Ashland Facility Operations, LLC v. National Labor Relations Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ASHLAND FACILITY OPERATIONS, 

LLC, d/b/a Ashland Nursing &

Rehabilitation Center,

Petitioner,

v.

NATIONAL LABOR RELATIONS

BOARD,  No. 11-2004

Respondent,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400,

Intervenor.



NATIONAL LABOR RELATIONS 

BOARD,

Petitioner,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Local 400,

Intervenor,  No. 11-2132

v.

ASHLAND FACILITY OPERATIONS,

LLC, d/b/a Ashland Nursing &

Rehabilitation Center,

Respondent.



2 ASHLAND FACILITY OPERATIONS v. NLRB

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board.

(5-CA-60739)

Argued: September 20, 2012

Decided: December 14, 2012

Before KING, GREGORY, and WYNN, Circuit Judges.

Petition denied; enforcement granted by published opinion.

Judge Wynn wrote the opinion, in which Judge King and

Judge Gregory joined.

COUNSEL

ARGUED: James Phillip Naughton, HUNTON & WIL-

LIAMS, LLP, Norfolk, Virginia, for Ashland Facility Opera-

tions. Fred B. Jacob, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for the National Labor Relations

Board. John Andrew Durkalski, BUTSAVAGE & ASSO-

CIATES, PC, Washington, D.C., for United Food and Com-

mercial Workers International Union, Local 400. ON BRIEF:

Kimberlee W. DeWitt, HUNTON & WILLIAMS, LLP, Rich-

mond, Virginia, for Ashland Facility Operations. Lafe E. Sol-

omon, Acting General Counsel, Celeste J. Mattina, Deputy

General Counsel, John H. Ferguson, Associate General Coun-

sel, Linda Dreeben, Deputy Associate General Counsel, Ruth

E. Burdick, Supervisory Attorney, Heather S. Beard, Attor-

ney, NATIONAL LABOR RELATIONS BOARD, Washing-

ton, D.C., for the National Labor Relations Board.

ASHLAND FACILITY OPERATIONS v. NLRB 3

OPINION

WYNN, Circuit Judge:

Ashland Facility Operations, LLC ("Ashland Facility")

petitions for review of a National Labor Relations Board (the

"Labor Board") order that Ashland Facility cease and desist

from refusing to bargain with the United Food and Commer-

cial Workers International Union, Local 400 (the "Union"). In

a cross-application, the Labor Board requests enforcement of

its order.

On appeal, Ashland Facility contends that allegedly racially

inflammatory remarks by King Salim Khalfani, executive

director of the Virginia State Conference NAACP, under-

mined the validity of a representation election certifying the

Union as the exclusive bargaining representative of certain

Ashland Facility employees. The Labor Board, however,

found that neither Khalfani nor the Virginia NAACP was a

Union agent and that Khalfani’s remarks, made months before

the election, did not taint the results. Because we conclude

that the Union was properly certified, we deny Ashland Facil-

ity’s petition for review and enforce the Labor Board’s order.

I.

A.

Ashland Facility operates a 190-bed skilled nursing facility

north of Richmond, Virginia. On a Saturday evening in Feb-

ruary 2010, an African-American certified nursing assistant

("CNA") alleged that between $200 and $250 had been stolen

from her purse. Six members of the nursing crew, five of

whom were African-American and one of whom was Cauca-

sian, were paged to the nurses’ station by two supervising

nurses and forced to empty their purses so that their supervi-

sors could check for the missing money. The two supervisors

also told one nurse to remove her shoes and one or two others

4 ASHLAND FACILITY OPERATIONS v. NLRB

to remove their jackets. The following Monday, the nurses

met with Charles Nelson, Ashland Facility’s then-executive

director, to complain about their treatment. Nelson apolo-

gized, and the two supervisors who had initiated the search

were suspended and later terminated.

