NLRB v. Superior of MO ( 2003 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1768
    ___________
    National Labor Relations Board,          *
    *
    Petitioner,                 *
    * Petition for Review or Enforcement
    v.                                 * of an Order of the National
    * Labor Relations Board.
    Superior of Missouri, Inc.,              *
    *
    Respondent.                 *
    ___________
    Submitted: September 8, 2003
    Filed: December 9, 2003
    ___________
    Before LOKEN, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.
    ___________
    LOKEN, Chief Judge.
    On June 19, 1998, a National Labor Relations Board agent overslept, forcing
    the postponement of a 6:00 a.m. election to determine whether Teamsters Local
    Union No. 682 would represent the drivers and helpers employed by Superior of
    Missouri, Inc. The election was held one week later, and the Union prevailed. The
    Board certified the Union, rejecting Superior’s objections to the election without
    holding an evidentiary hearing. Superior refused to bargain with the certified Union
    and petitioned this court for review of the resulting unfair labor practice order, which
    is the proper way to obtain judicial review of an otherwise unappealable certification
    order. See Boire v. Greyhound Corp., 
    376 U.S. 473
    , 477 (1964). We denied
    enforcement of the Board’s unfair labor practice order and remanded, concluding that
    the Board erred in overruling Superior’s objections to the election without a hearing.
    NLRB v. Superior of Mo., Inc., 
    233 F.3d 547
     (8th Cir. 2000).
    On remand, following an evidentiary hearing, the Board again rejected
    Superior’s objections to the election and reaffirmed its order that Superior violated
    
    29 U.S.C. §§ 158
    (a)(1) and (5) by refusing to bargain with the certified Union.
    Superior of Mo., Inc., 338 N.L.R.B. No. 69 (Nov. 20, 2002). Superior again seeks
    judicial review, arguing that the Board erred in certifying the Union because the
    election was fatally flawed by the Board agent’s misconduct. After careful review of
    the hearing record, we conclude that the Board’s findings and conclusions upholding
    the election are supported by substantial evidence on the record as a whole.
    Therefore, we enforce the Board's unfair labor practice order.
    I. The Results of the Evidentiary Hearing
    A party that timely objects to an election is entitled to an evidentiary hearing
    if it “makes a prima facie showing of substantial and material facts which, if true,
    warrant setting aside the election.” Rosewood Care Ctr. of Joliet, Inc. v. NLRB, 
    83 F.3d 1028
    , 1031 (8th Cir. 1996). In the first appeal, we concluded that Superior had
    made such a showing for three reasons. First, Superior presented evidence that
    employees who gathered to vote in the first election were angry when it was
    cancelled, and a rumor spread that Superior had paid the Board not to show up.
    Superior alleged that, despite this prejudicial atmosphere, the Board agent unilaterally
    rescheduled the election without measuring the impact of his blunder and without
    consulting the parties who had agreed to the June 19 scheduling. Second, the record
    contained no evidence that the Union had attempted to explain why the June 19
    election was canceled, raising the possibility that the Union had fueled the rumor or
    had at least taken advantage of its prejudicial impact on Superior. Third, Superior
    presented employee affidavits stating that some number of bargaining unit employees
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    changed their vote after the first election was cancelled. See 
    233 F.3d at 552
    . We
    now review how these issues played out at the evidentiary hearing on remand.
    1. The hearing established that the Board agent did not unilaterally reschedule
    the election. On June 19, the agent telephoned Superior some fifty minutes into the
    scheduled election period to explain that he had overslept due to a power outage. The
    agent asked Superior’s General Manager, Kenneth McAfee, to recall those employees
    who had left the election site so the election could go forward that day. McAfee
    refused. The Board agent then telephoned Superior’s attorney, apologized for
    oversleeping, and suggested the election be held one week later. After consulting
    with his client, counsel called the Board agent and agreed to the June 26 date. The
    Board agent then posted new election notices that afternoon, without objection by
    Superior. Three days later, Superior distributed a letter to employees explaining what
    had happened, apologizing for any inconvenience, and encouraging all employees to
    vote in the rescheduled election.1
    2. At the hearing Union representative Timothy G. Ryan testified that, on the
    morning of June 19, he heard someone in a group of about fifteen employees say that
    Superior had bought off the Board. Ryan testified:
    1
    The same attorneys, Michael Linihan and Stephen Maule, represented Superior
    during the election and in both appeals to this court. The hearing testimony
    established that Linihan and Maule participated in Superior’s decision to accept June
    26 as the date of the rescheduled election. Thus, these attorneys misrepresented a
    material fact when they stated in their brief in the prior appeal that the election was
    “unilaterally rescheduled by the Board.” At oral argument, counsel suggested that
    Superior had no alternative but to accept the new date suggested by the Board agent.
