Lamar Co. v. National Labor Relations Board , 127 F. App'x 144 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 8, 2005
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 04-60416
______________________
LAMAR COMPANY, LLC d/b/a
LAMAR ADVERTISING OF JANESVILLE,
Petitioner-Cross-Respondent,
versus
THE NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
____________________________________________________
Petition for Review of an Order
of the National Labor Relations Board
(30-CA-16706)
_____________________________________________________
Before SMITH, DENNIS, and PRADO Circuit Judges.
PER CURIAM:*
This case is before the court pursuant to a petition for
review of an order of the National Labor Relations Board entered on
April 30, 2004 directing the petitioner, Lamar Company LLC, d/b/a/
Lamar Advertising of Janesville, to enter into negotiations with
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
International Union of Painters and Allied Trades, District Council
No. 7, AFL-CIO.1 Lamar is a Louisiana company engaged in the
business of manufacturing, erecting, marketing, and maintaining
commercial billboards throughout the United States. Lamar operates
a facility in Janesville, Wisconsin, including area offices and a
shop where billboards are painted and built. The instant case
arises out of an election held at that facility in which a
bargaining unit of sixteen employees were given the option of
joining the Union. The election was held on January 5, 2001 and
the Union prevailed by a vote of nine (9) to seven (7), a margin of
one vote. Lamar filed objections to the validity of the election
results with the Board, which were overruled by a hearing officer.
In due course, the Board adopted the hearing officer’s findings and
recommendations. Lamar refused to bargain with the Union in order
to question the propriety of the representation election.2 On
January 27, 2004, the Union filed a petition with the Board
1
The order also found that in failing to bargain with the
Union, Lamar engaged in unfair labor practices pursuant to
§8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §
151 et. seq.
2
“Representation proceedings are not subject to direct
review by this court. In order to secure judicial review of his
objections to an election, the employer must refuse to bargain
with the certified union thus committing an unfair labor practice
and causing the Board to issue an order to bargain requiring
judicial enforcement. The representation case and the unfair
labor practice case become one and the complete record is fully
reviewable.” NLRB v. Osborn Transp., Inc., 589 F.2d 1275, 1278
(5th Cir. 1979)(citations omitted).
2
alleging violations of §§8(a)(1) and 8(a)(5) of the National Labor
Act. The Board issued a complaint against Lamar for its failure to
bargain, and Lamar filed an answer contesting the underlying
propriety of the representation election. On a motion for summary
judgment, the Board issued a Decision and Order directing Lamar to
bargain with the Union. In response, Lamar filed this Petition for
Review raising seven issues. We deny the petition for review and
grant enforcement of the Board’s decision.
Standard of Review
This court will affirm the Board’s decision “if it is
reasonable and supported by substantial evidence on the record
considered as a whole.” Valmont Indus. v. NLRB, 244 F.3d 454, 463
(5th Cir. 2001). “Substantial evidence is ‘such relevant evidence
that a reasonable mind would accept to support a conclusion.’”
Poly-America, Inc. v. NLRB, 260 F.3d 465, 476 (5th Cir.
2001)(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)). “We review questions of law de novo, but defer to the
legal conclusions of the Board if reasonably grounded in the law
and not inconsistent with the Act.” Id. (citations omitted).
Analysis
“In challenging a representation election, the objecting party
bears the burden of adducing prima facie facts that, if proven
true, would invalidate the election.” NLRB v. McCarty Farms, Inc.,
3
24 F.3d 725, 728 (5th Cir. 1994) (citing NLRB v. Klingler Elec.
Corp., 656 F.2d 76, 79 (5th Cir. 1981)). The party which objects to
the representation must produce evidence of misconduct that
“interfered with the employees’ exercise of free choice to such an
extent that they materially affected the results of the election.”
Id. (citing NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th
Cir. 1969)). Where the election results were close, allegations
of misconduct must also be closely scrutinized. Id. (citing NLRB
v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972)). Keeping
this in mind, we consider each of the issues Lamar has raised in
turn.
Issue 1: Alleged Threat to Weber
Lamar alleges that the Union Business Manager William Moyer
threatened employee Dan Weber’s employment, pension, or other
benefits when, about fifteen minutes before the polling period and
twenty-five feet away from the breakroom where the polling would
take place, Moyer told Weber that he “should think long and hard on
how he would vote because the union would be the one making his
wages.”
