GADecatur SNF LLC v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1435 September Term, 2021
FILED ON: NOVEMBER 30, 2021
GADECATUR SNF LLC, D/B/A EAST LAKE ARBOR,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
THE RETAIL, WHOLESALE AND DEPARTMENT STORE UNION-SOUTHEAST COUNCIL,
INTERVENOR
Consolidated with 20-1438
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Before: ROGERS, MILLETT and PILLARD, Circuit Judges
JUDGMENT
The court considered this petition for review and cross-application for enforcement on the
record from the National Labor Relations Board (Board) and on the briefs filed by the parties. See
FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j). The court has afforded the issues full consideration
and determined they do not warrant a published opinion. See D.C. CIR. R. 36(d). For the reasons
stated below, it is hereby
ORDERED AND ADJUDGED that the petition for review be DENIED and the Board’s
cross-application for enforcement be GRANTED.
GADecatur SNF LLC d/b/a East Lake Arbor (GADecatur) operates a skilled nursing
facility in Georgia. On November 12, 2019, a Board-supervised, secret-ballot election took place
at the facility to determine whether the Retail, Wholesale and Department Store Union-Southeast
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Council (the Union) would represent a bargaining unit of 48 nursing, activity, and maintenance
staff members. The election took place in a pair of two-hour polling sessions, one in the morning
and one in the afternoon. Approximately fifteen minutes before the end of the afternoon session,
Tabatha Martin, an employee who GADecatur had discharged days before the election, arrived at
the facility to vote. Martin’s termination was the subject of a then-pending unfair labor practice
charge. Hearing Officer Report 3, A. 99; Regional Director Decision 3 n.2, A. 107 n.2. Because
the charge remained under investigation, Martin was legally entitled to vote subject to challenge.
Hearing Officer Report 3 n.3, A. 99 n.3; see, e.g., F.L. Smithe Mach. Co., 305 N.L.R.B. 1082(1992) (affirming that unlawfully discharged employees’ challenged votes should be opened and
counted); Ace Letter Serv. Co., 187 N.L.R.B. 581, 581 (1970) (holding that “[t]he Board’s
challenge procedure generally guarantees the right to every individual who asserts other than a
totally frivolous claim to employee status to appear at the polls and cast a ballot” subject to the
Board’s resolution of an employer’s challenge, and “[t]he Employer, by usurping the Board’s
authority to make that determination, interfered with our orderly election processes”); see also 29
C.F.R. § 102.64 (2020) (providing that the Regional Director ordinarily determines voter eligibility
before the election, but that parties may agree to defer resolution of such disputes by permitting
“disputed employees to vote subject to challenge”).
The facility’s administrator, Lesly Gervil, and GADecatur’s attorney, John Chobor,
nonetheless barred Martin from voting and turned her away from the facility. Martin returned
about ten minutes later, accompanied by four Union representatives, in another attempt to cast her
vote. A GADecatur employee admitted them through the facility’s locked door. An argument
ensued between the parties over Martin’s voter eligibility. Gervil and Chobor demanded that
Martin and the Union representatives leave or they would call the police; the Union demanded that
Martin be allowed to vote. Representatives on both sides raised their voices, and the arguing
people “drifted down” the facility’s hallway from the reception desk to just outside of the voting
room. Hearing Officer Report 4, A. 100; Regional Director Decision 3, A. 107. The entire dispute
lasted about five minutes, until the end of the election, at which point Gervil and Chobor agreed
to let Martin vote subject to challenge. The final vote tally was close: The Union won by five
votes, five employees did not vote, and there were four challenged ballots, including Martin’s.
GADecatur objected to the election. A Hearing Officer conducted an evidentiary hearing
and recommended upholding the election after finding that the Union’s conduct “did not
reasonably tend to interfere with voters’ free choice.” Hearing Officer Report 5, A. 101; accord
7, A. 103. The Acting Regional Director agreed and thus certified the Union as the representative
of the appropriate bargaining unit. Regional Director Decision 8-9, A. 112-13. The Board
affirmed. When GADecatur then refused to bargain with the Union, the Board’s General Counsel
filed an unfair labor practice complaint. The Board granted summary judgment in favor of the
Union. GADecatur timely petitioned this court for review and the Board cross-petitioned for
enforcement of its order. See 29 U.S.C. § 160 (e), (f).