    Even if true, that does not excuse counsel’s material misrepresentation to this court.
    However, the Board has not moved for sanctions on the ground that counsel procured
    an evidentiary hearing with a knowing misrepresentation of fact. We condemn
    counsel’s conduct but elect in this instance not to pursue the question of sanctions sua
    sponte. See generally Chambers v. NASCO, Inc. 
    501 U.S. 32
    , 44 (1991).
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    I stopped dead in my track[s] as I heard it and I said wait a minute, it is
    unheard of. I told you from the beginning that the National Labor
    Relation[s] Board is a neutral party in this election, the National Labor
    Relation[s] Board cannot be bought off. It is unfortunate that, through
    an act of God, the storm knocked out this gentleman’s [the Board
    agent’s] electricity, putting him in the position of his alarm not going
    off. Guys, we will have this election just as soon as possible. Please get
    it out of your mind.
    Another employee confirmed that this conversation took place. Thus, the Union did
    not fuel the employee rumor that Superior was responsible for cancelling the election,
    nor is there evidence the Union attempted to take advantage of this rumor in the
    rescheduled election. Superior complains that the Union and the Board agent left
    Superior with the task of explaining to employees why the election had been
    rescheduled. But there is no evidence that Superior asked the Board agent to
    supplement his standard notice of the rescheduled election with an explanation or
    asked the Union for additional help in combating the alleged rumor.
    3. At the hearing, Superior failed to prove either that eligible employees were
    disenfranchised by the election rescheduling, or that the Board agent’s oversleeping
    influenced the employees who voted at the rescheduled election. The employees
    were given one week’s notice of the rescheduled election. At the June 26 election,
    63 of 69 eligible employees voted; 41 voted in favor of the Union, 20 voted against
    the Union, and two ballots were challenged. At the evidentiary hearing, one Superior
    driver testified that he was unhappy about the delay on June 19 but did not testify that
    he blamed Superior or altered his vote. Another driver testified that she heard an
    employee speculate on the morning of June 19 that Superior may have paid the Board
    not to show. And General Manager McAfee testified that, on June 19, he was
    concerned that angry employees would blame Superior for the failure of the Board
    agent to appear that morning. But there was no testimony supporting Superior’s pre-
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    hearing allegation that employees changed their votes to support the Union as a result
    of the election rescheduling.
    II. Discussion
    On appeal, Superior challenges the Board’s decision to uphold the election on
    two distinct grounds. In considering these election issues, it is important to identify
    the standard applied by the Board as well as our own standard of judicial review.
    First, Superior argues that the Board agent’s misconduct disenfranchised
    voters. This issue arises most commonly when a Board agent alters the time period
    of a scheduled election, for example, by opening the polls late or closing them early.
    In such cases, the Board has often concluded that it must set aside the election
    because it cannot determine how many employees may have been excluded or
    otherwise affected. See Nyack Hosp., 
    238 N.L.R.B. 257
     (1978); B&B Better Baked
    Foods, Inc., 
    208 N.L.R.B. 493
     (1974); Kerona Plastics Extrusion Co., 
    196 N.L.R.B. 1120
     (1972). Superior attempts to come within the purview of these cases by labeling
    the election rescheduling as a one hundred sixty-eight hour delay. But like the Board,
    we conclude that these cases are “inapposite.” The Board agent did not unexpectedly
    reduce the employees’ opportunity to vote. The employees were given ample notice
    of the rescheduled election, and the vast majority of eligible employees voted on June
    26. There was simply no evidence at the hearing that any employee was
    disenfranchised by the Board agent’s oversleeping.
