presumption” that representation

elections “reflect the true desires of the employees.” NLRB v. Hood

Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991). Therefore, the party

challenging the outcome “bears the entire burden of adducing prima facie

facts sufficient to invalidate the election.” Id. That showing requires

“specific evidence of specific events from or about specific people”

establishing a level of interference with employees’ free choice that tended

to or did materially influence the results of the election. Con-way Freight, Inc.

v. NLRB, 838 F.3d 534, 537 (5th Cir. 2016) (citation omitted).

The Board’s legal conclusions are reviewed de novo, and its procedural

and evidentiary rulings for abuse of discretion. UNF W., 844 F.3d at 457.

A

First, Exela objected that the election should be set aside because an

alleged agent of the Union, Fred Johnson, spoke with Exela employees during

their shifts within twenty-four hours of the election, in violation of the

Board’s rule in Peerless Plywood Co., 107 NLRB 427 (1953).

On the morning of the election, Wanda Rodriguez, an Exela employee,

observed Johnson “huddling” with three eligible voters in the receiving area

during their shifts. Johnson was an employee of Jones Lange LaSalle

(“JLL”), a separate employer with employees also working at the New

Brunswick site. As part of his job duties, he routinely picked up packages in

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the receiving area, which is in a large, open warehouse space. Johnson also

served as Union steward for a unit of JLL employees at the New Brunswick

site.

Rodriguez told her supervisor, Jo Ann Lee, that Johnson was

“huddled up with some of the staff.” Lee then approached Johnson and

asked if he needed help. He said that he had been looking for a package and

eventually left without any packages. Neither Lee nor Rodriguez overheard

the content of Johnson’s discussion with the Exela employees.

Exela’s objection is premised on Johnson’s alleged status as an agent

of the Union. The Union’s responsibility for the acts of an agent is a question

of fact governed by common law principles. Poly-Am., 260 F.3d at 480. An

agency relationship exists when an individual has either actual authority or

apparent authority to act on behalf of another. In re Cornell Forge Co., 339

NLRB 733, 733 (2003). The agency relationship “must be established with

regard to the specific conduct that is alleged to be unlawful.” Id. Here, that

conduct was organizing an Exela bargaining unit for the Union. The Regional

Director found no evidence in the record supporting the existence of an

agency relationship. We agree.

Exela first contends that Johnson’s role as Union shop steward for a

unit of employees at JLL gave him actual authority on behalf of the Union,

and that his title as president of the local affiliate of the Union “enhance[d]

his agency status.” But neither role conferred actual authority with respect

to the Union’s organizing of Exela employees.

Johnson’s role in the local affiliate does not confer an agency

relationship with the Union because international unions are independent

legal entities from their local affiliates. See In re Gen. Teamsters,

Warehousemen & Helpers Union, Loc. 890, 265 F.3d 869, 874–75 (9th Cir.

2001) (“[F]ederal labor law has steadfastly recognized the separation of the

International from its local affiliate.” (citing United Mine Workers v. Coronado

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Coal Co., 259 U.S. 344 (1922))). Similarly, Johnson’s title as Union shop

steward for a separate employer does not, without more, confer an agency

relationship for the purpose of the Exela organizing campaign. While an

alleged agent’s position as steward of the bargaining unit at issue can be

“probative,” Tyson Fresh Meats, Inc., 343 NLRB 1335, 1337 (2004), the Board

has not given such weight to an alleged agent’s position as shop steward for a

different employer. That is because an agency relationship must be established

with respect to the alleged agent’s duties and responsibilities implicating the

labor dispute at issue. Thus, the Board has rejected an employer’s assertion

that members of a union organizing committee were agents “simply by virtue

of such membership.” In re Cornell Forge, 339 NLRB at 733. More was

needed, such as service “as the primary conduits for communication

between the union and other employees” or “substantial[] involve[ment] in

the election campaign in the absence of union representatives.” Id.; see also

Tyson Fresh Meats, 343 NLRB at 1337 (finding union shop stewards were

agents where they held labor negotiations with the bargaining unit at issue).

Here, the record does not reflect that Johnson had any involvement

with the Exela organizing campaign. And Exela presented no evidence that

the Union otherwise vested Johnson with authority to organize an Exela

bargaining unit. But the record does support that Johnson was not an agent

of the Union. Brian Callow, a Union representative, testified that he and

Arturo Archila were the only people assigned to the Exela organizing

campaign. And Clifford Gray, an Exela employee, corroborated this

statement.5 The Board was justified in finding that Johnson did not have

5

Exela contends that the Board abused its discretion when it credited Gray’s

testimony because Gray was purportedly (1) “evasive” when testifying about Johnson’s

stewardship role with JLL, and (2) biased by the outcome of the election. Neither

contention has merit. The credibility findings of the Board are binding unless inherently

unreasonable or self-contradictory. See UNF W., 844 F.3d at 457. Because Exela does not

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actual authority to act on behalf of the Union with respect to the Exela

election.

As for apparent authority, the Regional Director concluded that no

evidence supported that the Union created a perception that Johnson acted

on its behalf with respect to the Exela bargaining unit. We agree.

“Apparent authority . . . results from a manifestation by a principal to

a third party that another is his agent.” Loc. 9341, Commc’ns Workers of Am.

(Pacific Bell), 304 NLRB 446, 446 n.4 (1991). “The test of agency in the

union election context is stringent, involving a demonstration that the union

placed the employee in a position where he appears to act as its

representative.” Con-way Freight, 838 F.3d at 538 (citation omitted). Even

where an employee “engages in ‘vocal and active’ support[,] [he] does not

become an agent on that basis alone.” Id. (citation omitted).

