National Labor Relations Board v. Downtown Bid Services Corp.
401 U.S. App. D.C. 216
| D.C. Cir. | 2012Background
- NLRB seeks enforcement of an order finding Downtown BID committed a ULP by refusing to bargain after a union election.
- Union organized SAMs and Littlejohn led solicitation efforts; Brown and others engaged in aggressive rhetoric and threats during organizing.
- Election in July resulted in 56 votes for Union, 51 against, with one challenged ballot; Brown served as election observer.
- Board adopted ALJ findings and certified the Union in December 2010; NLRB issued ULP Decision ordering Downtown BID to recognize and bargain in April 2011.
- Issues focus on whether Brown/others were Union agents and the scope of agency, whether third-party misconduct tainted the election, and whether Board’s certification decision was supported by precedent and substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown and others were Union agents for the challenged conduct | Union argues Brown acted within Davlan scope as agent. | Downtown BID argues Brown’s actions were within Davlan’s limited scope and outside the unlawful conduct. | Yes, but only for card solicitation context; other conduct outside Davlan scope cannot be imputed. |
| Whether apparent or actual authority extended to Brown’s election-day conduct | Union contends Brown’s role as observer implied authority. | Downtown BID contends Brown lacked authority for harassment beyond card solicitation and election monitoring. | Apparent/actual authority found limited; harassment not within agency. |
| Whether third-party misconduct tainted the voting atmosphere | Union argues threats created a hostile atmosphere; the Board should rerun the election. | Downtown BID argues isolated incidents did not create a general atmosphere of fear rendering a free election impossible. | No rerun; incidents did not produce a general atmosphere of fear. |
| Whether Board’s certification was supported by precedent and substantial evidence | Union asserts Board properly credited its discretion and evidence. | Downtown BID asserts Board erred in treating conduct within scope as not binding and in not overturning election. | Board’s certification sustained; substantial evidence supports decision. |
Key Cases Cited
- Boire v. Greyhound Corp., 376 U.S. 473 (U.S. 1964) (certification review ordinarily limited to ULPr findings)
- Underwriters Labs., Inc., 323 N.L.R.B. 300 (NLRB 1997) (threats by union may not necessarily void election)
- Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559 (D.C. Cir. 1984) (agency/appearance precedents guiding evaluation)
- Davlan Engineering, 283 N.L.R.B. 803 (NLRB 1987) (solicitors of authorization cards as special agents for limited purpose)
- Janler Plastic Mold Corp., 186 N.L.R.B. 540 (NLRB 1970) (threats by union organizers and impact on elections)
- Detroit East, Inc., 349 N.L.R.B. 935 (NLR.B. 2007) (election observers as agents for certain conduct)
- Westwood Horizons Hotel, 270 N.L.R.B. 802 (NLRB 1984) (factors for assessing third-party misconduct impact)