In late April 2010, Khalfani sent a letter to Nelson alleging

discriminatory treatment of Ashland Facility’s African-

American employees, specifically referencing the February

incident. On May 10, 2010, Khalfani held a press conference,

attended by about fifty members of the media, during which

he decried the treatment of the "Ashland Six," his moniker for

the six CNAs subjected to the search. J.A. 209. At the press

conference, some of the nurses claimed they were "targeted

because of their skin color, publicly and illegally strip-

searched, ridiculed and later harassed." J.A. 209. One of the

six nurses, Andrea Anderson, also claimed that during winter

snowstorms in early 2010, the nurses were told that they

could not leave the building and had to sleep on the floor and

get food from vending machines. Khalfani said Ashland

Facility’s employees had been treated like "chattel enslaved

captives," and that Ashland Facility was a "cesspool of inhu-

manity that needs to be told and fixed." J.A. 209. Khalfani’s

allegations were published on the front page of the May 12-

18, 2010 issue of the Richmond Voice, a weekly newspaper

circulated widely in Richmond, and in the monthly newsletter

of a local radio station. His claims were also broadcast on sev-

eral television and radio news programs in May and June

2010.

On the same day as the press conference, Khalfani emailed

three members of the Ashland Six to set up a meeting with

representatives of the Union. Khalfani introduced the nurses

to Ken Pinkard, a vice president of the Union and one of

thirty-two members of the Virginia NAACP’s executive

board. After June 2010, Khalfani did not provide any assis-

tance to the Union in its efforts to organize Ashland Facility’s

employees.

ASHLAND FACILITY OPERATIONS v. NLRB 5

B.

On September 21, 2010, the Union filed a petition to repre-

sent a bargaining unit of "[a]ll regular full-time and part-time

CNAs, restorative aides, activity aides, and maintenance

employees; Excluding all RNs, PRNs, dietary employees,

office clerical employees, confidential employees, and guards

and supervisors as defined in the Act." J.A. 575. This marked

the beginning of the so-called "critical period"—the time

between the filing of a representation petition and the repre-

sentation election. The parties subsequently agreed to hold the

election on November 3, 2010.

One Ashland Facility employee reported that after the peti-

tion was filed, she frequently heard other employees discuss-

ing the alleged strip search of the CNAs and the "slave-like

conditions" at Ashland Facility. J.A. 358-59. Another

employee said that in the time leading up to the election, there

were rumors that only the African-American nurses had been

"strip-searched," not the Caucasian nurse, and that Ashland

Facility was firing all of its African-American employees.

J.A. 133, 135. Other employees often discussed "call[ing] the

NAACP" and "get[ting] the Union in so it would be fair for

everybody." J.A. 133. None of the witnesses identified who

initially made or repeated these statements.

Greg Ashley, who succeeded Nelson as Ashland Facility’s

executive director, held eighteen meetings and had "numerous

conversations" with the nursing staff in the weeks leading up

to the election. J.A. 146. He held the meetings "specifically

to talk about why [he] didn’t feel the Union would be in their

best interest and how [he] could solve whatever issues were

at hand." Id. Ashley said that during the meetings, employees

frequently raised concerns about the alleged strip search, the

treatment of staff during the snowstorms, and discriminatory

treatment of African-American employees.

The Union requested that Elizabeth Waddy, president of

the Hanover County NAACP, draft a letter endorsing the

6 ASHLAND FACILITY OPERATIONS v. NLRB

Union. On October 27, 2010, approximately one week before

the election, Waddy sent a brief letter to Ashland Facility

employees stating, "Dear Health Care Caregivers: The Hano-

ver County Branch of the NAACP supports [the Union] in

representing the Caregivers at Consulate Health Care [Ash-

land Facility], Ashland, Virginia. VOTE YES!!" J.A. 206. As

planned, the Labor Board held a secret-ballot election on

November 3, in which 31 votes were cast for, and 28 were

cast against, the Union.

C.

Ashland Facility filed objections to the election, alleging in

particular that "[t]he Union’s campaign was based in whole or

in substantial part on unlawful appeals to racial prejudice."*

J.A. 2. Following a hearing, an administrative law judge

("ALJ") overruled Ashland Facility’s objections and certified

the Union as the exclusive bargaining representative of the

named bargaining unit. The Labor Board subsequently

affirmed the ALJ’s recommendation. On June 6, 2011, the

Union sent a letter to Ashland Facility requesting that it bar-

gain collectively with the Union about the terms and condi-

tions of employment of Ashland Facility’s workers. In

response, Ashland Facility stated it believed that the Novem-

ber 2010 election was invalid and, consequently, refused to

bargain.

