Lead Opinion
Opinion for the Court filed by Circuit Judge BROWN.
The National Labor Relations Board seeks enforcement of an order finding Downtown BID, a non-profit business improvement corporation, committed an unfair labor practice (ULP) when it refused to bargain with the International Association of Machinists and Aerospace Workers (the Union) following an employee election. Downtown BID (the Company) contends agents or supporters of the Union unlawfully threatened and harassed employees and otherwise engaged in electioneering that interfered with the fairness and outcome of the election. The Board overruled these objections and certified the Union. Because the Board’s findings and conclusions are supported by substantial evidence and consistent with Board precedent, we grant the Board’s application.
I
Around March 2009, in response to an initial overture by employee Jennings Brown, the Union began an organizing campaign to represent the Company’s approximately 117 safety and maintenance workers (SAMs). Union officials, including Roosevelt Littlejohn, the Union’s business representative and the main organizer of the Downtown BID campaign, solicited union authorization cards from the SAMs. Littlejohn also held six open informational meetings where he presided alone, discussing the Union and answering questions. Starting in June, Brown and several of his coworkers volunteered to support the Union, joined an organizing committee, and began to solicit authorization cards as well. Still, all of the Union’s literature and all of the authorization cards were drafted by Littlejohn and had only Littlejohn’s name and contact information on them.
Brown and some of his Union-supporting co-workers soon took the campaign in an aggressive and deeply troubling direction. In separate incidents, a few of these pro-Union employees threatened several of their co-workers, telling them they would be fired if they did not support the Union. Some of those employees were so disturbed by these threats that they contacted the Company’s administrative department; the Company reassured them that neither Brown nor the Union could get them fired and that no one would be fired based on the outcome of the election. Some pro-Union SAMs also harassed coworkers with profanity and racial epithets, though one of those harassed also testified such language was unfortunately not uncommon in the workplace. Finally, a poster in an employee locker room was anonymously defaced with profane and racist language. According to Littlejohn, neither he nor the Union had any knowledge that employees were campaigning for the Union in an aggressive or harassing manner. He also had no knowledge of the threats of
When voting ultimately took place that July, Brown was selected by the Union as its election observer — simply because, as Littlejohn testified, “[w]e couldn’t get anybody else.” ALJ Hearing Tr. at 248. Brown greeted voters and approached one as if to embrace him or her, but he was admonished not to by the Board’s election observer and returned to his seat. One other potential voter was reported to have turned and left once he saw Brown in the room, and another employee also testified she received a “severe look” from Brown, though she voted freely anyway. Id. at 154, 158-60. Brown also took a phone call during a break in the voting and identified the Company’s observer by name to the person with whom he was speaking. When the voting ended, 56 ballots had been cast in favor of the Union and 51 against the Union. There was one challenged ballot that was not resolved.
The Company timely filed objections to the election, arguing that the narrow victory was the result of threats, harassment, and unlawful electioneering by Brown and his cohorts. An ALJ heard two days of testimony in March 2010, after which he recommended that the Board overrule all of the Company’s objections and certify the Union. The Board adopted the ALJ’s findings and certified the Union on December 23. Downtown BID Servs. Corp., Case 5-RC-16330 (N.L.R.B. Dec. 23, 2010) (“Election Decision”).
The Union requested bargaining and the Company refused. This move by the Company sets up judicial review of an election certification that is otherwise insulated from direct review. Boire v. Greyhound Corp.,
The Board now seeks enforcement of that April 4 Order. Because the Company does not deny its refusal to bargain, the validity of the Order turns on the validity of the representation election. The scope of our review of the Board’s rulings regarding the election is “extremely limited,” Amalgamated Clothing & Textile Workers Union v. NLRB,
II
The Board applies a different standard when it reviews the misconduct of a union agent acting within the scope of his agency relationship than when it reviews either misconduct that occurred outside any such relationship or misconduct of a third party. The first question to address is thus whether Brown or any of his aggressive colleagues were agents of the Union and, if so, what the scope of that agency relationship was.
