NLRB v. City Wide Insulation ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2887
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
CITY WIDE INSULATION OF MADISON, INC.,
d/b/a BUILDERS’ INSULATION, INC.,
Respondent.
____________
Application for Enforcement of a Final Order
of the National Labor Relations Board
No. 30-CA-16393
____________
ARGUED FEBRUARY 13, 2004—DECIDED MAY 27, 2004
____________
Before FLAUM, Chief Judge, and MANION and DIANE P.
WOOD, Circuit Judges.
MANION, Circuit Judge. The National Labor Relations
Board (“NLRB” or “Board”) petitions for enforcement of its
order that City Wide Insulation of Madison, Incorporated,
bargain with the Milwaukee and Southern Wisconsin
Regional Council of Carpenters (“the Union”). Because
the Board’s decision has a reasonable basis in law, and be-
2 No. 03-2887
cause substantial evidence supports both the Board’s sub-
stantive conclusion and decision not to hold an evidentiary
hearing, we enforce the Board’s order.
I.
City Wide buys and sells insulation from its facility in
Germantown, Wisconsin. On October 18, 2002, the Union
petitioned to represent the insulation workers at that
location, and the Union and City Wide then agreed to hold
a representation election on November 20, 2002, from 7:00
a.m. to 7:30 a.m at City Wide’s Germantown location. Un-
fortunately, because of the Board’s negligence, the Board
agent responsible for conducting the election failed to ap-
pear on the morning of November 20. Although the Board
offered to send an agent later that day or on November 21,
City Wide rejected those proposals. The parties and the
Board eventually agreed to hold the election on November
26. There were 21 eligible voters, and the Union prevailed
by a vote of 15 to 5. City Wide challenged the election pro-
cedures administratively on the grounds that its employees
inferred from the delay that City Wide had tampered with
the election process, and neither the Union nor the Board
did anything to dispel that notion. The Board rejected this
argument and certified the Union as the unit employees’
exclusive representative.1
The Union then asked City Wide to bargain. After City
Wide refused, the Union filed a charge of unfair labor prac-
tices with the Board, contending that City Wide violated 29
1
A certification order is not appealable, but City Wide properly
obtained judicial review by refusing to bargain and then asserting
its objections to the election as a defense to the ensuing charge of
an unfair labor practice. See, e.g., Vitek Elecs., Inc. v. NLRB, 763
F.2d 561, 567 n.10 (3d Cir. 1985); General Fin. Corp. v. FTC, 700
F.2d 366, 370 (7th Cir. 1983).
No. 03-2887 3
U.S.C. §§ 158(a)(1) and (a)(5). City Wide’s only defense was
that it was under no obligation to bargain because the
Union had not been properly certified. Without holding an
evidentiary hearing, the Board once again concluded that
the certification election was proper and ordered City Wide
to bargain with the Union. The Board also opined that, “[i]n
order to avoid objections similar to the one the employer
has raised here, we find that it would be preferable for
Regional Offices to include in any notice of rescheduled
election a statement that the election has been rescheduled
for administrative reasons beyond the control of the em-
ployer or the union.”2
City Wide appeals, maintaining that the Board’s decision
lacks a reasonable basis in law, that substantial evidence
did not support the Board’s decision, and that the Board
erred by refusing to conduct an evidentiary hearing.
II.
Under 29 U.S.C. §§ 160(e) and (f), we have jurisdiction
over petitions for review of the Board’s decisions. Sears,
Roebuck & Co. v. NLRB, 349 F.3d 493, 502 (7th Cir. 2003).
Our function is to decide whether the Board’s factual deci-
sions are supported by substantial evidence and whether its
legal conclusions have a reasonable basis in law. Id. The
Board’s factual decisions satisfy the substantial evidence
standard where the Board relies upon “such relevant
2
This is a recommendation with which we heartily agree. Where,
as here, the Board’s negligence causes a certification election to be
delayed, the best course would be for the Board to issue a strong
disclaimer to the effect that it, and not the employer or union, is
responsible for the mishap. Such a statement would avoid
confusion, and a possible negative reaction, among employees in
the bargaining unit. It would also go a long way toward nipping
controversies like this one in the bud.