The Union filed a charge against Ashland Facility on June

30, 2011, asking the Labor Board to compel Ashland Facility

to negotiate. Two weeks later, the Labor Board’s Acting Gen-

eral Counsel issued a complaint against Ashland Facility,

alleging that it had engaged in unfair labor practices in viola-

tion of the National Labor Relations Act (the "Act"). See 29

*Ashland Facility also charged that the Union engaged in unlawful

election-day conduct and that "the election was tainted by improper, pro-

union supervisor conduct." J.A. 2-3. Neither of these claims is at issue on

appeal.

ASHLAND FACILITY OPERATIONS v. NLRB 7

U.S.C. § 158(a)(1), (a)(5). Ashland Facility admitted that it

had refused to bargain with the Union, but claimed it was not

obligated to do so because the election "was invalid and

fatally tainted by the Union’s misconduct." J.A. 723. The Act-

ing General Counsel then filed a Motion for Summary Judg-

ment on grounds that Ashland Facility did not present any

evidence or assert issues other than those already litigated in

prior proceedings. On September 16, 2011, the Labor Board

granted the motion and ordered, inter alia, Ashland Facility to

bargain with the Union.

Ashland Facility petitioned this Court for review, arguing

that the Labor Board should have set aside the results of the

representation election because it was improperly tainted by

Khalfani’s allegedly racially inflammatory comments. In par-

ticular, Ashland Facility maintains that the Labor Board erro-

neously held the Virginia NAACP was not an agent of the

Union; failed to apply the appropriate legal standard for

reviewing results of elections tainted by improper, racially

inflammatory comments; and mistakenly found Khalfani’s

prepetition comments were unrelated to improper conduct

occurring during the critical period. The Labor Board, in turn,

filed a cross-application for enforcement of its order.

II.

The results of a union representation election supervised by

the Labor Board are "presumptively valid." NLRB v. Flam-

beau Airmold Corp., 178 F.3d 705, 707 (4th Cir. 1999). The

Labor Board’s factual determinations are "conclusive" if they

are "supported by substantial evidence on the record consid-

ered as a whole." 29 U.S.C. § 160(f); see also Sam’s Club, a

Div. of Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233, 239 (4th

Cir. 1999). In reviewing mixed questions of law and fact, "the

[Labor] Board’s application of legitimate legal interpretations

to the facts of a particular case should be upheld if they are

supported by substantial evidence based upon the record as a

whole." Sam’s Club, 173 F.3d at 239. "Substantial evidence

8 ASHLAND FACILITY OPERATIONS v. NLRB

is ‘more than a scintilla’ but ‘less than a preponderance’ of

evidence." Id. (quoting Richardson v. Perales, 402 U.S. 389,

401 (1971)).

A union representation election should be conducted in a

metaphorical "laboratory in which an experiment may be con-

ducted, under conditions as nearly ideal as possible, to deter-

mine the uninhibited desires of the employees." General Shoe

Corp., 77 NLRB 124, 127 (1948). That being said, it has long

been recognized that representation elections are "heated

affair[s]" and, consequently, an election will not be set aside

"unless an atmosphere of fear and coercion rendered free

choice impossible." NLRB v. Herbert Halperin Distrib. Corp.,

826 F.2d 287, 290 (4th Cir. 1987).

A.

Ashland Facility first argues that the Virginia NAACP was

an actual or apparent agent or "close ally" of the Union when

Khalfani made the allegedly inflammatory statements, and

thus the Labor Board should have scrutinized the election

results more closely. Whether the Virginia NAACP was an

agent of the Union is significant because "[l]ess weight is

accorded the comments and conduct of third parties than to

those of the employer or union" since "third parties are not

subject to the deterrent of having an election set aside, and

third party statements do not have the institutional force of

statements made by the employer or the union." Herbert Hal-

perin, 826 F.2d at 290.

