Valcourt Building Services, Inc. v. National Labor Relations Board , 142 F. App'x 668 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2300
VALCOURT BUILDING SERVICES, INC., which also
may be correctly and legally known as VALCOURT
EXTERIOR BUILDING SERVICES OF NEW JERSEY, LC,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
PAINTERS DISTRICT COUNCIL 711,
Intervenor.
04-2459
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
PAINTERS DISTRICT COUNCIL 711,
Intervenor,
versus
VALCOURT EXTERIOR BUILDING SERVICES OF NEW
JERSEY, LC,
Respondent.
On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (22-CA-26491; 99-CA-
26491)
Argued: May 24, 2005 Decided: June 24, 2005
Before WIDENER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: James Joseph Kelley, II, MORGAN, LEWIS & BOCKIUS, L.L.P.,
Washington, D.C., for Valcourt Exterior Building Services of New
Jersey, L.C. Jason Walta, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board. Robert F. O’Brien, O’BRIEN,
BELLAND & BUSHINSKY, L.L.C., Northfield, New Jersey, for Painters
District Council 711. ON BRIEF: Adrienne A. Brown, MORGAN, LEWIS
& BOCKIUS, L.L.P., Washington, D.C., for Valcourt Exterior Building
Services of New Jersey, L.C. Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, David Habenstreit, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Valcourt Building Services, Inc. petitions for review of an
order of the National Labor Relations Board (NLRB). The NLRB
cross-appeals, seeking enforcement of its order. For the reasons
that follow, we deny Valcourt’s petition for review and grant the
NLRB’s cross-application for enforcement of its order.
I.
On October 8, 2003, a group of Valcourt employees voted 28-21
(with four challenged ballots going uncounted) to be represented by
the Painters District Council 711 (the Union).
Prior to the election, Valcourt and the Union had entered into
an agreement, which provided in relevant part that: “Each party
may station an equal number of authorized, nonsupervisory-employee
observers at the polling places to assist in the election, to
challenge the eligibility of voters, and to verify the tally.”
Regarding election observers, the NLRB Casehandling Manual (CHM)
states: “Observers should be employees of the employer, unless a
party’s use of an observer who is not a current employee of the
employer is reasonable under the circumstances. A supervisor
should not serve as an observer.” NLRB Casehandling Manual, pt. 2,
Representation Proceedings § 11310.2 (1999) (citations omitted),
available at http://www.nlrb.gov/nlrb/legal/manuals/chm2-7.pdf.
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Valcourt designated Carlos Guevara, an employee, to serve as
its election observer. The Union, however, designated as its
observer William Geldhauser, a retired union member, who had never
worked for the company but had previously served as a business
agent of the Union. Following the election, Valcourt filed
objections with the NLRB Regional Director, asserting that the
service of Geldhauser as the Union’s designated observer and use by
Geldhauser of a “private, non-NLRB check list during the course of
the election” improperly interfered with the election. The Union
intervened in the case.
On November 17 and 19, 2003, an NLRB hearing officer heard
testimony from numerous witnesses on Valcourt’s objections. At
that hearing, Peter Cipparulo, the Union’s director of organizing,
testified that he tried to find a Valcourt employee to serve as the
Union’s observer, but “nobody would” do it because “they were
scared to come forward.” Thus, several days before the election,
Cipparulo called Geldhauser and asked him to serve as the Union’s
observer. “I wanted somebody that was not affiliated with the
Union,” he said. “I wanted somebody that didn’t speak Spanish, so
that there wasn’t any concern did he communicate with them. And I
tried to make it as far removed from the Union as I could and had
no ties to the Union outside of being a previous member.”
Cipparulo further testified that the primary reason he wanted
an observer at the election was to challenge four specific ballots.
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Geldhauser’s testimony corroborated this explanation. Geldhauser
testified that he brought with him to the election a “four-inch by
four-inch piece of paper” on which he had written the names of four
people whom Cipparulo had asked him to challenge. Valcourt
witnesses disputed Geldhauser’s description of his list as
inconspicuous, and further contended that the list was clearly
visible to voters in the election.