4 No. 03-2887
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. We apply a similarly deferential
standard to whether the Board’s legal conclusions have a
reasonable basis in law. Id. Bearing those standards in
mind, we turn to the relevant statutory provisions.
Under 29 U.S.C. § 158, an employer may not “interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title,” 29 U.S.C.
§ 158(a)(1), nor may an employer “refuse to bargain col-
lectively with the representatives of his employees, subject
to the provisions of section 159(a) of this title,” 29 U.S.C.
§ 158(a)(5). Framed as an affirmative requirement, these
two provisions require an employer to bargain in good faith
with a properly certified union. NLRB v. Horizon Hotel
Corp., 49 F.3d 795, 805-06 (1st Cir. 1995); NLRB v. Overnite
Transp. Co., 938 F.2d 815, 821 (7th Cir. 1991).
City Wide argues that the Union was never properly
certified and that it was thus under no obligation to bar-
gain. A union may obtain certification in one of two ways:
through an election or the employer’s voluntary recognition.
Lincoln Park Zoological Soc. v. NLRB, 116 F.3d 216, 219
(7th Cir. 1997). Here, of course, there was no voluntary
recognition and the only question is whether the Union
obtained recognition through a valid election.
A. Whether the Board’s decision has a reasonable basis in
law.
The Board3 stated that the election procedures were valid
because they met the standard set forth by the laboratory
3
The Board adopted the Regional Director’s findings and rec-
ommendations holding that the election was proper, and so it is
those findings and recommendations, incorporated in the Board’s
order, that we review. See Kendall College v. NLRB, 570 F.2d 216,
218 n.1 (7th Cir. 1978).
No. 03-2887 5
conditions doctrine enunciated in General Shoe Corp., 77
NLRB 124 (1948).4 City Wide nonetheless maintains that
the Board, despite the pretense of applying the laboratory
conditions doctrine, actually failed to use that standard,
thus leaving the Board’s decision without a reasonable basis
in law. In general, the laboratory conditions doctrine is
satisfied where the employees exercised a “free choice.”
Overnite Transp. Co. v. NLRB, 104 F.3d 109, 113 (7th Cir.
1997) (reviewing the Board’s application of the laboratory
conditions doctrine). Because the alleged misconduct in this
case, the delay, emanates from a third party, the Board, the
more specific question is whether “the rational, uncoerced
selection of a bargaining representative” was possible
despite the Board’s negligence. Id.; see also NLRB v.
Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991)
(stating that the party seeking to set aside a Board-certified
election must show not only that improprieties occurred,
but that they interfered with employees’ free choice to such
an extent that they “materially affected the results of the
election”).
At the beginning of the Regional Director’s analysis,
which was adopted in full by the Board, the Regional
Director thoroughly delineated City Wide’s evidence, cited
General Shoe Corp., and then stated that he was applying
the laboratory conditions test to that evidence. He then
4
The laboratory conditions doctrine has elicited criticism, some
of it from this court. See, e.g., NLRB v. Lovejoy Indus., Inc., 904
F.2d 397, 402 (7th Cir. 1990) (reasoning that, for a representation
election to be adequate, it is not necessary that employees be
treated “as if they were bacteria on a petri dish that must be kept
free of contamination”). Historically, moreover, the Board itself
has flip-flopped on whether the laboratory conditions doctrine is
correct. 1 The Developing Labor Law 446-47 (Hardin et al. eds.,
4th ed. 2001). Nonetheless, the doctrine has a reasonable basis in
law. See id.6 No. 03-2887
discussed why, in his view, neither the NLRB’s “failure to
provide a more complete explanation” for why the election
was delayed, nor the speculation of some employees as to
why the election was postponed, disrupted the “laboratory
conditions” in which the election had to be held.
