United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 28, 2000 Decided March 10, 2000
No. 99-1178
North of Market Senior Services, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Paul B. Johnson argued the cause and filed the briefs for
petitioner.
Sonya Spielberg, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Linda R. Sher, Associate General Counsel, and
Aileen A. Armstrong, Deputy Associate General Counsel.
Peter D. Winkler, Supervisory Attorney, entered an appear-
ance.
Before: Edwards, Chief Judge, Ginsburg, Circuit Judge,
and Buckley, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: The petitioner in this case, North of
Market Senior Services ("North of Market"), a medical care
provider for low-income senior citizens, challenges the Na-
tional Labor Relations Board's ("Board" or "NLRB") order
requiring it to bargain with the Service Employees Interna-
tional Union, Local 790 ("Union"). Following a representa-
tion election held on January 6, 1998, the Union was certified
on September 28, 1998, as the exclusive bargaining agent for
a unit of employees at North of Market. The employer's
objections to the election were considered, without a hearing,
and overruled by the Board's Regional Director in a written
Report that was subsequently adopted by a three-member
panel of the Board, over one dissent. Board Member Peter
Hurtgen dissented from the Board's failure to provide a
hearing on two of the objections raised by North of Market.
North of Market then refused to bargain, prompting the
issuance of an unfair labor practice complaint by the Board's
General Counsel. On Motion for Summary Judgment, a
three-member panel of the Board found that North of Market
had unlawfully refused to bargain, in violation of sections
8(a)(5) and 8(a)(1) of the National Labor Relations Act, and
ordered the employer to bargain with the Union as the
employees' exclusive representative.
The Board now seeks enforcement of its order. North of
Market, in turn, argues that certain impermissible actions of
the Board's agent who conducted the election and Union
representatives who were present during the balloting pro-
cess so tainted the election procedure that the results should
be set aside or, at a minimum, the case should be remanded
for a hearing on the employer's objections.
On the morning of the election, the Board agent who
conducted the election sent Union agents into North of Mar-
ket's facilities to tell employees that they could vote between
11:00 a.m. and 1:00 p.m. For approximately half an hour, the
Union agents walked through the employer's facilities, telling
employees that they had been sent by the Board to tell them
when the polls were open. The Union agents even went so
far as to walk into private medical examination rooms where
patients were being examined. As the Union agents talked
with employees on the employer's premises, they openly
rejected a manager's assertion that employees needed to take
their lunch break to vote. The manager who accompanied
the Union agents filed a declaration saying that she was
"powerless to stop this rampage through [the employer's]
facility or to counter what the union agents were doing or
saying." Decl. of Gloria Valoris, reprinted in Deferred Ap-
pendix ("D.A.") 85.
North of Market contends that the election should be
invalidated, because the disputed conduct impugned the in-
tegrity of the election and interfered with the employees' free
and uncoerced choice in the election. North of Market
argues, in the alternative, that, at the very least, the Board
erred in denying it a hearing on its objections. We agree.
When a party objecting to an election presents specific,
prima facie evidence that an election is invalid, the Board is
required to hold a hearing. See 29 C.F.R. s 102.69(d) (1999);
Swing Staging, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir.
1993). North of Market has presented such evidence in this
case. Thus, the petition for review is granted in part and the
case is remanded. On remand, the Board must either invali-
date the election results and schedule a new election or hold a
hearing on the objections raised by North of Market to
determine whether to hold a new election.
I. Background
In the fall of 1997, the Union began a campaign to organize
the employees of North of Market's San Francisco facility.
On November 24, 1997, the Union filed a petition to represent
the employees of that facility. The election was set for
January 6, 1998. North of Market complains about a number
of different incidents surrounding the election. However,
only two charges raised by North of Market--the claims that
the actions of the Board agent and Union representatives
destroyed the integrity of the election and interfered with
free and uncoerced voting--warrant our attention.
On the morning of the election, Board Agent Wayne Chin
held a pre-election conference with Gloria Valoris, the Execu-
tive Director of North of Market, and Union organizers Jen
Lai and Louisa Blue. The description of the events that
follows is gleaned entirely from Gloria Valoris' perspective, as
her affidavit and declaration are the only evidence in the
record as to what happened that morning. According to Ms.