We agree with the Board’s finding, that Moyer’s statement did
not constitute a threat of job loss, and was at worst a
misrepresentation of the Union’s control over employees’ wages.
Courts have remarked that rank-and-file employees know that a union
4
does not have such control. See NLRB v. Tio Pepe Inc., 629 F.2d
964, 971 (4th Cir. 1980); NLRB v. Sauk Valley Mfg. Co., Inc., 486
F.2d 1127, 1131 (9th Cir. 1973). “[E]mployees must generally be
trusted to sort through election propaganda and posturing in
deciding how to vote.” Trencor v. NLRB, 110 F.3d 268, 276 (5th Cir.
(5th Cir. 1997). Therefore, Moyer’s purported statement about
wages would not have interfered with the employee’s exercise of
free choice. As such it is not a basis for overturning the
election.
Issue 2: Alleged Threats to Dygart
Lamar alleges that the election was flawed because Jason
Dygart, an employee who voted for the Union, did so because of
threats made against him. Mr. Dygart was a brushcutter on a three
man crew. Prior to the election, Dygart’s co-workers, including
Steve Jones, told Dygart, apparently on more than one occasion,
that if he didn’t vote for the Union, “we’re going to kick your
ass.” Mr. Dygart’s testimony, however, indicates that he
considered these statements normal worksite joking, “just a way of
talking” and not threats of actual bodily injury. Lamar alleges
that the comments constitute threats which effected the outcome of
the election. The Board decided that these co-workers were not
union agents and applied a test for third party conduct. The
Board’s factual determination that Jones was not an agent was
5
supported by substantial evidence on the record as a whole,
particularly considering the lack of evidence that the Union ever
gave Jones any authority to act as its agent.
The existence of an agency relationship is a factual
determination. Poly-America, 260 F.3d at 480. Common law
principles apply in determining agency status. Id. “‘Apparent
authority’ exists where the principal engages in conduct that
‘reasonably interpreted’ causes the third person to believe that
the principal consents to have the act done on his behalf by the
person purporting to act for him.” Restatement (Second) of Agency
§ 27 (1992). The burden of proving an agency relationship falls on
the person asserting its existence, in this case, Lamar. Id.
Lamar argues that Jones was an agent of the Union because
Jones held organization meetings in his home, distributed Union
literature to eligible employees, and was entrusted with the task
of inviting other employees to Union meetings. Holding union
meetings, even without the presence of union officials, has been
held to be inconclusive evidence of agency. L & A Juice Co., 323
NLRB 965 (1997). Here, there is not even evidence that Jones
organized or conducted these meetings. Nor is the distribution of
union literature necessarily indicative of agency status. Jones’s
role in distributing the literature was merely to pick up copies of
handouts made available at meetings in response to the Union
representative’s request that “the last one out the door stick them
6
in the shop” the next day. The Sixth Circuit has held that even
members of an in-plant organizing committee tasked with
distributing information and soliciting authorization cards had “so
few responsibilities and such limited authority that they could no
be mistaken for agents.” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 809
(6th Cir. 1989).
Cablevision Systems of New York City Corp., the case Lamar
cites to support its position, is readily distinguishable because
the individuals found to be agents of the union in that case were
union members, not employees of the target company who had been
expressly asked by the union to organize on the employer’s
premises. 312 NLRB 487 (1993). The individuals were part of what
was known as the “Cablevision Organizing Committee” and there was
no evidence that any union official participated in the organizing
campaign, lending support for a finding that the union held out the
four individuals as its representatives. Id. at 491. In contrast
Jones was an employee and not a member of any organizing committee.
In addition, at Lamar, Union officials were actively engaged in
organizing activities.
In agreeing with the Board’s finding that Jones was not an
agent of the Union, we also agree that the appropriate test is that
applied to third-party conduct. The Board will only set aside an
election on the basis of third-party threats if the conduct is “so
aggravated as to create a general atmosphere of fear and reprisal
7
rendering a free election impossible.” Westwood Horizons Hotel,
270 NLRB 802, 803 (1984); see also Hobbs v. Hawkins, 968 F.2d 471,
476 (5th Cir. 1992). The objecting party bears the burden of
showing that the conduct warrants setting aside the election. Cal-
West Periodicals, 330 NLRB 599, 600 (2000). In evaluating the
conduct of a third party, the Board considers several factors
including: (1) the nature of the threat; (2) whether the threat
encompassed the entire bargaining unit; (3) whether reports of the
threat were widely disseminated within the unit; (4) whether the
threat was ‘rejuvenated’ at or near the time of the election; (5)
whether the person making the threat was capable of carrying it
out; and (6) whether from an objective standpoint, it is likely
that the employees acted in fear of the speakers capacity to make
good on the threat. Westwood Horizons, 270 NLRB at 803.