Despite the Regional Director’s invocation of the labora-
tory conditions test, City Wide, as noted above, argues that
the Regional Director did not really apply that doctrine. It
bases this contention primarily on the Regional Director’s
reliance on a few cases, e.g., Malta Constr. Co., 276 NLRB
1494 (1985), that did not directly concern the laboratory
conditions doctrine, but instead related to the disenfran-
chisement test. The disenfranchisement test is different
from the laboratory conditions doctrine in that it typically
applies to situations in which some, but not all, employees
were alleged to have been denied the chance to vote. See,
e.g., Wolverine Dispatch, Inc., 321 NLRB 796, 796-98 (1996)
(applying the disenfranchisement test where polls closed
early, preventing a minority of employees from voting).
Under the disenfranchisement test, an election will be set
aside if the number of employees possibly disenfranchised
is sufficient to affect the election’s outcome. Id. at 797.
The two standards are analogous, so much so that it is
not always clear where to draw the line between them. For
example, if inclement weather prevents one employee from
voting, depending on the circumstances, the disenfranchise-
ment test may apply. See V.I.P. Limousine, Inc., 274 NLRB
641 (1985) (citing Wanzer Dairy, 232 NLRB 631 (1977)).
A storm that prevents one-quarter of eligible employees
from voting, however, calls for the laboratory conditions
doctrine. See id. It is unclear which test would apply to
weather conditions that prevented, say, one-eighth of the
employees from voting. The distinction may well be aca-
demic, because both tests have the same ultimate focus. As
noted above, under either standard, the results of an elec-
tion will be disturbed only where an irregularity affected
the election’s outcome.
No. 03-2887 7
Here, as City Wide correctly points out, the Regional
Director cites cases applying each test. When he did so,
however, the Regional Director was merely relying on
analogous authority. Disenfranchisement cases, in which
some employees were alleged to have been deprived of a
meaningful choice in a representation election, are analo-
gous to laboratory conditions cases, like this one, in which
all employees are alleged to have been deprived of that
meaningful choice. Cf. Superior of Mo., Inc., 2002 WL
31717852, at **4-8 (NLRB 2002) (applying both the labor-
atory conditions doctrine and the disenfranchisement test
where the election was delayed seven days because of the
Board agent’s failure to open the polls). Courts, of course,
routinely invoke analogous authority, and we do not infer
from the Regional Director’s decision to do the same thing
in this case that he somehow failed to apply the laboratory
conditions test.
City Wide also notes that the Regional Director observed
that 20 out of 21 employees voted, and that the missing
employee’s vote thus did not affect the election’s outcome.
In City Wide’s view, this observation of a fact irrelevant to
the laboratory conditions doctrine implies that the Regional
Director did not actually apply the doctrine. The Regional
Director’s recitation of one fact superfluous to the labora-
tory conditions test, however, does not lead to the inference
that he did not apply that test. We conclude that the
Regional Director, and thus the Board, applied the labora-
tory conditions test and that the Board’s decision therefore
has a reasonable basis in law.
B. Whether substantial evidence supported the Board’s
decision.
We turn next to City Wide’s argument that substantial
evidence does not support the Board’s conclusion that the
8 No. 03-2887
election was proper. City Wide argues that the only rea-
sonable conclusion is that the employees could not make a
rational, uncoerced decision regarding whether to certify
the Union, basing this assessment on several affidavits that
are a part of the record. We address the substance of each
of these affidavits, one of which is from branch manager
Troy Wetzel, and the rest of which are from City Wide
employees Alfonso Casillas, Ramon Martin, Jose Rodriguez,
Jose Duenas, and Scott Helm.
In his affidavit, branch manager Wetzel states that em-
ployees were shocked and confused when the election was
postponed. Wetzel further states that Casillas told him that
employees were “pissed off” about the postponement, and
that he told Casillas on November 21 that the postpone-
ment was not his fault. Although Wetzel twice states that
he thought employees held him (and, by derivation, City
Wide) responsible for the postponed election, he provides no
basis for that conclusory assertion. Nothing in Wetzel’s
affidavit, therefore, would lead to the conclusion that
employees were so affected by their misdirected anger
toward City Wide that they could not make a rational,
uncoerced decision about whether to vote for the Union.