Valoris, Jen Lai told Mr. Chin that she had heard that
supervisors were telling employees that they could only vote
on their lunch hour between 12:00 p.m. and 1:00 p.m. If this
was true, it was wrong, because the polls were scheduled to
be open from 11:00 a.m. to 1:00 p.m. Ms. Valoris asserted
that it was not true. She said that employees had been told
that they had to vote during their lunch break, but that they
could take their lunch hour any time between 11:00 a.m. and
1:00 p.m. At this point, with the polls opening in less than
half an hour, Mr. Chin made a poor judgment call.
Mr. Chin decided that the employees should be informed
about the correct voting time. At first he considered sending
Ms. Valoris into the facility to deliver the message to the
employees. Then he changed his mind and told her that she
should have a non-supervisor make the announcement. He
changed his mind again and settled on a final course of action:
"He ... said that the two union agents should make the
announcement to employees that they could vote any time
between 11 and 1." Aff. of Gloria Valoris, reprinted in D.A.
90-91. Ms. Valoris states that it was her "impression that
[she] was to just escort them through the office to show them
where employees were working." Id. at 90.
The Union agents apparently were not shy in carrying out
their assignment: Wearing their Union insignia in full view,
they patted employees on the arm or back, shook their hands
like good buddies, and told them that they had been sent by
the NLRB to say that employees could vote any time between
11 and 1. The Union agents added that employees did not
need to take their lunch break to vote. This was contrary to
Ms. Valoris' view, and she followed the Union agents around
telling employees that they could take their lunch any time
between 11 and 1, but that they did have to take their lunch
to vote. The Union agents, however, frustrated her efforts to
get that message across. "Whenever I would make that
statement," she said, "the union agents would contradict my
instructions, telling employees that they had been sent by the
Board agent to tell them that they could vote whenever they
wanted and it did not have to be on their lunch hour." Decl.
of Gloria Valoris, reprinted in D.A. 85. All of this took place
from approximately 10:50 a.m. until 11:15 a.m., fifteen min-
utes into the election.
During this time, the Union agents also walked into patient
examination rooms, delivering their message to the employees
there. According to Ms. Valoris, "[t]hey barged into exam
rooms unannounced and without any permission from me."
Id. Ms. Valoris says that elderly patients were being treated
in these rooms and that some of them were in various states
of undress. Ms. Valoris states that she "was powerless to
stop this rampage through our facility or to counter what the
union agents were doing and saying, particularly in light of
their repeated statement to employees that they had been
sent by the NLRB." Id. The election otherwise continued
as planned.
The Union won by a vote of 15 to 11, and North of Market
filed timely objections to the election. The Regional Director
investigated, but held no hearing, and recommended overrul-
ing the objections. The Board, with one member dissenting,
adopted the Regional Director's findings and recommenda-
tions. North of Market Senior Servs. Inc., Case No. 20-RC-
17350 (Sept. 28, 1998). The dissenting member believed that
the conduct described above warranted a hearing. Id. at 2
n.2. The Union was certified, but North of Market, in order
to obtain judicial review of the decision to certify the Union,
refused to bargain. An unfair labor complaint was issued
against North of Market. The Board, on a Motion for
Summary Judgment, held that North of Market violated 29
U.S.C. s 158(a)(1) and (5) and ordered North of Market to
bargain with the Union. North of Market Senior Servs., Inc.,
327 N.L.R.B. No. 197 (Mar. 24, 1999). This appeal followed.
III. Discussion
The Board's discretion to assess the propriety and results
of representation elections is broad. Thus, it is well estab-
lished that a court will overturn a Board decision to certify an
election in only the rarest of circumstances. See E.N. Bisso
& Son, Inc. v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996). A
party seeking to overturn an election bears a heavy burden of
showing that the election is invalid. See Swing Staging, Inc.
v. NLRB, 994 F.2d 859, 861 (D.C. Cir. 1993). But a party
who "raises substantial and material issues of fact sufficient
to support a prima facie showing of objectionable conduct," is
entitled to an evidentiary hearing. Id. (citing 29 C.F.R.
s 102.69(d) (1999)). This evidence cannot be conclusory but
"must point to specific events and specific people." Id.
(citations and internal quotation marks omitted).
North of Market presented such specific evidence here, yet
the Board in this case declined to hold a hearing. North of
Market filed six objections with the Board and supported
those objections with specific evidence of wrong-doing.