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The Board has discretion in reviewing elections, and our court overturns Board decisions
only in “the rarest of circumstances.” Am. Bottling Co. v. NLRB, 992 F.3d 1129, 1140 (D.C. Cir.
2021) (quoting N. of Market Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir. 2000)).
“We will uphold the Board’s decision unless it acted arbitrarily or otherwise erred in applying
established law to the facts at issue, or if its findings are not supported by substantial evidence.”
PruittHealth-Virginia Park, LLC v. NLRB, 888 F.3d 1285, 1292 (D.C. Cir. 2018) (internal
quotation marks and citations omitted). Elections must maintain laboratory conditions as nearly
as possible to determine employees’ “uninhibited desires” regarding their representation.
Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559, 1562 (D.C. Cir. 1984);
see also PruittHealth, 888 F.3d at 1292. Neither party may “interfere with, restrain, or coerce
employees” in a way that “has the tendency to interfere with employees’ freedom of choice.”
PruittHealth, 888 F.3d at 1292 (citations omitted); see also Cambridge Tool & Mfg. Co., 316
N.L.R.B. 716, 716 (1995). “[T]he party challenging the results of a Board-certified election . . .
carries a heavy burden of showing the election’s invalidity.” Antelope Valley Bus Co., Inc. v.
NLRB, 275 F.3d 1089, 1095 (D.C. Cir. 2002) (internal quotation marks and citations omitted).
In deciding whether objected-to conduct tended to interfere with employees’ free choice,
the Board balances several objective factors:
(1) the number of incidents; (2) the severity of the incidents and whether they were
likely to cause fear among the employees in the bargaining unit; (3) the number of
employees in the bargaining unit subjected to the misconduct; (4) the proximity of
the misconduct to the election; (5) the degree to which the misconduct persists in
the minds of the bargaining unit employees; (6) the extent of dissemination of the
misconduct among the bargaining unit employees; (7) the effect, if any, of
misconduct by the opposing party to cancel out the effects of the original
misconduct; (8) the closeness of the final vote; and (9) the degree to which the
misconduct can be attributed to the party.
Taylor Wharton Div. Harsco Corp., 336 N.L.R.B. 157, 158 (2001); see Pac. Coast Sightseeing
Tours & Charters, Inc., 365 N.L.R.B. No. 131, slip op. at 10 (Sept. 18, 2017); Cedars-Sinai Med.
Ctr., 342 N.L.R.B. 596, 597 (2004); Avis Rent-A-Car Sys., Inc., 280 N.L.R.B. 580, 581 (1986).
In the Board’s analysis, some factors here plainly favored one side or the other. It
reasonably found factor 8, the closeness of the tally, and factor 4, the argument occurring during
the election directly outside of the voting room, in GADecatur’s favor. Hearing Officer Report 6,
A. 102; Regional Director Decision 5-6, A. 109-10. Conversely, the Board weighed in favor of
upholding the election result the single argument’s brevity (factor 1) and the fact that it occurred
at the end of the day after virtually all employees had voted, minimizing any potential effects from
persistence in voters’ minds (factor 5) or dissemination among unit employees (factor 6). Hearing
Officer Report 6, A. 102; Regional Director Decision 4, A. 108.
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Regarding factor 2, GADecatur insists that the “loud, public argument” was sufficiently
“fear-inducing” to “disincline[]” potential voters to “enter the fray if another potential voter’s
eligibility was being questioned in a loud and hostile manner.” GADecatur Br. at 19. But the
Board reasonably concluded that the hallway dispute concerned a narrow issue involving only one
person, and was thus unlikely to affect the voting unit. Hearing Officer Report 5, A. 101 (“[A]n
argument between the parties regarding whether a discharged employee is allowed to vote is
unlikely to cause fear among employees in the voting unit.”); Regional Director Decision 4, A.
108. GADecatur objected that Martin had “engaged in an outburst” that “intimidated other eligible
voters and destroyed the laboratory conditions requisite to a free and fair election.” GADecatur
Br. at 9 n.3. Yet the Hearing Officer found that the employer’s representatives similarly raised
their voices during the argument. Hearing Officer 4, A. 100; see Regional Director Decision 8, A.
112.
GADecatur emphasizes that many employees saw the dispute and understood it to show
GADecatur powerless in the face of the Union (factor 3). GADecatur Br. at 24-26. But the Board
permissibly found the record showed otherwise. GADecatur highlights Gervil’s testimony before
the Hearing Officer that employees witnessed the argument so votes might have been affected.