In Casillas’s affidavit, he states that employees were an-
gry about the delay. Casillas, however, only mentions one
employee, Martin, who indicated that he blamed City Wide.
Casillas offers his opinion that “at least four” employees
changed their votes because of the delay, but, except for his
statement about Martin, offers no support for that asser-
tion.
In his affidavit, Martin does not state that he blamed City
Wide for the delay. In fact, Martin avers that “[o]n approxi-
mately November 24, 2002, the union told me that the
election did not happen because the government had
written down the wrong date,” and that Martin himself did
not know whether the NLRB was to blame.
No. 03-2887 9
In Rodriguez’s affidavit, he states that he thought some
employees changed their votes because of the delay.
Rodriguez, however, does not provide a foundation for that
belief.
In Duenas’s affidavit, he states that he and 13 other
employees were confused and surprised by the delay. He
does not say, however, that he blames City Wide. On the
contrary, Duenas avers that he thought that the election
was cancelled because “the union and company many have
reached some kind of agreement and the election was no
longer necessary.”
In Helm’s affidavit, he begins by asserting that “[i]t is
human nature to think that the company somehow fixed the
election process.” He then goes on to make the seemingly
incompatible statement that he “was worried that the Board
pushed us aside because we are a small company.” (Empha-
sis added.) He acknowledges still later that he “learned that
the Board Agent failed to appear for the scheduled election
on November 20, 2002,” and ends by saying that he does
“not know why the Board Agent did not appear on Novem-
ber 20, 2002.”
On this evidence, the Board faced a difficult decision. It
may be, as City Wide intimates, that the whole of these
affidavits are greater than the sum of their parts. Even
though none of City Wide’s employees, in his own affidavit,
states that he thought City Wide was responsible for the
delay, a reasonable factfinder might have concluded that
employees’ dissatisfaction with the unnecessary confusion
created by the Board was great enough to disrupt labora-
tory conditions.
We conclude, however, that a rational factfinder could
also have found, as did the Board, that the NLRB’s careless
error was not so severe as to deny employees a rational,
uncoerced choice. It is particularly significant that, as
Martin states in his affidavit, before the election took place,
10 No. 03-2887
the Union placed blame for the delay on the NLRB, not City
Wide. We also note that Helm similarly indicates that,
before the election, he “learned that the Board Agent failed
to appear. . . .” We conclude that, on the basis of this
evidence, a rational factfinder could have found, as did the
Regional Director, that the six-day delay of the election did
not bias the employees against City Wide so as to render
impossible the rational, uncoerced selection of a bargaining
representative. This was a close case, which means, given
our deferential standard of review, that we may not disturb
the Board’s factual conclusion. See Sears, 349 F.3d at 503.
We next consider City Wide’s contention that the Board’s
failure to set aside the election is “irreconcilable with its
own precedent” and thus arbitrary. All of the cases upon
which City Wide relies for that proposition concern either
(1) irregularities in the conduct of elections that actually
took place where the voting period was cut short, thus cre-
ating the potential for employee disenfranchisement and a
different outcome to the election;5 or (2) those cases involv-
ing a member of the Board who engaged in conduct that
cast doubt on the Board’s impartiality.6 None re
5
See Gory Assoc. Indus., Inc., 275 NLRB 1303, 1303 (1985)
(Board interpreter arrived late to ongoing election); Nyack Hosp.,
238 NLRB 257, 258-59 (1978) (Board agent opened polls over
1 hour late); B&B Better Baked Foods, Inc., 208 NLRB 493, 493
(1974) (Board agent opened polls late, possibly disenfranchising
employees); Kerona Plastics Extrusion Co., 196 NLRB 1120, 1120
(1972) (Board agent closed polls early in presence of employees
waiting to vote).
6
See NLRB v. Fresh’nd-Aire Co., 226 F.2d 737, 739 (7th Cir.
1955) (Board employee attended pre-election union meetings);
Renco Electronics, Inc., 330 NLRB 368, 368 (1999) (Board inter-
preter asked an employee waiting to cast a ballot, “Do you know
where to put your yes vote?”); Hudson Aviation Services, Inc. 288
(continued...)