    Second, Superior argues that the Board agent’s misconduct destroyed the
    “laboratory conditions” essential for a fair election. In considering objections of this
    kind, the Board focuses primarily on whether an agent’s conduct was consistent with
    the impartiality required for the Board to conduct a fair election:
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    The Board in conducting representation elections must maintain and
    protect the integrity and neutrality of its procedures. The commission
    of an act by a Board Agent conducting an election which tends to
    destroy confidence in the Board’s election process, or which could
    reasonably be interpreted as impugning the election standards we seek
    to maintain, is a sufficient basis for setting aside that election.
    Athbro Precision Eng’g Corp., 
    166 N.L.R.B. 966
    , 966 (1967) (subsequent history
    omitted). We review the Board’s application of that standard in a particular case for
    abuse of “the wide degree of discretion vested in it by Congress regarding
    representation matters.” Millard Processing Servs. v. NLRB, 
    2 F.3d 258
    , 261 (8th
    Cir. 1993) (quotation omitted), cert. denied, 
    510 U.S. 1092
     (1994); see also Sioux
    Prods., Inc. v. NLRB, 
    703 F.2d 1010
    , 1013-16 (7th Cir. 1983); NLRB v. Fenway
    Cambridge Motor Hotel, 
    601 F.2d 33
    , 36-37 (1st Cir. 1979).
    In this case, the Board agent did nothing inconsistent with the Board’s duty of
    impartiality when he overslept and then negotiated a new election date with the
    parties. Superior argues that the Board agent’s failure to explain to employees that
    the Board caused the first election to be canceled was both unfair to Superior and an
    impermissible delegation of “nonminor official election duties.” North of Mkt.
    Senior Servs., Inc. v. NLRB, 
    204 F.3d 1163
    , 1168 (D.C. Cir. 2000). We disagree.
    First, the Board agent had no affirmative duty under the Board’s election procedures
    to provide such an explanation. A recent Board decision noted 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., 338
    N.L.R.B. No. 108 (Feb. 7, 2003). We agree with the admonition, but it does not
    without more establish an abuse of discretion by the Board in this case. In North of
    Market, the Board agent delegated an election duty to the union in a manner that
    compromised the integrity of the election because it “may have given the impression
    that the Board had ceded significant authority to the Union over the conduct of the
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    election.” 
    204 F.3d at 1169
    . By contrast, the Board agent’s conduct in this case did
    not cast doubt on either the Board’s neutrality or the integrity of the election.
    Second, like the ALJ, we find Superior’s claim of resulting unfairness to be
    substantially overblown. In the week between June 19 and June 26, Superior never
    asked the Board agent to do anything after he posted the notice of the rescheduled
    election. Rather than urge the Board or the Union to explain why the election had
    been rescheduled, Superior distributed a letter to employees explaining the situation,
    assuring them it “certainly was not due to any fault of your company,” and
    encouraging them to vote on June 26. Absent evidence of Union misconduct, this
    looks like an employer’s tactical decision in a competitive election environment.
    Superior nonetheless argues that its evidence of employee anger on June 19 and
    of an employee rumor that Superior had paid the Board not to hold the election are
    sufficient reason to set aside the election. But at the hearing, Superior introduced
    minimal evidence of employee displeasure on June 19, and no evidence suggesting
    that any voter anger on June 19 carried over to June 26 and affected the election. The
    Board’s administrative law judge found that Superior failed to call witnesses who
    were directly affected and part of the potential bargaining unit, that the rumor was not
    attributable to any actions of the Union, and that “the impact of the ‘rumor’ was
    negligible at best.” These findings are supported by substantial evidence. Based on
    these findings, the Board concluded that the employee rumor did not warrant setting
    aside the election, like the rumor in Alladin Plastics, Inc., 
    182 N.L.R.B. 64
     (1970).
    We agree that the facts developed at the hearing make the proven impact of the
    employee rumor in this case virtually indistinguishable from that of the rumor in
    Alladin Plastics. Accordingly, the Board did not abuse its discretion in declining to
    set aside the election on this ground. See Deffenbaugh Indus., Inc. v. NLRB, 
    122 F.3d 582
    , 586-87 (8th Cir. 1997); Millard, 
    2 F.3d at 261
     (the party challenging an
    election must “show by specific evidence not only that improprieties occurred, but
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    also that they interfered with employees’ exercise of free choice to such an extent that
    they materially affected the election results”).
    For the foregoing reasons, we grant the Board’s petition to enforce.
    ______________________________
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