National Labor Relations Board, Union of Needletrades, Industrial and Textile Employees, Afl-Cio, Clc, Intervenor v. Flambeau Airmold Corporation ( 1999 )

Petition for enforcement granted by published opinion. Judge Blake wrote the majority opinion, in which Judge Wilkins joined. Judge Niemeyer wrote a dissenting opinion.

OPINION

BLAKE, District Judge:

This case is before the court on the application of the National Labor Relations Board (“NLRB” or “Board”) for enforcement of its November 1997 order requiring Flambeau Airmold Corporation (“Flambeau”) to bargain with the Union "of Needletrades, Industrial, and Textile Employees, AFL-CIO, CLC (“Union”) as the exclusive collective bargaining representative of the employees at Flambeau’s manufacturing facility located in Roanoke Rapids, North Carolina. Flambeau contends that it need not bargain with the Union because the certification election in which the Union prevailed was rendered invalid by a racially inflammatory rumor that spread throughout the plant the day before the election. Because we conclude that the Board’s decision to certify the Union was reasonable and supported by substantial evidence, we enforce the Board’s order.

I.

Flambeau operates a blow molding plastics plant in Roanoke Rapids, North Carolina. On March 22, 1996, the Union filed an election petition with the NLRB seeking to represent “[a]ll production, maintenance, shipping and receiving employees” at the plant. A secret ballot election under the Board’s supervision was held at the plant on May 2, 1996. The Union won the election by 96 votes to 94 votes. Flambeau filed timely objections to conduct affecting the results of the election. Pertinent to this proceeding, Flambeau contended that the Union had “made objectionable racial appeals during the initial pre-election period which interfered with the laboratory conditions necessary for a free and fair election.” A hearing was held on June 12-13, 1996, before an NLRB Hearing Officer in order to resolve the issues raised by Flambeau’s objections.

The evidence developed at the hearing revealed that on May 1, 1996, the day before the election, a rumor began to circulate among Flambeau’s employees to the effect that during a supervisor’s meeting held that morning, one of the white managers had referred to employees as “niggers.” Two-thirds of Flambeau’s approximately 200 employees are African-American, and the Union campaign had included what could be interpreted as appeals to racial solidarity.¹ The Hearing Officer found that the rumor had spread widely throughout the plant prior to the election, but that neither the source of the rumor nor its truth or falsity could be determined. The Hearing Officer further found that both pro-company and pro-Union employees, as well as both white and black employees, had contributed to the rumor’s spread.

Flambeau’s position is that this patently offensive rumor “made racial hatred an issue in the election” and “so in£lame[d] the racial feelings” of the employees as to render the election fundamentally unfair. The Hearing Officer below disagreed. Applying a third-party conduct standard, the Hearing Officer concluded that, although the rumor “would upset any socially] conscious individual,” it had not “destroyed the laboratory conditions necessary for a free and fair election” or “aggravated] the situation to the point of rendering a free election impossible.” Accordingly, he recommended that Flambeau’s objections to the election be overruled and that a certification of representative be issued. The Board adopted the Hearing Officer’s findings and recommendations and certified the Union on April 8, 1997. In its decision, the Board held that “the rumored remark, and the circulation of the rumor on the day of the election, did not so inflame and taint the atmosphere in which the election was held that a reasoned basis for choice was impossible.”²

Thereafter, in order to obtain judicial review of the Board’s decision, Flambeau refused to bargain with the Union. The Union responded by filing an unfair labor practices charge against the company. On November 7, 1997, the NLRB issued a Decision and Order finding that Flam-beau’s refusal to bargain with the Union violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5), (1). Since Flambeau continues to refuse to bargain with the Union on the grounds that it was improperly certified, the Board now seeks enforcement of its November 1997 order.

II.

The results of a Board-supervised representation election are presumptively valid. NLRB v. Columbia Cable T.V. Co., 856 F.2d 636, 638 (4th Cir.1988). This presumption reflects Congress’s decision to “entrust[ ] the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). We may not substitute our judgment for that of the Board, even if we would, have made a different decision had the matter been before us de novo. So long as the Board’s decision is reasonable and based upon substantial evidence in the record considered as a whole, it must be upheld. See 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

“The Board’s stated goal in regulating the conduct of representation elections is to.‘provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.’ ” Case Farms of North Carolina, Inc. v. NLRB, 128 F.3d 841, 844 (4th Cir.1997) (quoting General Shoe Corp., 11 N.L.R.B. 124, 127 (1948), enforced, 192 F.2d 504 (6th Cir.1951)). Although the Board strives to maintain “laboratory conditions,” a union election “by its nature is a heated affair,” NLRB v. Herbert Halperin Distrib. Corp., 826 F.2d 287, 290 (4th Cir.1987), and must be evaluated “in the light of realistic standards of human conduct,” Case Farms, 128 F.3d at 844 (citation omitted).