No. 03-2887 11
motely concerned a case resembling this one, in which the
Board merely postponed an election for six days and did
nothing that arguably made it appear to favor or oppose the
Union.
However, Superior of Mo., in which the election was de-
layed for seven days because the Board agent overslept, is
similar to this case. There, after an evidentiary hearing, the
Board held that the laboratory conditions doctrine was
satisfied. 2002 WL 31717852, at ** 1-3. We therefore dis-
agree with City Wide’s assertion that the Board’s decision
in this case is irreconcilable with its own precedent.
C. Whether an evidentiary hearing was necessary.
The final issue on appeal is whether the Board denied
City Wide a hearing in violation of 29 C.F.R. § 102.69(d),
which states that a hearing “shall be conducted with respect
to those objections or challenges which the regional director
concludes raise substantial and material factual issues.”
The Regional Director, in other words, must conduct a
hearing when the employer puts forth facts “sufficient to
support a prima facie showing of” misconduct sufficient to
set aside the election. Lovejoy Indus., Inc., 904 F.2d at 400(quotation omitted). We review for substantial evidence the
Board’s decision regarding whether to grant a hearing
pursuant to § 102.69(d). Id.
(...continued)
NLRB 870, 870 (1988) (Board agent conducting the election
engaged in a loud argument with an employer representative and
threatened to stop the vote); Alco Iron & Metal Co., 269 NLRB
590, 590-92 (1984) (union election observer, at the request of a
Board agent, translated polling procedures into Spanish to em-
ployees waiting to vote); Athbro Precision Eng’g Corp., 166 NLRB
966, 966 (1967) (Board agent drank beer in a café with a union
representative between polling periods of a representation
election).
12 No. 03-2887
Lovejoy is instructive. There, the union won the certifi-
cation election by a vote of 69-39 but, according to the
employer’s assertions, shortly before the certification elec-
tion there occurred several events that established a prima
facie showing of voter intimidation sufficient to require an
evidentiary hearing. Employee Alfred McCann averred that,
shortly after he told a union supporter, Sacramento
Olivaros, that he opposed the union, Olivaros told him that
he should “watch out” and “look out.” Id. at 399. A few days
later, someone scratched McCann’s car while it was parked
in the company lot. Id. Before the election, McCann told
other employees what had happened to him. Another
employee also had his car vandalized before the election. Id.The employer pointed out that, before the organizing
campaign, no car had ever been damaged in the employer’s
lot.
Also before the election, another anti-union employee was
called a “chicken” by an unidentified union supporter, and
employee Francesco Mombela signed a union authorization
card because, as one of the the employer’s supervisors
quoted him, he “fear[ed] damage to his property and injury
to his family.” Id. The employer, as noted above, argued
that these asserted facts showed a prima facie case of
intimidation sufficient to require a hearing under
§ 102.69(d).
We disagreed, holding that substantial evidence sup-
ported the Board’s decision not to hold an evidentiary
hearing. This court reasoned that, although the employer’s
professed facts showed that employees feared union co-
ercion, “[p]rofessions of fear from employees who do not or
cannot explain its basis do not oblige the Board to conduct
a hearing.” Id. at 402.
Here, we face a similar situation but with fewer negative
facts. Although City Wide has asserted that several em-
ployees had a vague fear that the company had somehow
No. 03-2887 13
subverted the election, it has not put forth facts showing
that there was a real basis for that fear. Therefore, just as
an evidentiary hearing was not obligatory in Lovejoy, it is
not required here.
City Wide misplaces its reliance on NLRB v. Superior of
Mo., Inc., 233 F.3d 547 (8th Cir. 2002) for the contrary
proposition. In Superior, the representation election was
delayed one week because of the NLRB’s negligence, and
someone spread a rumor that the employer bribed the
Board not to hold the election. The Eighth Circuit concluded
that a hearing was necessary to determine whether the
union took advantage of the circumstances and there was
resulting prejudice against the employer. See id. at 552. As
the Eighth Circuit reasoned, “the Union made no effort to
advise employees of the Board agent’s mistake. Without a
hearing, we cannot know whether Union organizers or
supporters helped fuel the rumor to Superior’s disadvan-
tage.” Id. at 551.