Among the objections, North of Market argued that the
Board agent's decision to send the Union agents into the
employer's facility and the Union agents' subsequent behavior
impugned the integrity of the election and interfered with the
employees' free and uncoerced voting. And while we agree
with the Board's decision to reject most of North of Market's
objections, these two objections raise substantial issues that
should have been addressed by the Board.
A. The Integrity of the Election
The Board attempts, as near as possible, to hold elections
in a laboratory condition. See NLRB v. Schwartz Bros., Inc.,
475 F.2d 926, 930 (D.C. Cir. 1973); General Shoe Corp., 77
N.L.R.B. 124, 127 (1948). This requires the Board and its
agents to maintain an appearance of neutrality in conducting
fair and impartial elections. See, e.g., Sioux Products, Inc. v.
NLRB, 703 F.2d 1010, 1013-14 (7th Cir. 1983). Obviously,
Board agents in charge of elections have a responsibility to
uphold this standard. Thus, if a Board agent acts in a way to
"destroy confidence in the Board's election process, or [in a
way that] could reasonably be interpreted as impugning the
election standards," the election must be set aside. Id. at
1013 (citations and internal quotation marks omitted).
A Board agent can destroy confidence in the election in a
number of different ways: by creating questions about the
integrity of the ballot box, see Austill Waxed Paper Co., 169
N.L.R.B. 1109, 1109-1110 (1968) (invalidating an election,
because the ballot box was left unsealed and unattended for
from two to five minutes); by fraternizing with one party to
the election, see Athbro Precision Eng'g Corp., 166 N.L.R.B.
966, 966 (1967), vacated sub nom. Electrical Workers IUE v.
NLRB, 67 L.R.R.M. 2361 (D.D.C. 1968), acq. 171 N.L.R.B. 21
(1968), enf'd. 423 F.2d 573 (1st Cir. 1970) (invalidating an
election, because Board agent was seen having a beer with
Union agent between polling periods); or by delegating non-
minor official election duties to a party, see Alco Iron & Metal
Co., 269 N.L.R.B. 590, 591-92 (1984) (invalidating election,
because Board agent delegated task of translating voting
instructions to Union observer). It is this last cited conduct
that is at issue here.
The Board agent in this case delegated to Union officials
the task of telling employees when they could vote in the
representation election. In other words, there is no doubt
that an official election task was impermissibly assigned to a
party. The question here is whether this delegation compro-
mised the integrity of the election. The Board traditionally
has considered such questions on a case-by-case basis, weigh-
ing the importance of the delegated task, the manner in which
it was assigned and performed, and its likely effect on the
required appearance of neutrality. For example, in Alco, the
Board determined that the integrity of the election was
compromised when the Board agent delegated the task of
translating ballots to the Union's observer. 269 N.L.R.B. at
591-92. The Board stated that "[t]he delegation of an impor-
tant part of the election process to the Petitioner's observer
conveyed the impression that the Petitioner, and not the
Board, was responsible for running the election." Id. This
conduct, the Board held, was "incompatible with [its] respon-
sibility for assuring properly conducted elections," and neces-
sitated overturning the election. Id. at 592. However, in
San Francisco Sausage Co., 291 N.L.R.B. 384 (1988), the
integrity of the election was found not to have been compro-
mised when the Board agent delegated the task of announc-
ing, over an intercom, that voting had begun. That, the
Board held, "was a delegation of a minor task" that was
performed in an innocuous way and so did not necessitate
overturning the election. San Francisco Sausage, 291
N.L.R.B. at 384 n.1.
Here, the Board agent's delegation raised a serious threat
to the integrity of the election, because it resulted in Union
agents tromping through the employer's facility, on the direct
authority of an official from the NLRB, during the precious
moments before the polls opened. There is no doubt that
simply delegating the task of telling employees when to vote
does not impugn the integrity of an election. See, e.g., San
Francisco Sausage, 291 N.L.R.B. at 384 n.1. However, un-
like San Francisco Sausage, where the party made only a
brief announcement over an intercom, the Union agents in
this case, in full Union regalia, announced that they were sent
by the NLRB, then personally and warmly greeted each
employee and told them when they could vote. And the
Union agents added insult to injury by openly refuting a
management official's instruction regarding employees' lunch
breaks. It was strange at best for Union officials to be
wandering through the employer's work areas, with no assent
from the employer and on the proclaimed authority of the
NLRB. This certainly may have given the impression that
the Board had ceded significant authority to the Union over
the conduct of the election.
