Exela Enterprise Solutions v. NLRB ( 2022 )

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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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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No. 21-60426
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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