Agency status is determined by common law agency principles. Mar-Jam Supply Co.,
The Company claims Brown and his colleagues had actual authority to act for the Union because they solicited authorization cards on the Union’s behalf. Under the Board’s decision in Davlan Engineering,
The Board also concluded that the job-loss threats made by Brown and others did not reasonably represent “purported union policies” and were therefore outside the scope of the agency relationship as well.
While we in no way condone the tactics in which Brown and his colleagues engaged, we cannot say the Board exceeded its discretion or acted inconsistently with its precedents by placing the responsibility of evaluating the plausibility of statements and threats on employees and by concluding, based on the circumstances in this case, that the impulsive statements of pro-Union employees could not reasonably be equated with Union policy. The Board’s conclusion is bolstered by the fact that nothing in the record suggests either the Union or Brown and his colleagues had special leverage with the Company that
Because the Board’s conclusion relating to the job-loss threats is “reasonable, consistent with its prior decisions, supported by substantial evidence, and consistent with common law determinations on similar facts,” we cannot disturb it. Overnite Transp. Co. v. NLRB,
The Company raises two additional agency-related arguments regarding only Brown. First, the Company argues Brown had apparent authority to act for the Union. Apparent authority “exists where the principal engages in conduct that[,] reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Ovemite Transp. Co.,
This case is distinguishable from the case on which the Company primarily relies. In NLRB v. Kentucky Tennessee
Second, the Company argues Brown had actual authority to act for the Union because he was the Union’s election observer. See Detroit East, Inc.,
Ill
Because the Board was justified in concluding that neither Brown nor any of his colleagues acted as agents of the Union when they threatened and harassed their fellow employees, those actions are evaluated under the standard applicable to third-party conduct. The Board will not set aside an election based on third-party misconduct unless that misconduct was “so aggravated as to create a general atmosphere of fear or reprisal rendering a free election impossible.” Westwood Horizons Hotel,
The job-loss threats were serious, but they were only directed at and disseminated to a few individuals. The record reveals that, of the 117 SAMs in the unit, six were subjected to job-loss threats in separate incidents, some of which occurred at least a month before the election. At the earliest of these incidents, three SAMs were present to overhear the threat. The Company argues that, because the election was so close, this small number of affected voters would have been enough to tip the scale. But the inquiry for third-party misconduct focuses more broadly on the “general atmosphere” of the election, and the small number of affected employees suggests that the atmosphere was not the sort that would make a free election “impossible.” See id. In any event, even if those factors militated slightly in favor of rerunning the election, we would still defer to the Board’s decision because the remaining factors so clearly negate the existence of a general atmosphere of fear. The Company’s reassurances were sufficient to dissipate any threat.
Indeed, the Board has held that even job-loss threats from union representatives themselves would not necessarily void an election because such a threat would, in the ordinary circumstance, be “illogical”: “employees could be expected to conclude that the Employer would not fire employees who aided its cause” by voting against representation. Underwriters Labs., Inc.,
The remaining harassment also does not rise to the demanding level necessary for us to conclude the Board erred. Name-calling, the use of racial epithets, and the anonymous defacement of posters with bigoted and threatening language are deplorable, but these isolated incidents do not warrant setting aside the election under either the Board’s precedents or our own.
IV
Given the high level of deference we owe to the Board’s assessment of the facts and of an election atmosphere, we find the Board properly certified the Union as the employees’ representative. The Board was justified in concluding that the misconduct of a few pro-Union employees was not attributable to the Union. There is also substantial evidence to support the Board’s finding that the various forms of misconduct were not sufficiently pervasive or threatening to invalidate the representation election. The Company’s subsequent refusal to bargain was therefore unlawful, so we must enforce the Board’s order.
So ordered.