On January 8, 2004, the hearing officer issued a lengthy and
thorough report, recommending that Valcourt’s objections be
overruled. The hearing officer found that Geldhauser “testified in
a forthright manner” and was a “far more credible witness than the
five employee witnesses called” by Valcourt, who “repeatedly
contradicted themselves.” The hearing officer determined that
“none of the voters recognized Geldhauser or anticipated that he
would ever be in a position to influence their terms or conditions
of employment.” With respect to Geldhauser’s list, the hearing
officer further found:
Geldhauser maintained a handwritten list of four voters
he intended to challenge. He did not check off the names
of voters, record their names, or make comments about the
voters. There is no evidence that Geldhauser knew which
voters supported the Union, which voters did not, or
which voters (if any) had documentation problems
pertaining to their immigration status. Further, he
endeavored to conceal his private list by keeping it
under the table, as directed by Board agents . . . .
The record reflects that these efforts were largely
successful. For this reason, most witnesses were unable
to describe Geldhauser’s list or estimate the number of
names it contained. In fact, all five employee witnesses
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admitted that they never saw any of the names on the
list.
J.A. 292-93 (footnote omitted). After Valcourt filed exceptions to
the report, the Board adopted the hearing officer’s findings and
recommendations and certified the Union as the “exclusive
collective-bargaining representative of . . . [a]ll restoration
division mechanics including foremen and drivers employed by
[Valcourt].”
Following efforts by the Union to bargain with Valcourt, and
Valcourt’s refusal to recognize the Union as the representative of
its employees, the General Counsel of the NLRB filed suit against
Valcourt for violating Sections 8(a)(1) and (5) of the National
Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(1), (5) (2000). On
September 30, 2004, the Board granted the General Counsel’s motion
for summary judgment and ordered Valcourt to bargain with the
Union. Valcourt then filed this petition for review and the NLRB
filed a cross-application for enforcement of the Board’s order.
II.
The issue presented to us is whether the Board abused its
discretion in certifying the Union as the duly elected collective
bargaining representative and therefore erred in finding Valcourt
to have violated §§ 8(a)(1) and (5) of the NLRA. We “presume a
Board-supervised election to be valid, and . . . may overturn such
an election only if the Board has clearly abused its discretion.”
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NLRB v. Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir.
2004). We have explained that the presumption of validity of
Board-certified elections:
is not an insubstantial presumption; it can be overcome
only by presentation of specific evidence not only that
the alleged acts of interference occurred but also that
such acts sufficiently inhibited the free choice of
employees as to affect materially the results of the
election. And the burden is on . . . the objecting
party, to show that the challenged activity prejudiced
the outcome of the election. Significantly, if the
Board’s certification decision is reasonable and based on
substantial evidence in the record as a whole, then our
inquiry is at an end. Given this rigorous standard,
courts appropriately proceed with judicial caution before
overturning a representation election.
NLRB v. VSA, Inc., 24 F.3d 588, 591-92 (4th Cir. 1994) (internal
quotation marks and citations omitted).
Valcourt specifically disclaims any challenge to the “factual
and credibility determinations” made by the hearing officer and
adopted by the Board. Rather, the company contends only that
certain alleged legal errors, either “alone” or “in the aggregate”
require “setting aside the election.”
A.
First, Valcourt challenges the service of Geldhauser, a non-
employee and former Union business agent, as the designated Union
observer. Valcourt asserts that, because the designation of
Geldhauser assertedly violates the CHM and the stipulated election
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agreement, we must set aside the election. The argument is
meritless.
We note at the outset that it is not at all clear that the
designation of Geldhauser violates either the CHM or the stipulated
agreement. The CHM merely provides that “[o]bservers should be
employees of the employer, unless a party’s use of an observer who
is not a current employee of the employer is reasonable under the
circumstances.” NLRB Casehandling Manual, supra, § 11310.2
(emphases added). Here, Cipparulo provided a reasonable
explanation for the use of Geldhauser: the Union could find no
Valcourt employee to serve as the Union’s observer, since “the[]
[employees] were scared to come forward.” Similarly, the
stipulated agreement simply permits each party to designate
“nonsupervisory-employee observers.” At the very least, this
phrase is ambiguous: it could, as Valcourt contends, require that
observers be employees who are not supervisory employees, or it
could simply ban the use of supervisory employees as observers.
Furthermore, even if the Union’s designation of Geldhauser did
violate the CHM and the stipulated agreement, this minor
irregularity does not require invalidation of the election.
