821 F.3d 52
D.C. Cir.2016Background
- In Feb. 2013 the Teamsters Local 991 won NLRB-conducted representation elections for Durham School Services bus drivers/monitors in three Florida locations (112–74).
- Durham filed post-election objections alleging (1) the Union circulated a flyer showing employee photos and statements falsely indicating they would vote for the Union and (2) a Board Agent’s conduct (carrying the ballot box/booth to the parking lot to accommodate a disabled voter and a subsequent phone call) compromised the election.
- The parties had waived a pre-election hearing via a stipulated election agreement; Durham timely proffered affidavits in support of its objections and sought a post-election evidentiary hearing and to reopen the record.
- The Regional Director investigated, recommended overruling the objections without a hearing, and the NLRB majority affirmed under the Midland standard (no forgery; propaganda recognizable). The Board also found no evidence the Agent’s conduct tainted the election or altered votes.
- Durham refused to bargain after certification; the Board found on summary judgment that Durham unlawfully refused to bargain and ordered it to recognize and bargain with the Union. Durham petitioned for review; the court denied review and enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Union flyer misrepresentation required setting aside the election | Flyer used employee photos/quotes misrepresenting intent to vote; voters deceived; election tainted | Midland governs: Board will not disturb elections for misleading statements absent forged documents that prevent recognition as propaganda | Court upheld Board: Midland applies; no forgery; flyer recognizable as campaign material, so no basis to set aside election |
| Whether Board Agent’s conduct compromised election integrity | Moving the booth/ballot box and handling a ballot, plus Agent’s phone call, destroyed confidence and warranted a hearing | No unauthorized ballots alleged; no evidence of outcome effect; speculative harm insufficient | Court upheld Board: evidence did not raise substantial/material factual issues; no reasonable doubt as to fairness; no hearing required |
| Whether Durham was entitled to an evidentiary hearing or reopening of the record | Proffered affidavits (including later affidavit alleging possible forgery) created disputed factual issues requiring a hearing/reopen | Board accepted facts proffered but concluded they would not, as a matter of law, justify setting aside the election under governing standards | Court held Board acted within discretion: even crediting evidence, Petitioner failed to make prima facie showing to warrant a hearing or reopening |
| Whether Board properly found unlawful refusal to bargain and granted summary judgment | Certification invalid, so refusal to bargain was lawful | Board: employer refused to bargain after certification; summary judgment appropriate | Court enforced Board order: Durham violated §8(a)(5),(1) and must bargain |
Key Cases Cited
- Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127 (N.L.R.B. 1982) (Board will not set aside elections for misleading campaign statements absent forgery that prevents recognition as propaganda)
- Serv. Corp. Int’l v. NLRB, 495 F.3d 681 (D.C. Cir. 2007) (courts give Board wide discretion supervising representation elections; review asks if procedures were fair and conclusions rational)
- U-Haul Co. of Nev., Inc. v. NLRB, 490 F.3d 957 (D.C. Cir. 2007) (applies Midland to challenge based on alleged misrepresentations in campaign materials)
- Boire v. Greyhound Corp., 376 U.S. 473 (U.S. 1964) (discussion of strategy of employers refusing to bargain to obtain judicial review of Board certifications)
- AOTOP, LLC v. NLRB, 331 F.3d 100 (D.C. Cir. 2003) (objector must present evidence raising substantial and material factual issues to obtain a hearing)
- Swing Staging, Inc. v. NLRB, 994 F.2d 859 (D.C. Cir. 1993) (same)