Applying those factors to the instant case, as the Board did,
we find that the Board’s conclusion that the conduct of Dygart’s
co-workers fell short of a general atmosphere of fear and reprisal
is correct. The remarks, while literally physical threats, appear
to have been in the nature of normal workplace kidding around. The
remarks were made to only one member of the voting unit, who
apparently told no one else until after the election. We note,
however, that these two factors should carry little weight in the
context of an election decided by only one vote. The remarks do
not appear to have been repeated near the election. And while the
8
person or people making the remarks may have had the physical
ability to carry them out (the record does not reflect any
particular advantage conferred by size, inclination, or training),
it is not clear that Mr. Dygart took them seriously or subjectively
believed that his co-workers would “kick his ass.” Mr. Dygart did,
however, apparently decide to vote for the Union, and while a
reasonable reading of his testimony indicates that his mind was
changed by ordinary peer pressure and comradery and not physical
threats, there is a possibility that his vote was affected by the
remarks. Objectively, given the context described in Mr. Dygart’s
testimony, it is unlikely that a reasonable employee in Dygart’s
position would have been frightened.3 We conclude that the Board’s
finding that “the record did not show that ‘under all the
circumstances, a reasonable employee in Dygart’s position would
have been put in fear by the threat,’” is reasonable and supported
by substantial evidence.
Issue 3: Alleged Threats to Voit
Lamar alleges that the Union threatened employee Daniel Voit
3
See Abbott Labs. v. NLRB, 540 F.2d 662, 667 (4th Cir.
1976)(noting that in an industrial setting, language like “I’m
going to kick your ass” was common hyperbole not expected to have
coercive impact.); Leaseco, Inc., 289 NLRB 549, 552
(1988)(describing the statement “I’ll kick your ass” as “a
profane colloquialism used commonly to verbalize the speaker’s
desire to prevail over another person or group,” and that
“standing alone...it does not convey a threat of actual physical
harm.”).
9
that if he did not vote for the Union he risked losing retirement
benefits due to him through his membership in another union, the
International Brotherhood of Electrical Workers, Local 890. The
record shows that at the request of a Union official, Leo Sokolik,
a representative for Local 890 called Voit. During the
conversation, Sokolik told Voit that he had heard that Voit was
planning on voting against the Union and asked why. Voit told him
that other employees had not included him in their discussions of
the Union or asked for his opinion. Sokolik told him that he
shouldn’t vote but that “if you do vote you should vote yes because
you’re a union member.” There is no evidence that any mention was
made of Voit’s employment, pension, or benefits. Voit expressly
denied that Sokolik mentioned his pension. After the call, Voit
told others that he felt unfairly singled out, but an attempt to
draw on the sympathy of a voter’s previously indicated pro-labor
sympathy is hardly synonymous with a threat. The Board’s finding
that Voit was not threatened with a loss of employment, pension, or
other benefits was reasonable and supported by substantial
evidence.
Issue 4: Electioneering at the Polling Area
Lamar also asserts that the election must be set aside because
the Union, through its alleged agent Jones, engaged in improper
electioneering on the day of the election. As explained above, we
10
reject Lamar’s argument that Jones was an agent of the Union. On
the morning of the election, simultaneous with or prior to the
opening of the polls, Jones approached two of his co-workers and
showed them a note handwritten by union representative Moyer the
day before, which stated that Moyer pledged to stop negotiating on
the unit employees’ behalf if they believed negotiations were not
being conducted to their benefit. Both men voted about fifteen
minutes after seeing the note. Lamar argues that this conduct
violated the rule found in Milchem, Inc. against electioneering in
the form of “prolonged conversations between representatives of any
party to the election and voters waiting to cast ballots....” 170
NLRB 362 (1968). Jones’s limited circulation of the handwritten
note, without evidence of more is not reasonably characterized as
a “prolonged conversation” and as noted Jones was not an agent of
the Union. Further, Jones’s behavior did not “disrupt[ ] the
voting procedure or destroy[ ] the atmosphere necessary to the
exercise of a free choice in the representation election.” NLRB v.
