Mail Contractors of America, Inc. v. National Labor Relations Board ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2502
MAIL CONTRACTORS OF AMERICA, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
TEAMSTERS LOCAL 470,
Intervenor.
No. 04-1050
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
MAIL CONTRACTORS OF AMERICA, INCORPORATED,
Respondent.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (4-CA-32337)
Submitted: September 23, 2004 Decided: February 15, 2005
Before WIDENER, KING, and DUNCAN, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished opinion. Judge Duncan wrote the majority
opinion, in which Judge King concurred. Judge Widener wrote a
separate opinion concurring in the result.
Jeffrey W. Pagano, Jonathan A. Moskowitz, Herbert I. Meyer, KING,
PAGANO & HARRISON, New York, New York, for Mail Contractors of
America, Inc. 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, Fred L. Cornnell, Supervisory Attorney, Christopher W.
Young, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the
Board. William H. Haller, FREEDMAN AND LORRY, P.C., Philadelphia,
Pennsylvania, for Intervenor.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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DUNCAN, Circuit Judge:
Mail Contractors of America, Inc. (MCA) petitions for review
of the final order of the National Labor Relations Board (NLRB) in
an unfair labor practice proceeding, and the NLRB has filed a
cross-application for enforcement of its order. The order at issue
directed MCA to negotiate with Local 470 of the International
Brotherhood of Teamsters, AFL-CIO (Local 470), as the newly
certified collective-bargaining representative of MCA’s employees.
At the proceeding, MCA admitted its refusal to bargain with Local
470 but asserted that it was entitled to do so based on two
challenges it had raised in the earlier election certification
proceeding that resulted in Local 470 being certified as the
collective bargaining representative for MCA’s employees. Because
we find that the NLRB’s decision is reasonable and based upon
substantial evidence, we deny MCA’s petition and grant the NLRB’s
cross-application for enforcement.
I.
On April 15, 2003, Local 470 petitioned the NLRB to be
recognized as the collective bargaining representative of all full-
time and regular part-time drivers and mechanics employed by MCA at
its distribution facilities in Philadelphia, Pennsylvania and
Swedesboro, New Jersey. Local 470 requested that employees
eligible to vote on the matter be allowed to submit their ballots
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by mail between May 30, 2003 and June 16, 2003. Forty-one of the
forty-seven employees eligible to vote returned ballots by the
deadline, and a majority of twenty-eight voted to appoint Local 470
as their representative. The NLRB’s Regional Director certified
the results on June 17, 2003.
MCA filed objections to the election three days later, arguing
that Local 470 had engaged in two forms of prohibited
electioneering. First, MCA alleged that Local 470 had mailed a
leaflet entitled “WHO IS KIDDING WHOM” to the homes of eligible
voters that discussed purported misrepresentations by MCA regarding
the consequences of unionization. Second, MCA alleged that Local
470 had programmed the screen-saver on a computer terminal used by
voting employees to continuously scroll the message “VOTE YES LOCAL
470 AND JESUS WILL FORGIVE YOUR SINS.” J.A. 11-12. The Regional
Director overruled MCA’s objections, finding that MCA had failed to
sustain its burden of proof as to each allegation and that both
objections were predicated on dubious extensions of NLRB rulings.
On August 20, 2003, the NLRB adopted the Regional Director’s
findings and recommendations.
In order to secure further review of the NLRB’s certification
decision,1 MCA refused to bargain with Local 470, precipitating the
1
Because the NLRB’s certification of Local 470 as
representative is not a final “order” subject to review, “review of
certification proceedings must await a final order by the [NLRB] in
an unfair labor practice proceeding (often called a ‘technical
refusal to bargain’)” under 29 U.S.C. §§ 160(e), (f) (2000).
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commencement of an unfair labor practice proceeding. In that
proceeding, MCA simply reiterated its objections to the validity of
the election without presenting new evidence. Because MCA failed
to allege new legal or factual issues in its defense to the unfair
labor practice charge, the NLRB entered an order granted summary
judgement against MCA. MCA thereafter petitioned this court for
review, and the NLRB filed its cross-application for enforcement.
II.
This court will uphold the certification of an NLRB-supervised
election “[s]o long as the NLRB’s decision is reasonable and based
upon substantial evidence in the record considered as a whole.”
Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion,” Consol.
Diesel Co. v. NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (internal
quotation omitted). Additionally, “[t]he results of an
NLRB-supervised representative election are presumptively valid.”
NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th Cir. 2002)
(internal quotations omitted). Consequently, the challenging party
must bear the heavy burden of proving, by specific evidence, both
Family Serv. Agency San Francisco v. NLRB, 163 F.3d 1369, 1373 n.2
(D.C. Cir. 1999) (citing Am. Fed’n of Labor v. NLRB, 308 U.S. 401(1940)). The certification proceeding then becomes part of the
record for review in the unfair labor practice case pursuant to 29
U.S.C. § 159(d) (2000). See id.- 5 -
that improprieties occurred and that these improprieties prevented
a fair election. By extension, “minor violations . . . of
‘policy,’ having no apparent affect on an election result, may not
serve as the basis to overturn such election.” Elizabethtown Gas,
212 F.3d at 268; Case Farms of N.C., Inc. v. NLRB, 128 F.3d 841,
844 (4th Cir. 1997) (noting that while the NLRB’s goal in
supervising elections is to create “laboratory conditions” in which
to ascertain the desires of the employees,“elections do not occur
in a laboratory,” and, accordingly, “the actual facts must be
assessed in the light of realistic standards of human conduct”
(internal quotations omitted)).