But in testimony the Board found “vague” and lacking credibility—a determination to which we
defer, see PruittHealth, 888 F.3d at 1294—Gervil could not say if or how many eligible voters
were present. Regional Director Decision 4, 6-7, A. 108, 110-11. Both Gervil and Martin testified
that they did not see anyone enter, leave, or approach the voting room during the dispute. The
Hearing Officer ultimately found that there “was no testimony or evidence presented that any
eligible voter was unable to vote or intimidated away from voting due to the alter[c]ation between
the parties.” Hearing Officer Report 6, A. 102.
GADecatur also contends that Martin and the Union representatives were trespassers
whose refusal to leave the premises created the appearance that the employer was powerless to
protect its own legal prerogatives. But the finding that GADecatur unlocked the facility’s door
and permitted the Union entry undercuts its trespass claim. Hearing Officer Report 4, A. 100;
Regional Director Decision 3, A. 107; see Gervil Testimony 33:6-23, A. 38. And GADecatur itself
engaged in misconduct: Its representatives attempted to block Martin from the polls despite her
right to cast a ballot subject to challenge. GADecatur’s choice to engage in a verbal and physical
standoff during the election rather than to quietly allow Martin to vote subject to challenge was at
least partly to blame: As the Hearing Officer found, it was “unlikely that the altercation would
have happened at all if the Employer had allowed the eligible voter access to the polling location
in order to vote” while still preserving its objection. Hearing Officer 6, A. 102; see also Regional
Director Decision 8, A. 112 (“[I]t is not immaterial that the altercation was partially caused by the
Employer’s refusal to allow an eligible voter to vote.”). It was thus reasonable for the Board to
treat the election result as unaffected by Avis factors 7 and 9.
In sum, the Hearing Officer considered the “limited duration” of the dispute involving only
one voter’s eligibility, the lack of any trespass or other unlawful action, the engagement of both
parties in the potentially disruptive behavior, and the small-if-unknown number of unit employees
aware of or affected by the argument. Hearing Officer Report 5-6, A. 101-02; Regional Director
Decision 1, 4-5, A. 105, 108-09. Weighed against the close vote count and the incident occurring
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during the election, the Hearing Officer reasonably held that the Union’s conduct “did not
reasonably tend to interfere with the voters’ free choice in the election.” Hearing Officer Report
5, A. 101; accord Report 7, A. 103; see also Regional Director Decision 8-9, A. 112-13.
GADecatur nonetheless argues that three cases should have dictated a ruling in its favor:
Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981 (D.C. Cir. 2001); Electric Hose & Rubber Co.,
262 N.L.R.B. 186 (1982); and Performance Measurements Co., 148 N.L.R.B. 1657 (1964). But,
as the Board held, “in those cases the party representative(s) were near the entrance to the voting
area for most, if not all, of the voting session.” Hearing Officer Report 6, A. 102; see also Regional
Director Decision 8, A. 112. This court explained in Nathan Katz Realty that “Electric Hose and
Performance Measurements seem to stand for the proposition that a party engages in objectionable
conduct sufficient to set aside an election if one of its agents is continually present in a place where
employees have to pass in order to vote.” 251 F.3d at 993 (emphasis added). In Nathan Katz, we
vacated the Board’s decision because “during the election two Union agents were in a car parked
within twenty feet of” the side door of a church in which the voting was taking place, and within
a “25-yard no-electioneering zone.” Id. at 991. The Union agents “motioned, gestured, and honked
at the employees as they passed the car.” Id. The Union’s conduct was continuous, and the
employer engaged in no counterbalancing misconduct. We find those decisions readily
distinguishable from this case.
At bottom, GADecatur’s claim rests on an attenuated chain of inferences that (1) the five
employees who decided not to vote were planning to do so during the last five minutes of the
election, (2) they actually witnessed the argument over Martin’s right to vote, and (3) they were
deterred from voting because they were intimidated by the Union’s role in arguing with
GADecatur for Martin’s right to cast a vote subject to challenge. Substantial evidence supports
the Board’s decision not to rely on a series of inferences lacking support. Given the tenuous
character of GADecatur’s challenge and the great deference we owe the Board’s well-supported
findings, we reject the petition as baseless.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after resolution of any timely
petition for rehearing or petition for rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R.
41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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