Where pre-election conduct is alleged to have invalidated a representation election, the party seeking to overturn the election, in this case Flambeau, bears the heavy burden of proving by specific evidence not only that campaign improprieties occurred, but also that they prevented a fair election. NLRB v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th Cir.1987). In evaluating such a challenge, less weight will be afforded the comments and conduct of third parties than those of the employer or union. Herbert Halperin, 826 F.2d at 290.³ In Herbert Halperin, which involved alleged threats of violence and job loss as well as “appeals to racial fears,” we held that an election will be set aside for third-party misconduct “only if ‘the election was held in a general atmosphere of confusion, violence, and threats of violence, such as might reasonably be expected to generate anxiety and fear of reprisal, to render impossible a rational uncoereed expression of choice as to bargaining representative.’ ” Id. (quoting Methodist Home v. NLRB, 596 F.2d 1173, 1183 (4th Cir.1979)). This is an objective test that does not require the Board or the court to examine the individual thought processes of every employee who may have been influenced by the alleged third-party misconduct.

In this case, the Board found that neither Flambeau nor the Union was responsible for starting the unfortunate rumor at issue. Although supporters of both sides contributed to its circulation around the plant, this is an inadequate basis for attributing the rumor to either party. The Board’s decision to treat the rumor as third-party misconduct, therefore, was reasonable and supported by substantial evidence. In light of the test for third-party misconduct enunciated in Herbert Halpe-rin, supra, we agree with the Board that the rumor “did not so inflame and taint the atmosphere in which the election was held that a reasoned basis for choice was impossible.” We acknowledge, as did the Board, that the vote was close, and that there was indirect evidence that one employee’s vote may have been affected by the rumor. That is not sufficient, however, to invalidate the Board’s conclusion, based on all the evidence, that the rumor did not make a free and fair election impossible.

Contrary to the dissent, we believe that the disposition of this case is directly controlled by our decision in Herbert Halpe-rin. In Herbert Halperin, the company challenged the Board’s decision to certify the union following an election “in which racial appeals and animosities allegedly played some part.” Id. at 288. Among the third-party misconduct which occurred in that ease were the comments “white sons-of-bitches” and “goddamn white boys” made by black pro-union employees about pro-management white employees. Id. at 289. The company argued that these and other similar comments warranted setting aside the election.⁴ This court disagreed. While we condemned the employees’ use of racial epithets, we nonetheless held that the comments did not “suggest an atmosphere inflamed by racial tension” or “reflect the combination of union involvement and racial, ethnic or religious prejudice that requires an election to be overturned.” Id. at 292-93. We think a similar conclusion is required under the circumstances of the present case.

Accordingly, we hold that the Board’s decision to certify the Union was reasonable and supported by substantial evidence in the record as a whole. The Board’s petition for enforcement of its November 1997 order is granted.

IT IS SO ORDERED

1 . As the dissent acknowledges, however, up until May 1, 1996, there was no evidence of any explicit racial appeals and no suggestion that the employees could not have exercised an uninhibited free choice.

2 . We believe the dissent is in error when it asserts that in reaching this decision, the Board did not consider various factors that the Board traditionally has applied when de-lermining the validity of representation elections, including the closeness of the vote and the timing of the misconduct in relation to the election. See Joint Appendix, p. 382.

3 . Indeed, the dissent acknowledges the many valid reasons why it is essential to impose a higher standard for setting aside an election where third-party misconduct is involved, rather than conduct attributable to the party who may be benefitted thereby. As explained in Herbert Halperin: “The obvious reasons are that third parties are not subject to the deterrent of having an election set aside, and third party statements do not have the institutional force of statements made by the employer or the union.” 826 F.2d at 290.

4 . We cannot agree with the dissent that the comments made in Herbert Halperin are any less an appeal to racial prejudice or an expression of bigotry than the use of the offensive epithet in this case.