A.
Turning to MCA’s first allegation, that Local 470 committed
prohibited electioneering by mailing the “WHO IS KIDDING WHOM”
pamphlet to the homes of eligible voters, we find no error. In
support of its claim, MCA presented a copy of the leaflet and an
envelope bearing a United States Mail postmark from which it had
redacted the addressee. MCA alleges, without additional support,
that this envelope was sent to an eligible voter and received
during the balloting period. Based on this evidence, MCA argues
Local 470 violated the rule announced in Milchem, Inc., 170 NLRB
362 (1968), in which the NLRB set aside the results of an election
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because a union representative spoke with employees as they waited
in line to vote.2
We agree with the NLRB that MCA’s evidence is inadequate to
sustain this objection. The party objecting to the results of a
certification election bears an affirmative burden of “adducing
prima facie facts that, if proven true, would invalidate the
election.” NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th
Cir. 1994) (emphasis added); see also NLRB v. Regional Home Care
Servs., Inc., 237 F.3d 62, 67 (1st Cir. 2001) (“The side claiming
taint of an election, or any unfairness that warrants the election
being set aside, bears the burden of proof on the issue.”). Thus,
MCA must present evidence that Local 470 a) engaged in the
equivalent of “prolonged conversations,” b) with an employee
eligible to vote, c) before the employee cast his or her ballot.
See NLRB v. WFMT, 997 F.2d 269, 274-75 (7th Cir. 1993) (discussing
Milchem).
Conclusory allegations as to the Milchem elements are
insufficient to satisfy the heavy burden attendant to proving an
election violation. See Selkirk Metalbestos v. NLRB, 116 F.3d 782,
787 (5th Cir. 1997). There is nothing in the record to support
MCA’s assertion that the pamphlet was actually received by eligible
voters during the voting period, that any of the voters had yet to
2
In resolving MCA’s objection, we assume without deciding that
the Milchem rule applies to elections by mail ballot.
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vote when it was received, or even that Local 470 sent it. In
light of these and other deficiencies, we find no reason to
overturn the NLRB’s decision that MCA failed to demonstrate
prohibited electioneering with respect to the “WHO IS KIDDING WHOM”
pamphlets.3
B.
We find MCA’s second objection, predicated on an extension of
the rule in Peerless Plywood Co., 107 NLRB 427 (1953) (prohibiting
employers from giving mass “captive audience” speeches to employees
during the period beginning 24 hours before the actual balloting
period begins), to be equally lacking in merit. In its objection,
MCA alleged that an agent of Local 470 programmed the screen saver
on a computer in the employees’ work room to scroll the words “VOTE
YES LOCAL 470 AND JESUS WILL FORGIVE YOUR SINS.” MCA argues that
this message constituted mass speech to the “captive audience” of
employees on shift on the three days during which the message was
displayed, as MCA used this computer terminal to communicate safety
messages to the drivers at that facility.
3
To the extent MCA argues its otherwise unsupported
allegations should be accepted as fact because Local 470 did not
present contrary evidence, we note that Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951), concluded that the substantial evidence
standard requires the petitioner “do more than create a suspicion
of the existence of the fact to be established.” Id. at 477(internal quotations omitted and emphasis added).
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In Peerless Plywood the NLRB explicitly prohibited employers
and unions “from making election speeches on company time to massed
assemblies of employees within 24 hours before the scheduled time
for conducting an election.” 107 NLRB at 429. However, the NLRB
later clarified that Peerless Plywood does not prevent either the
employer or the union from campaigning, even during the “Plywood”
period, “through mailings to employees at their homes, [and] in the
workplace, where they can distribute and post literature,
communicate with employees one-on-one, and even continue to conduct
mass meetings, as long as the meetings are on the employees’ own
time and attendance is not mandatory.” San Diego Gas & Elec., 325
NLRB 1143, 1146 (1998) (emphasis added). The screen saver message
falls well within the scope of such permitted conduct.
Additionally, a scrolling message on a single computer is
dissimilar from the “captive audience” speech at issue in Peerless
Plywood, as it lacks the potential “to create a mass psychology
which overrides arguments made through other campaign media.” 107
NLRB at 429.
MCA’s Peerless Plywood objection further suffers from the same
evidentiary deficiencies that doomed its Milchem objection. MCA
offers nothing beyond bare allegations that Local 470 was
responsible for generating the screen saver message or that any of
the employees working at MCA’s facility on the weekend when the
screen saver message was displayed could have seen it. MCA’s
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unsupported assertions fall short of its obligation to provide
“specific evidence of specific [violations].”4 Selkirk
Metalbestos, 116 F.3d at 787.
III.
In light of the foregoing, we find that MCA’s objections to
the certification election were meritless. The NLRB precedents on
which MCA relied were easily distinguishable, particularly given
the paucity of evidence adduced by MCA. Accordingly, we deny MCA’s
petition for review and grant the NLRB’s cross-application for
enforcement of its order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR
ENFORCEMENT GRANTED
4
Similarly, MCA offers no basis on which to constructively
charge Local 470 with responsibility or to assume that the
employees witnessed the message. Although actions taken by a
“Union adherent” may nevertheless be “sufficiently substantial in
nature to create a general environment of fear and reprisal such as
to render a free choice of representation impossible,” and thus
require that the election be voided, Methodist Home v. NLRB, 596
F.2d 1173, 1183 (4th Cir. 1979), the screen saver message is so
innocuous as to make Methodist Home inapposite.
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WIDENER, Circuit Judge, concurring:
I concur in the result.
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