Ashland Facility Operations, LLC v. National Labor Relations Board
701 F.3d 983
4th Cir.2012Background
- Ashland Facility Operations petitions for review of an NLRB order requiring bargaining and the Board cross-petitions for enforcement.
- Ashland challenges Khalfani, Virginia NAACP executive director, as a source of racially inflammatory remarks influencing the election.
- A representation election on November 3, 2010 certified the Union as the exclusive bargaining representative for a unit of CNAs and related staff.
- Pre-election statements by Khalfani and NAACP coverage were publicized; Ashland argues these tainted the election.
- Ashland asserted the Virginia NAACP was an agent or close ally of the Union; the Board held no agency relationship existed.
- The court reviews whether the election results can be invalidated due to third-party inflammatory remarks and prepetition conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Virginia NAACP an agent of the Union? | Ashland asserts an agency relationship based on involvement in organizing. | NLRB contends no agency relationship existed; third parties lack controlling authority over the election. | No agency; Virginia NAACP not the Union's agent. |
| Should Sewell standards apply to third-party inflammatory remarks? | Ashland seeks heightened scrutiny under Sewell for inflammatory, racially charged third-party remarks. | NLRB argues Sewell is inapplicable to third-party remarks and burdens the wrong party. | Sewell not extended to third-party inflammatory remarks; standard not met. |
| Did the inflammatory remarks by Khalfani render the election invalid? | Ashland contends remarks tainted the critical period and undermined free choice. | NLRB finds remarks not inflammatory enough or not during the critical period to invalidate. | Election not invalidated by prepetition remarks; not sufficiently persuasive. |
| Can prepetition conduct be used to set aside an election when not similar to postpetition conduct? | Ashland argues prepetition conduct adds meaning to related postpetition conduct. | NLRB requires similar postpetition misconduct to warrant setting aside the election. | Prepetition remarks not linked to postpetition misconduct; election stands. |
| Was Ashland's subpoena scope and due process during ALJ proceedings proper? | Ashland claimed ALJ limited subpoena scope and failed to enforce subpoenas sua sponte. | NLRB asserts broad discovery discretion; no due process violation. | ALJ acted within discretion; due process not violated. |
Key Cases Cited
- NLRB v. Flambeau Airmold Corp., 178 F.3d 705 (4th Cir. 1999) (representation election presumptively valid; evidence standard)
- Sam's Club v. NLRB, 173 F.3d 233 (4th Cir. 1999) (substantial evidence standard; mixed questions of law and fact)
- Herbert Halperin Distrib. Corp. v. NLRB, 826 F.2d 287 (4th Cir. 1987) (third-party coercion and atmosphere considerations)
- Case Farms of N.C., Inc. v. NLRB, 128 F.3d 841 (4th Cir. 1997) (racial prejudice appeals and legitimate worker concerns)
- Ky. Tenn. Clay Co. v. NLRB, 295 F.3d 436 (4th Cir. 2002) (apparent agency and campaign involvement analysis)
- Did Building Services, Inc. v. NLRB, 915 F.2d 490 (9th Cir. 1990) (third-party appeals to prejudice and atmosphere threshold)
- Baltimore Luggage Co. v. NLRB, 387 F.2d 744 (4th Cir. 1967) (NAACP endorsement as not invalidating election)