Notes
. “A violation of Section 8(a)(5) [of the National Labor Relations Act] is also a violation of Section 8(a)(1), which makes it an unfair labor practice for an employer to 'interfere with, restrain, or coerce employees in the exercise’ of their statutory right to bargain collectively through representatives of their own choosing.” S. Nuclear Operating Co. v. NLRB,
. The Board also noted that the record does not show that Brown and his colleagues made the job-loss threats "when they were soliciting authorization cards.” Election Decision, at 2. We do not rely on this finding.
. In Service Employees International Union Local 87, the Board adopted the ALJ’s decision, but because no party had filed substantive exceptions to that decision,
. The Company also emphasizes that Brown was part of an in-plant organizing committee, but we have squarely held that “the fact that [employees] were members of the Union Organizing Committee, alone, is not sufficient to confer apparent authority on them.” Overnite Transp. Co.,
. The Company claims that, in the course of his election monitoring duties and therefore within his agency relationship, Brown engaged in unlawful electioneering when he greeted and started to hug some voters. But we have enforced the Board's conclusion on similar facts that “thumbs-up gestures by themselves were not a ground upon which to overturn the election.” U-Haul Co. of Nev., Inc. v. NLRB,
. In addition, one employee gave conflicting testimony as to whether she was isolated from her work team because she would not support the Union. She also said she witnessed Brown pressuring an employee to sign an authorization card, but the supposedly pressured employee never corroborated this testimony. Even apart from the questionable evidentiary value of these statements, they do not warrant setting aside the election.
Concurrence Opinion
concurring in part and dissenting in part:
While I concur in the conclusion and most of the opinion of the court, I write separately to express my misgivings over the extension of what I think is already a dangerous and mistaken line of precedent with respect to the Board’s ascertainment of the existence of an agency relationship. The idea that the existence of an agency relationship can be determined by the reasonableness of the representation made by the possible agent seems to me wholly illogical. There seems to me to be no inherent reason why actual agents could be presumed to say only reasonable things and self-appointed agents could be presumed to say unreasonable ones. Further, as applied to this case, the Board seems hardly consistent in its analysis. The evidence before the Board, and indeed accepted by the Board, supported the
Neither do I think the result in this case is compelled by Amalgamated Clothing & Textile Workers Union v. NLRB,
Concurrence Opinion
concurring:
I agree with my colleagues that “[gjiven the high level of deference” we accord the certification decision of the National Labor Relations Board (Board) as well as the impossibility standard by which the Board assesses a challenge to a union election based on third-party conduct, we should uphold the Board. Majority Op. at 117, see also N. Am. Enclosures, Inc. v. NLRB,
First, Jennings Brown and his lieutenants engaged in unrelenting thuggery, harassment and job-loss threats which may not have made an untainted election impossible, but certainly affected the result of the razor-thin Union victory. At least nine employees heard the job-loss statements, and, as noted by the Chief Judge, at least three of them “were so convinced of the reasonableness of the proposition that the union could get them fired that they sought reassurance from management.” Concurrence at 118 (Sentelle, C.J.). While we may never know “how many other employees may have heard the statements but not sought reassurance,” id., we do know that if just three employees had changed their vote, the election would have come out differently (56 votes for the Union, 51 votes against the Union, one challenged ballot).
Second, while I agree that “nothing in the record suggests either the Union or Brown and his ■ colleagues had special leverage with the Company that would permit them to effectuate [the job-loss] threats,” Majority Op. at 114, fellow employees can have a “hereafter” effect on the results of an election. Whether the Union wins or loses, beginning the day after the election, a threatened employee will still have to deal with his harasser.
Finally, I echo the Chief Judge’s caution regarding our treatment of the agency issue, especially our endorsement of Davlan Engineering,
In short, while I cannot say that the Board’s certification is arbitrary in light of our standard of review, I believe the Board’s impossibility standard and our deference to it lead to a dubious result. If the standard is not met here — where numerous pro-Union employees repeatedly intimidated enough colleagues to affect the election — then this case casts serious doubt on the efficacy of the impossibility standard to preserve the “laboratory conditions” necessary “to determine the uninhibited desires of the employees.” Serv. Corp. Int’l v. NLRB,