Conduct by a union or its agents can be a basis for setting

aside an election "when threats, acts of coercion, or other

improprieties occurred and ‘materially affected the election

results.’" NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 442 (4th

Cir. 2002) (quoting Herbert Halperin, 826 F.2d at 290). By

contrast, third-party conduct provides a basis for invalidating

an election "only if the election was held in a general atmo-

sphere of confusion, violence, and threats of violence, such as

ASHLAND FACILITY OPERATIONS v. NLRB 9

might reasonably be expected to generate anxiety and fear of

reprisal, to render impossible a rational uncoerced expression

of choice as to bargaining representation." Herbert Halperin,

826 F.2d at 290 (quotation omitted).

Generally, whether an agency relationship exists is a fac-

tual determination. Metco Prods., Inc. v. NLRB, 884 F.2d 156,

159 (4th Cir. 1989). Therefore, a finding by the Labor Board

that an agency relationship does not exist "will not be dis-

turbed on appeal if supported by substantial evidence on the

record as a whole." Id. (citations omitted).

This Court determines whether an agency relationship

exists according to the common law of agency. Id. Actual

agency exists "when, at the time of taking action that has legal

consequences for the principal, the agent reasonably believes,

in accordance with the principal’s manifestations to the agent,

that the principal wishes the agent so to act." Restatement

(Third) of Agency § 2.01 (2006). A putative agent has appar-

ent authority "when a third party reasonably believes the actor

has authority to act on behalf of the principal and that belief

is traceable to the principal’s manifestations." Id. § 2.03. In

the context of labor representation elections, the final inquiry

into agency "is always whether the amount of association

between the Union and [a third party] is significant enough to

justify charging the Union with the conduct." PPG Industs.,

Inc. v. NLRB, 671 F.2d 817, 822 n.8 (4th Cir. 1982).

Ashland Facility does not argue that the Union expressly

authorized the Virginia NAACP or Khalfani to act as its agent

for purposes of the organizing campaign. Instead, it contends

that the Virginia NAACP was an apparent agent of the Union.

In support of this proposition, Ashland Facility primarily

relies on our decision in Kentucky Tennessee Clay Company.

In that case, we found two employees were apparent agents

of a union when "professional union organizers had delegated

a number of specific organizing tasks to the unpaid employee

10 ASHLAND FACILITY OPERATIONS v. NLRB

organizers, including having the authorization cards signed by

the other employees, talking with the employees about the

union both in the plant and outside the plant, distributing

union literature, and helping to plan union meetings. . . .

[T]hese employees were the union’s only in-plant contact

with the other employees." Ky. Tenn. Clay Co., 295 F.3d at

444. In fact, the Court found hardly "any participation what-

soever" by the union official responsible for overseeing the

organizing campaign, whereas the putative agent employees

"were instrumental in every step of the campaign process." Id.

at 443, 445.

In its brief, Ashland Facility highlights what it contends

constitutes evidence of a close relationship between the Union

and the Virginia NAACP. For example, Ashland Facility

notes that Khalfani helped arrange the initial meeting between

members of the Ashland Six and the Union; Union Vice Pres-

ident Pinkard was also a member of the Virginia NAACP’s

thirty-two-member executive board; and Hanover County

NAACP President Waddy sent a letter to employees endors-

ing the Union. However, this evidence falls far short of show-

ing that the Virginia NAACP was "instrumental in every step

of the campaign process." Id. at 443.

Indeed, Kentucky Tennessee Clay Company can readily be

distinguished in a number of ways. Whereas the apparent

agents in Kentucky Tennessee Clay Company were actively

involved in the organizing campaign throughout the precerti-

fication campaign and critical period, id. at 443, Khalfani had

no involvement in the campaign after June 2010, more than

two months before the start of the critical period. In the Ken-

tucky Tennessee Clay Company organizing campaign, the one

union official was only "minim[ally] involve[d]," id. at 445,

whereas here, the Union had three employees who were

actively involved in the organizing campaign, ran all organiz-

ing meetings, and called employees to discuss the Union. This

is an ample factual basis to support the Labor Board’s finding

that the Virginia NAACP was not the Union’s agent.

ASHLAND FACILITY OPERATIONS v. NLRB 11

B.

Next, Ashland Facility argues that even if the Virginia

NAACP is not an agent of the Union, the Labor Board erred

in not subjecting the election results to heightened scrutiny

because Khalfani’s comments were racially inflammatory. In

particular, Ashland Facility contends that the Labor Board

should have applied the standard of review set out in Sewell

Manufacturing Company, 138 NLRB 66 (1962), which held

that when a party to an election "deliberately seek[s] to overs-

tress and exacerbate racial feelings by irrelevant, inflamma-

tory appeals," the party making such appeals bears the burden

of showing they are "truthful and germane" to the election. Id.

at 72. But Sewell is inapplicable for two reasons: (1) Khal-

fani’s comments were not "inflammatory" appeals to racial

prejudice and (2) Sewell does not govern appeals to racial

prejudice made by third-parties.