Carroll Contracting & Ready-Mix, Inc., 636 F.2d 111, 113 (5th Cir.
1981).
Issue 5: Union Expenditures
Lamar argues that the election must be set aside because in
providing food and beverages at pre-election meetings, the Union
bestowed excessive gifts upon employees. The Union spent
11
approximately four hundred dollars ($400) on refreshments over
seven meetings at local bar and grills. In addition, about three
weeks before the election the Union sponsored a dinner at “The 615
Club,” for seven employees, their significant others and the Union
Business Manager Moyer and his wife. The Union spent eight-hundred
fifteen dollars ($815) on the dinner, including a generous two-
hundred dollar tip. Providing food and drinks at organizational
meetings is normal and the Board “will not set aside an election
simply because the union...provided free food and drink to the
employees.” Chicagoland Television News, Inc., 328 NLRB 367, 367
(1999); Kux Mfg., 890 F.2d at 810. The provision of food and
drinks is only objectionable where the benefit is conditioned upon
the employee’s support or the expense is so exorbitant it amounts
to a bribe. See NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 330
(5th Cir. 1991); Kux Mfg., 890 F.2d at 810. We agree with the
Board that these expenditures were not so excessive as to amount to
bribes, nor do we find evidence that the food and drink was
conditioned on the employee’s support.
Issue 6: Meetings at a Bar and Grill or a Strip Club?
In a related arguement, Lamar complains about the locale of
five of the Union’s pre-election organizational meetings. These
meetings were held at a local bar and grill that shares a building
with a strip club. Lamar argues that the Union’s decision to hold
12
meetings there violated Board policy prohibiting discrimination.
The evidence confirms that the meetings were confined to the bar
and grill area and that the Union paid only for food and drinks.
Although the bar and grill shares a common entrance with the strip
club, the two are physically separate and patrons may enter the
strip club only after paying a cover charge. There was no evidence
that any Union related activity drifted into the strip club. The
Board’s conclusion that the fact that meetings were held in the
same structure as a strip club does not warrant reversal of the
election was reasonable.
Issue 7: Leather Jacket
The last issue raised by Lamar is an alleged promise made to
one of the employees with regard to a leather jacket. The employee
in question is Jones, again. A few days before the election, Jones
and another employee met with Union business manager Moyer and the
Union’s international representative, B.J. Cardwell, for several
hours. Cardwell was wearing a leather jacket with Union insignia,
available for purchase by Union members for one-hundred ninety-nine
dollars ($199). The evidence indicates that throughout the evening
Jones repeatedly admired the jacket, mentioning that he wanted one
for himself and asking how he could get one. Both Moyer and
Caldwell refused to answer him. Finally, after several hours of
such badgering, Jones asked, “hey if we win this can I get a coat,”
13
and Moyer responded in the affirmative. We agree with the Board
that at most this was an ambiguous exchange and not an offer of
quid pro quo. This conclusion is particularly reasonable given
that Jones was one of the more avid union supporters among the
employees (he was involved enough in the organization efforts that
Lamar has asserted that he was a Union agent) and his vote was
probably considered certain by the Union representatives by the
date of this conversation.4 There was no suggestion that Jones
would be given the coat for free or even for a discount. The
existence of the jackets or the possibility of obtaining them was
not mentioned beyond the very small group present for Jones’s
entreaties. The lone ambiguous conversation with a confirmed Union
supporter is not sufficient to cast suspicion on the election.
Conclusion
We do not find cause to overturn the election for any of the
above listed reasons alone, or in combination. The cumulative
impact of a number of insubstantial objections does not amount to
a serious challenge meriting a new election. See NLRB v. White
Knight Mfg. Co., 474 F.2d 1064, 1067-68 (5th Cir. 1973).
Accordingly, Lamar’s petition to set aside the order of the Board
is DENIED, and the Board’s petition for enforcement is GRANTED.
4
It is, however, logical to assume that a jacket with Union
insignia was commonly available only to Union members and that
this is why Jones could not buy one before the election.
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