In short, North of Market has presented a compelling case,
and certainly a prima facie one, that the integrity of the
election was impugned when the Board agent sent Union
officials into the employer's facility to tell employees when to
vote. And the vigor with which the Union agents carried out
the task, flaunting their new found "authority" to speak for
the Board, while openly disagreeing with a management
official, made the situation even worse. The Board erred in
denying North of Market a hearing on this objection.
B. Interference with Free and Uncoerced Voting
Likewise, the Board erred in summarily rejecting the ob-
jection that the Union agents' tour through the facilities and
open disagreements with a management official necessitated
invalidating the election. An election is invalid if the actions
of a party to the election "reasonably tend[ed] to interfere
with the employees' free and uncoerced choice in the elec-
tion." Family Serv. Agency v. NLRB, 163 F.3d 1369, 1383
(D.C. Cir. 1999) (citations and internal quotation marks omit-
ted). The employees' free and uncoerced choice in an election
may be interfered with by actions that create the impression
that an employer is not in control of its own facilities and is
not able to stand up to the Union. See Phillips Chrysler
Plymouth, Inc., 304 N.L.R.B. 16 (1991).
In Phillips, the Board invalidated an election where Union
agents refused to leave the employer's property and engaged
in a shouting match with the employer in front of employees
an hour before the polls opened. Because this "direct chal-
lenge to the Employer's assertion of its property rights" and
the message that "the Employer was powerless to protect its
own legal rights in a confrontation with the Union" could not
have been lost on the employees, the Board held that the
Union's conduct interfered with the employees' free and
uncoerced choice. Phillips Chrysler, 304 N.L.R.B. at 16.
Similarly, in this case, North of Market has raised signifi-
cant issues regarding the Union's improper invasion of its
property and the resulting impression that the employer was
helpless to control the situation. First, not only did the
Union agents walk around the employer's facility without the
employer's permission, but they walked into private examina-
tion rooms where patients were in a state of undress. The
Union agents' unhindered access to the facilities and the
examining rooms surely could have been seen as a challenge
to North of Market's property rights. Second, the Union
agents repeatedly disagreed with Ms. Valoris: She told em-
ployees that they had to vote on their lunch break, but the
Union agents told employees that they did not have to vote
during their lunch hour. This disagreement could well have
given employees the impression that North of Market was
unable to protect its rights in a dispute with the Union. This
is especially true given that the Union agents purported to be
speaking for the Board when they disagreed with the employ-
er.
Moreover, we scrutinize this misconduct more closely both
because it took place on the day of the election, see Family
Serv. Agency, 163 F.3d at 1383 (noting that argument be-
tween employer and union did not necessitate invalidating the
election in part because election was at least a month away
from the time the argument occurred); NLRB v. Earle
Indus., Inc., 999 F.2d 1268, 1274 (8th Cir. 1993) (holding that
conduct did not violate Phillips Chrysler, in part because it
took place weeks before the election), and because the Un-
ion's margin of victory was narrow, see C.J. Krehbiel Co. v.
NLRB, 844 F.2d 880, 884 (D.C. Cir. 1988) (carefully scrutiniz-
ing the election, because the vote was close); United Steel
Workers v. NLRB, 496 F.2d 1342, 1347 n. 11 (5th Cir. 1974)
("If the vote margin in a representational election is very
narrow, minor violations should be more closely scrutinized.").
In light of the record at hand and considering the princi-
ples underlying Phillips Chrysler, we conclude that North of
Market was at least entitled to a hearing on this issue.
Accordingly, the case will be remanded for further consider-
ation by the Board, either to conduct of a new election or for
a hearing on the employer's objections. If a hearing is held,
the Board must specifically address the application of Phillips
Chrysler to this case.
III. Conclusion
For the reasons given above, the Board's request for
enforcement is denied, the petition for review is granted in
part, and the case is remanded to the Board. On remand, the
Board may conclude that the present record is sufficient
without more to show that the integrity of the election was
compromised and/or that the employees' free and uncoerced
choice was impaired so as to justify a new election. At a
minimum, however, the Board must conduct a hearing to
address these two charges raised by the employer.