This case is distinguishable from Superior. Here, Martin’s
affidavit states that, “approximately on November 24, 2002,
the Union told [him] that the election did not happen
because the government had written down the wrong date.”
Helm’s affidavit likewise shows that, before the election he
“learned that the Board Agent failed to appear” on Novem-
ber 20, and that was why the election was postponed. There
is no allegation that the Union did anything to cast asper-
sions on City Wide. Quite the contrary: City Wide’s own
evidence shows that the Union not only did not try to
exploit the situation, but that it told employees who asked
that the delay was not the employer’s fault.
Even if this case were not factually distinguishable from
Superior, as a matter of law we would not follow Superior.
The Eighth Circuit, unlike this court, reviews the decision
not to hold a hearing de novo. Id. at 550. Reviewing the
14 No. 03-2887
decision for substantial evidence, as we must under our
precedent, we owe much more deference to the Board’s de-
cision.
We conclude that a reasonable mind could find that the
issues of fact in this case were not “substantial and mate-
rial” and that a hearing was thus unnecessary. The Board
faced a close call regarding whether to grant a hearing and
thus, given our deferential standard of review, we will not
disturb that decision.
III.
The Board applied the laboratory conditions doctrine, and
its decision thus has a reasonable basis in law. Its factual
conclusions that the election provided the employees with
a fair choice and that an evidentiary hearing was not
needed are supported by substantial evidence. We therefore
enforce the Board’s order.
FLAUM, Chief Judge, dissenting. I am unable to join the
majority’s opinion because I conclude that the Board’s
acknowledged election irregularity coupled with City Wide’s
allegations of resulting irrational voting behavior are
sufficient to support a prima facie showing of objectionable
conduct, see NLRB v. Service American Corp., 841 F.2d 191,
195 (7th Cir. 1988), and that the Board’s conclusion that an
evidentiary hearing was not warranted is not supported by
substantial evidence, even in light of our deferential
standard of review.
No. 03-2887 15
The majority suggests that Board precedent recognizes a
prima facie showing of objectionable conduct by a Board
agent only in two instances; first, when election irregulari-
ties have created the potential for employee disenfranchise-
ment or second, when Board agents have engaged in
conduct that creates an inference of Board partiality. I do
not read Board precedent to be so limited.
The Board charges itself with creating conditions for
elections that are as “ideal as possible,” and it commits
itself to maintaining that standard by subjecting question-
able elections to searching administrative review. General
Shoe Corp., 77 NLRB 124, 127 (1948). According to the
Board, election conditions have been sufficiently objection-
able when, due to Board malfeasance or nonfeasance, the
election undermined the employer’s or employees’ confi-
dence in the Board’s capacity to run an fair election. For
example, the Board has found that its conduct has fallen
below the General Shoe standard when Board agents have
unexpectedly shortened the employees’ opportunity to vote.
See Nyack Hosp., 238 NLRB 257, 258-59 (1978) (setting
aside election because Board agent was over one hour late
in opening the polls); Kerona Plastics Extrusion Co., 196
NLRB 1120 (1972) (setting aside election because the Board
agent closed the polls early giving rise to prejudice against
the employer which “affected votes cast”); B & B Better
Baked Foods, Inc., 208 NLRB 493 (1974) (setting aside
election because Board agent opened the polls forty minutes
late and may have affected the result of the election). Just
as a delayed opening or premature closure of the polls
suggests that the Board has failed to comport with the
General Shoe standard, so should a complete failure to open
the polls on the scheduled election day. The result of an
abbreviated election is much like that of a cancelled
election, in that the Board agent’s unexpected deviation
from the election schedule creates uncertainty and the
potential for unsubstantiated rumor. Indeed, the harm
16 No. 03-2887
resulting from the Board’s combined failure to appear for
the November 20 election and failure to inform the employ-
ees that City Wide was not responsible for the cancellation
is strikingly similar to the harm that the Kerona Plastics
Extrusion Company claimed resulted from the Board’s
premature closure of the polls: “rumors creat[ing] an
atmosphere of confusion, bias, and prejudice against the
Employer, which affected votes case in the [later election].”