Indeed, the authority on which Valcourt itself relies directly
supports our conclusion. For example, in NLRB v. Black Bull
Carting Inc., 29 F.3d 44 (2d Cir. 1994), the court refused to
overturn a representation election even though a union official
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served as the union’s election observer and the CHM in effect at
the time did require that observers be “‘non-supervisory employees
of the employer, unless a written agreement’ by the parties
‘provides otherwise.’” Id. at 45-46. The Second Circuit
explained:
A party seeking to overturn an election on the ground of
a procedural irregularity has a heavy burden. The
presence of such an irregularity is not in itself
sufficient to overturn an election. Nor is it sufficient
for a party to show merely a ‘possibility’ that the
election was unfair. Rather, the challenger must come
forward with evidence of actual prejudice resulting from
the challenged circumstances.
Id. at 46 (citations omitted). Similarly, another decision relied
on by Valcourt, D.E.O. Enters., Inc., 309 NLRB 578, 579 (1992),
holds that even though use of a former supervisor-employee as a
union election observer constituted “a technical breach of the
Stipulated Election Agreement,” the breach did not require that the
election be overturned because “the breach was neither material nor
made in bad faith.”
B.
Valcourt also argues that Geldhauser’s maintenance of an
assertedly impermissible list constitutes ground for setting aside
the election. Valcourt bases this argument on a purported “per se
rule against list keeping of any kind during an election.”
However, no such rule exists. Again, even the authority relied on
by Valcourt contradicts its position. See Days Inn Mgmt. Co. v.
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NLRB, 930 F.2d 211, 214 (2d Cir. 1991) (holding that “use of a list
containing names of eligible voters must be viewed in its context
and may not be considered a per se violation of Section 8(a)(1)”).
Furthermore, the Board has specifically ruled that use of a
list for the purpose of keeping track of voter challenges is
permitted. As the Board has explained:
It is well established that the keeping of a list of who
has or has not voted, aside from the official Excelsior
list, may be grounds for setting aside an election. The
purpose of this prohibition is to protect employees from
fear of reprisal or discipline because they did or did
not vote. However, the Board has long recognized the
right to refer to a challenge list as an exception to the
general prohibition against keeping lists, in order to
ensure that the parties have a full opportunity to
challenge the ballots of voters they believe to be
ineligible.
Mead Coated Board, Inc., 337 NLRB 497, 497-98 (2002) (citations
omitted); see also St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d
1436, 1443-44 (9th Cir. 1983); Sound Refining, Inc., 267 NLRB
1301, 1301 & n.5 (1983).*
In this case, the hearing officer found that “Geldhauser
maintained a handwritten list of four voters he intended to
challenge” and that “none of the voters recognized Geldhauser or
anticipated that he would ever be in a position to influence their
terms or conditions of employment.” This finding is hardly clearly
*
Valcourt also points to the CHM in support of its argument
that Geldhauser’s list was unauthorized. However, the CHM
specifically provides that “[o]bservers may bring to the election
lists of employees they intend to challenge.” NLRB Casehandling
Manual, supra, § 11312.4.
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erroneous; indeed, Valcourt does not so assert. Accordingly,
Geldhauser’s list cannot constitute grounds for overturning the
election.
C.
Valcourt additionally argues that the “special nature” of the
bargaining unit warrants particularly strict adherence to election
procedures. Apparently, Valcourt maintains that because Hispanic
workers predominate its workforce, “most [of whom] do not speak or
understand English,” extra scrutiny should be given to the election
procedures.
This argument also fails. First, any irregularities that
existed were minor and not “sufficient to overturn [the] election.”
Black Bull Carting Inc., 29 F.3d at 46. Valcourt has not presented
any compelling evidence of “actual prejudice resulting from the
challenged circumstances.” Id. Further, Valcourt has not cited
any cases in support of overturning a representation election due
to the ethnicity, origin, or language skills of the bargaining
unit. The case on which Valcourt primarily relies does not apply
here. See Robert Orr-Sysco Food Servs., LLC, 338 NLRB 614 (2002)
(overturning election in part because one employee threatened
another with deportation). Moreover, as the NLRB points out,
Valcourt presented “no evidence . . . at the hearing” (other than
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the fact that many of Valcourt’s employees are Hispanic immigrants)
to support this claim.
D.
Finally, Valcourt asserts that the alleged errors discussed
herein “in the aggregate” warrant setting aside the election. We
disagree. The minor procedural irregularities challenged here do
not, even in combination, meet the heavy burden necessary to
overturn a Board-certified election.
III.
For the foregoing reasons, Valcourt’s petition for review is
denied and the Board’s cross-application for enforcement is
granted.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
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