First, the Sewell standard applies only if an appeal to racial

sentiment is "inflammatory." Case Farms of N.C., Inc. v.

NLRB, 128 F.3d 841, 845 (4th Cir. 1997). An appeal to preju-

dice is inflammatory if it "can have no purpose except to

inflame the racial feelings of voters in the election." Id. (quot-

ing Englewood Hospital, 318 NLRB 806, 807 (1995)). The

limitation of Sewell to irrelevant appeals to racial prejudice

stems from the recognition that "matters of race and ethnicity

will often be important to a representation campaign." Id.; see

also NLRB v. Baltimore Luggage Co., 387 F.2d 744, 747-48

(4th Cir. 1967). Consequently, while "[a]ttempts to portray an

employer as bigoted have . . . been found to be inflammatory

in certain extreme cases," in general, appeals to racial preju-

dice will not be a basis for overturning an election so long as

they are made in the context of an effort to raise workplace

grievances or other issues of legitimate concern to employees.

Case Farms, 387 F.3d at 846.

Under this standard, this Court, on a number of occasions,

has refused to vitiate the results of an otherwise valid repre-

12 ASHLAND FACILITY OPERATIONS v. NLRB

sentation election in cases where entities advocating unioniza-

tion raised race and ethnicity as part of a campaign focused

on legitimate concerns of workers. For example, Case Farms

involved an organizing campaign at a poultry processing

plant, during which the union circulated fliers suggesting that

the company had replaced Amish workers at another plant

with Latino workers "[b]ecause they could pay Latinos less

and treat them worse." Id. at 843. We rejected Case Farm’s

petition to overturn the election certifying the union on

grounds that the flier was an improper appeal to racial preju-

dice, stating that the fliers reflected the primary issues of the

organizing campaign: "wages and working conditions." Id. at

849. Similarly, in Herbert Halperin, this Court found that the

use of racial epithets, apparently by an African-American

employee, during the course of a representation campaign was

not a basis to overturn the election where the comments were

made in the context of complaints about wages and working

conditions. 826 F.2d at 293. Finally, during the representation

election at issue in Baltimore Luggage, the NAACP distrib-

uted a letter to the largely African-American workforce

endorsing the union and noting that the union had assisted the

NAACP "in our civil rights struggles." 387 F.2d at 745. We

held that the NAACP’s endorsement was not a basis to invali-

date the election, noting that "it is highly pertinent for the pre-

dominantly Negro electorate to be told of the NAACP’s

support of the Union and the advantages which unionization

and union tactics, and particularly this Union’s favorable atti-

tude, have secured for Negroes." Id. at 747-48.

When viewed in light of this precedent, Khalfani’s com-

ments fall short of being "inflammatory." Although Khal-

fani’s comments appealed to matters of race, they were not

inflammatory because they were made in the context of rais-

ing legitimate concerns about the working conditions of

CNAs at Ashland Facility-including the search of the so-

called Ashland Six and the treatment of employees during the

snowstorms.

ASHLAND FACILITY OPERATIONS v. NLRB 13

Second, even assuming arguendo that Khalfani’s comments

were "inflammatory," Ashland Facility still must overcome

the fact that, to date, this Court has only applied Sewell in

cases in which such comments were made by a party to the

election. See, e.g., Case Farms, 128 F.3d at 845-46. The Vir-

ginia NAACP was not a party to the election but was, instead,

a third party. In fact, there is some confusion in this Circuit

regarding the appropriate level of scrutiny for elections poten-

tially tainted by inflammatory third-party appeals to racial

prejudice. Compare Flambeau Airmold, 178 F.3d at 708

(majority opinion) (asserting that the Herbert Halperin Court

applied the level of scrutiny used for improper third-party

election conduct to third-party appeals to prejudice), with id.

at 713 (Niemeyer, J., dissenting) (noting that this Court did

not find appeals to racial prejudice to be "inflammatory" in

Herbert Halperin and thus did not set out appropriate stan-

dard for "inflammatory" appeals to prejudice).