Exela contends that Johnson was a Union representative based on

Rodriguez’s testimony that she “overheard people talking that [Johnson] was

part of the Union.” She did not identify the individuals that she overheard.

Even assuming that Rodriguez’s testimony means that she was under the

impression that Johnson was a Union agent for the purpose of organizing an

Exela bargaining unit—which is not at all clear from her testimony that

Johnson was “part of the Union”—that impression must have resulted from

the Union.6 Rodriguez did not assert that her testimony was based on

manifestations of the Union. Thus, the Board was also justified in finding

explain how Gray’s testimony was “evasive” or why the election results would create bias,

there is no basis to disturb the Board’s credibility finding.

6

The parties dispute whether the Regional Director dismissed Rodriguez’s

testimony as hearsay under Federal Rule of Evidence 801(c) or considered it for its effect

on the listener. While the Regional Director found that the testimony was “based on [the]

hearsay statements of unidentified declarants,” he proceeded to consider the testimony for

its effect on Rodriguez. Thus, the dispute is not genuine.

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that Johnson lacked apparent authority to act on behalf of the Union with

respect to the Exela election.

Because Johnson was not an agent of the Union, substantial evidence

supports the Board’s overruling of Exela’s election objection.

B

Exela next contends that the Board abused its discretion when it

overruled Exela’s objection that two representatives of the Union stood near

the polling site shortly before the polls opened.

The record reflects that Karen Brewer, Exela’s Human Resources

Business Partner and representative, convened at the polling site with the

Union’s two representatives—Callow and Archila—for a pre-election

conference with the Board representative. According to Brewer, the Board

agent told the representatives to go “far away” before the polls opened at

10:00 a.m. When Brewer left the polling site at 9:58 a.m. or 9:59 a.m., she

observed Archila and Callow in the parking lot, approximately eighty feet

from the entrance to the polling site. Archila was wearing a Union jacket.

Callow testified that he smoked a cigarette and they left. The Board found

that Callow “may have only taken a minute or two” to smoke.

According to Exela, the presence of Callow and Archila in the parking

lot one or two minutes before the polls opened violated Milchem, Inc., 170

NLRB 362 (1968). There, the Board established the bright-line rule that

“prolonged conversations between representatives of any party to the

election and voters waiting to cast ballots is of sufficient concern to warrant

a strict rule against such conduct, without inquiry into the nature of the

conversations.” Id. at 362. But the prophylactic rule applies only “at the

polling place itself or while the employees [are] waiting in line.” Bos.

Insulated Wire & Cable Sys., Inc. v. NLRB, 703 F.2d 876, 881 (5th Cir. 1983).

Where those “precise factors are not present,” Milchem is inapplicable. Id.

Here, the record is devoid of evidence that Callow and Archila reentered the

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voting area or had conversations with eligible voters, much less prolonged

conversations. Exela does not claim that any voters were even present at the

polling site—whether in the parking lot, voting area, or in line to vote—at the

same time as the Union representatives. The Board reasonably concluded

that the conduct was not objectionable under Milchem.

In the alternative, Exela argues that the Union violated the Board’s

multi-factor test under Boston Insulated Wire & Cable Company, which asks

“whether the conduct, under the circumstances, ‘is sufficient to warrant an

inference that it interfered with the free choice of the voters.’” 259 NLRB

1118, 1118–19 (1982) (citation omitted), enforced, 703 F.2d 876 (5th Cir. 1983).

Four factors guide the analysis: (1) “whether the conduct occurred within or

near the polling place,” (2) “the extent and nature of the alleged

electioneering,” (3) “whether it [wa]s conducted by a party to the election

or by employees,” and (4) “whether the electioneering [wa]s conducted

within a designated ‘no electioneering’ area or contrary to the instructions of

the Board agent.” Id. at 1119 (internal citations omitted). The parties dispute

the first, second, and fourth factors.

As to the first factor, the record reflects that Callow and Archila stood

about eighty feet away from the election site, which the Hearing Officer

found was “far-removed” from the actual polling area. In C&G Heating &

Air Conditioning, Inc., the Board concluded that the presence of a

representative at a similar distance of seventy-seven feet away from the

entrance to the polling site did not, on its own, interfere with the free choice

of voters. 356 NLRB 1054, 1054–55 (2011). Thus, there is no basis to infer

that the presence of the Union representatives three feet farther away than

the agent in C&G Heating would interfere with voters’ free choice.

Both the second and fourth factors turn on the threshold finding that

the presence of the Union agents itself constitutes “electioneering.” Bos.

Insulated, 259 NLRB at 1119. Exela failed to present any evidence of

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No. 21-60426

electioneering. The record does not establish that the representatives

interacted with voters. Nor does the record reflect that any voters saw the

representatives. While the prolonged, unexplained presence of a union or

employer at the election site can be unlawful, the representatives in those

cases stood within the immediate vicinity of voters after the polls opened.

See, e.g., EDS-IDAB, Inc. v. NLRB, 666 F.2d 971, 975–76 (5th Cir. Unit B

1982) (pro-union employee sat seven to eight feet away from voters); Elec.

Hose & Rubber Co., 262 NLRB 186, 216 (1982) (employer was continuously

present ten to fifteen feet from the voting area). The mere presence of

representatives far outside the entrance to the polling place, absent evidence

of electioneering, is insufficient to warrant setting aside an election.

The Board was justified in overruling Exela’s election objection.

* * *

Because substantial evidence in the record supports the findings on

which the Board based its certification decision, there is no basis to set aside

the Board’s order concluding that Exela violated Sections 8(a)(1) and (5) of

the NLRA. We DENY Exela’s petition for review, and GRANT the

Board’s cross-petition for enforcement.

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