Kerona Plastics, 196 NLRB at 1120. As the Board acknowl-
edged in Kerona Plastics, an election conducted in the wake
of Board error, where employees are circulating inaccurate
rumors of employer wrongdoing, undermines the appear-
ance of a fair election and should be set aside.
City Wide has alleged that the cancellation of the Novem-
ber 20 election engendered suspicion that City Wide had
subverted the election process and that rumors led to
irrational voting. Further, City Wide has submitted five
affidavits testifying to the prejudice City Wide allegedly
suffered due to employee confusion regarding the cancel-
lation. Specifically, the branch manager testified in his
affidavit that the employees were shocked, confused, and
“pissed off” due to the postponement of the election. The
branch manager’s testimony was confirmed by the affidavits
of other City Wide employees: Casillas stated that em-
ployees were angry about the delay; Duenas stated that he
and 13 other employees were “confused and/or surprised
when we did not have a chance to vote.” In their affidavits,
Casillas and Rodriguez stated that some employees changed
their votes after the first election was postponed. Helm
testified in his affidavit that “[i]t is human nature to think
that the company somehow fixed the election process.”
Additionally, City Wide has proffered that nine other
employees would testify to the presence of rumors if the
Board ordered an evidentiary hearing.
In my view, if City Wide could establish at an evidentiary
hearing that the Board’s failure to inform City Wide’s
No. 03-2887 17
employees that their employer had not caused the cancella-
tion of the November 20 election had an effect on the
outcome of the November 26 election, City Wide would have
demonstrated sufficient objectionable conduct to merit the
setting aside of the election. See General Shoe Corp., 77
NLRB 124 (1948); B & B Better Baked Foods, Inc., 208
NLRB 493 (1974); Kerona Plastics Extrusion Co., 196 NLRB
1120 (1972). City Wide has met its burden of “rais[ing]
substantial and material factual issues” sufficient to
support a prima facie showing of objectionable conduct, see
29 CFR § 102.69(d), and it is my opinion that the Board’s
conclusion to the contrary is not entitled to our traditional
deferential approach.
Finally, I believe that NLRB v. Lovejoy Indus., Inc., 904
F.2d 397 (7th Cir. 1990) is not as instructive as the majority
suggests. In Lovejoy, the Board found that no election error
had occurred; that is, the Board concluded that the em-
ployer’s allegations of voter intimidation were insufficient
as a matter of law to state a claim for voter intimidation.
Id. at 402. In contrast, in this case, the Board has admitted
that it failed to hold a scheduled election, and it has further
acknowledged that it did not inform City Wide’s employees
that their employer was not to blame for the cancellation.
Under Board precedent and the law of this Circuit, a failure
of a Board agent to inform employee voters of their em-
ployer’s blamelessness when Board error has necessitated
a new election is an election error meriting that the election
results be set aside. NLRB v. Fresh’nd-Aire Co., 226 F.2d
737 (7th Cir. 1955). The Board has continued to recognize
the potential influence of Board error on the fairness of
elections, as is indicated by the Board’s order in this case
that “it would be preferable for Regional Offices to include
in any notice of rescheduled election a statement that the
election has been rescheduled for administrative reasons
beyond the control of the employer or the union.” City Wide
Insulation of Madison, Inc. d/b/a/ Builders’ Insulation,
18 No. 03-2887
Inc., 338 NLRB 108 (2003). Therefore, it is my judgment
that the Board’s finding that City Wide did not allege
“substantial and material factual issues” sufficient to
support a prima facie showing of objectionable conduct,
notwithstanding the Board’s last-minute cancellation of the
election and City Wide’s proffered testimony and affidavits
attesting to the resulting irrational employee voting, was in
error and was not supported by substantial evidence. I
respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-27-04