Our sister Circuits have not adopted a uniform approach to

reviewing representation elections potentially tainted by

inflammatory third-party appeals to racial prejudice. In partic-

ular, there is confusion as to whether, and to what extent,

Sewell applies in such cases. See NLRB v. Foundry Div. of

Alcon Indus., Inc., 260 F.3d 631, 635 n.6 (6th Cir. 2001). The

Seventh Circuit has suggested that Sewell applies to third-

party racially inflammatory comments, finding that such

remarks require invalidation of an election if "the inflamma-

tory remarks could have impaired the employees’ freedom of

choice in the subsequent election." NLRB v. Katz, 701 F.2d

703, 706-07 (7th Cir. 1983).

By contrast, the Ninth and Eleventh Circuits elected not to

extend Sewell to inflammatory third-party appeals to racial

prejudice, instead analogizing such appeals to threats and

other coercive conduct by third-parties. See Did Bldg. Servs.,

Inc. v. NLRB, 915 F.2d 490, 497-98 (9th Cir. 1990); M & M

Supermarkets, Inc. v. NLRB, 818 F.2d 1567, 1572-73 (11th

Cir. 1987). Under this approach, an election must be invali-

14 ASHLAND FACILITY OPERATIONS v. NLRB

dated only if a third-party’s "appeal to prejudice . . . so taint-

[ed] the election atmosphere as to render free choice of

representation impossible." Did Bldg. Servs., 915 F.2d at 498;

see also M & M Supermarkets, 818 F.2d at 1572-73 (holding

that third-party appeals to racial prejudice warrant invalida-

tion of an election if they "destroyed the atmosphere neces-

sary to the exercise of a free choice in the representation

election" (quotations omitted)).

We agree with the Ninth and Eleventh Circuits and decline

to extend Sewell to racially inflammatory comments made by

third-parties. The Sewell burden-shifting approach is poorly

suited to third-party appeals to prejudice for two reasons.

First, as the Ninth Circuit correctly explained in Did Building

Services, "parties cannot prevent supporters’ misconduct, so

. . . attaching the same weight to third-party and party actions

would lead to endless and pointless repetitions of elections."

915 F.2d at 498 (internal quotation omitted). In fact,

"[b]ecause it would be impossible to know which side a third

party favored, secretly pro-company employees could spread

inflammatory rumors favorable to the union, thus invalidating

the union’s anticipated victory, and vice versa." Flambeau

Airmold, 178 F.3d at 713 (Niemeyer, J., dissenting). Second,

were we to apply the Sewell burden-shifting approach, it

would create the absurd result that a party would bear the bur-

den of defending the veracity and relevance of comments

made by an entity not party to the case and for which it was

not responsible.

We also find the Ninth and Eleventh Circuits’ analogy to

third-party coercive conduct persuasive. This approach appro-

priately balances the need to minimize irrelevant appeals to

racial prejudice in representation elections with our long-

established position that third-party actions should be

accorded less weight in determining whether an election

should be invalidated. This Court sets aside a representation

election based on third-party threats or other coercive conduct

if the conduct "render[ed] impossible a rational, uncoerced

ASHLAND FACILITY OPERATIONS v. NLRB 15

expression of choice." Herbert Halperin, 826 F.2d at 290

(quotation omitted). Therefore, we hold that an inflammatory

third-party appeal to racial prejudice is the basis for invalidat-

ing a representation election only if the appeal made a ratio-

nal, uncoerced expression of free choice impossible.

Under this standard, Ashland Facility has failed to make a

sufficient showing to invalidate the election. The record

includes no evidence that Khalfani’s comments, made months

before the election, rendered it impossible for employees to

freely decide whether to certify the Union as their exclusive

bargaining agent. Moreover, to the extent that Khalfani’s

comments may have caused confusion, Ashland Facility had

ample opportunity to address this confusion and set the record

straight at the eighteen meetings it held with employees dur-

ing the critical period.

C.

Even assuming arguendo that Khalfani’s comments are a

potential basis for overturning the election, Ashland Facility

still must overcome the fact that the comments were made

prior to the critical period. Generally, the Labor Board "will

not consider instances of prepetition conduct as a basis upon

which to set aside an election." Dresser Indus. Inc., 242

NLRB 74, 74 (1979). However, improper conduct occurring

before the critical period may be considered when "such con-

duct adds meaning and dimension to related postpetition con-

duct." Id. Under this standard, prepetition conduct may be

considered when it is of a similar nature to objectionable con-

duct that occurs during the critical period.

For example, in In re BCI Coca-Cola Bottling Co., 339

NLRB 67 (2003), the Labor Board found that an employer’s

prepetition threats to eliminate its 401(k) program if employ-

ees joined a union were relevant when the employer made

similar threats regarding the 401(k) program during the criti-

cal period. Id. at 67-68. Similarly, in Dresser the Labor Board

16 ASHLAND FACILITY OPERATIONS v. NLRB

set aside the results of a representation election where an

employer interrogated and threatened employees in the prepe-

tition period and then engaged in similar misconduct only a

few days before the election. 242 NLRB at 74-75.

Here, Ashland Facility fails to identify any conduct occur-

ring during the critical period similar to the inflammatory

comments made by Khalfani prior to certification. Although

rumors circulated amongst Ashland Facility’s employees

regarding the Ashland Six and the treatment of employees

during the snowstorms, there is no evidence that these rumors

are attributable to the Union or its agents. See Brightview

Care Center, 292 NLRB 352, 352-53 (1989) (holding that

"isolated remarks made by unidentified employees, apparently

in the course of casual conversations among employees," did

not provide an adequate basis for setting aside a representa-

tion election).

Ashland Facility also contends Hanover NAACP President

Waddy’s letter endorsing the Union constitutes critical period

conduct related to Khalfani’s prepetition statements. Although

the ALJ found that Waddy was a Union agent in drafting the

letter, the brief letter states simply that the Hanover NAACP

supports the Union, does not reference Khalfani’s comments,

and lacks any appeal to racial prejudice. Therefore, the Labor

Board correctly found that even if the Virginia NAACP had

been an agent of the Union, Khalfani’s prepetition statements

did not provide a basis for setting aside the election.

III.

In its brief, Ashland Facility also maintains that it was

denied due process of law because the ALJ improperly lim-

ited the temporal scope of Ashland Facility’s subpoena to the

Virginia NAACP and failed to enforce the subpoena sua

sponte before certifying the election. This argument is without

merit.

ASHLAND FACILITY OPERATIONS v. NLRB 17

The Act provides that hearings conducted before the Labor

Board, and ALJs as delegatees of the Labor Board, "shall, so

far as practicable, be conducted in accordance with the rules

of evidence applicable in the district courts . . . ." 29 U.S.C.

§ 160(b). In this Circuit, district courts "enjoy nearly unfet-

tered discretion to control the timing and scope of discovery

. . . ." Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 426

(4th Cir. 1996).

Here, the ALJ limited the scope of Ashland Facility’s sub-

poena duces tecum on the Virginia NAACP to records from

the critical period. Given the latitude afforded to lower courts

on discovery issues and the limited role prepetition conduct

plays in assessing the validity of a representation election, the

restriction was not improper.

Moreover, while the Act empowers the Labor Board to

seek court aid in enforcing its discovery orders, 29 U.S.C.

§ 161(2), there is no requirement that an ALJ enforce such an

order sua sponte, see Skyline Builders, Inc., 340 NLRB 109,

109 (2003) (when a party does not seek judicial enforcement

of its subpoena, a judge is "under no obligation to continue

the hearing or to seek enforcement of the subpoena sua

sponte").

On December 16, 2010, the ALJ closed the record subject

to reopening if Ashland Facility obtained further "material"

evidence. J.A. 375-76. At that time, the ALJ said that Ashland

Facility should contact him within a week if it had any addi-

tional evidence to add to the record before he rendered his

decision. Ashland Facility did not request enforcement of its

subpoena to the Virginia NAACP and failed to contact the

ALJ within the required timeframe. Under these circum-

stances, it was within the ALJ’s sound discretion to move for-

ward with his decision to certify the election.

IV.

For the foregoing reasons, Ashland Facility’s petition is

denied, and the decision of the Labor Board is enforced.

18 ASHLAND FACILITY OPERATIONS v. NLRB

No. 11-2004 PETITION DENIED

No. 11-2132 ENFORCEMENT GRANTED