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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 2003 Decided June 10, 2003
No. 01-1486
AOTOP, LLC, D/B/A EXCEL REHABILITATION AND
HEALTH CENTER,
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
Clifford H. Nelson, Jr. argued the cause and filed the briefs
for petitioner.
Jeffrey L. Horowitz, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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Deputy Associate General Counsel, and Robert J. Englehart,
Supervisory Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: This case concerns the validity of
an election in which employees of AOTOP, LLC, chose the
Service Employees International Union, AFL–CIO, to be
their exclusive bargaining representative. Over the Compa-
ny’s objections, the National Labor Relations Board certified
the election results and, after the Company refused to bar-
gain with the Union, concluded the Company violated
§§ 8(a)(1) & (a)(5) of the National Labor Relations Act, 29
U.S.C. §§ 158(a)(1) & (a)(5). In its petition for review, the
Company argues that the Board should have ordered a rerun
election or, at a minimum, held a hearing on the Company’s
allegations that Union misconduct and the lack of a foreign
language interpreter rendered the election unfair. We up-
hold the Board’s conclusion that the Company’s allegations
and evidence were insufficient to merit a hearing. According-
ly, we deny the petition for review and grant the Board’s
cross-application for enforcement of its order.
I. Background
AOTOP owns and operates the Excel Rehabilitation and
Nursing Center in Tampa, Florida. In December 2000 the
Union filed a petition seeking Board certification as the
representative of Excel’s service and maintenance employees.
The Regional Director of the Board, pursuant to an agree-
ment between the Company and the Union, scheduled an
election for late January 2001.
In pre-election correspondence the Company’s attorney
requested accommodation for employees who were not native
English speakers. In a letter dated January 15, 2001, the
attorney wrote:
At the time that we entered into the stipulation for
an election TTT I indicated that it was sufficient for
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the ballots and election notices to be only in English.
TTT Unfortunately, as a result of more intensive
communications by the Employer’s on-site manage-
ment, I have been advised that it would be beneficial
and in some cases necessary, for the ballots and
election notices to be printed in Spanish and French
(Creole) as well.
In a second letter four days later the attorney confirmed that,
of the 73 employees eligible to vote in the upcoming election,
16 spoke either Spanish or French Creole. The letter con-
cluded: ‘‘I will assume that the necessary measures to ad-
dress these changed circumstances will be implemented, un-
less I hear from you to the contrary.’’ In response to these
letters, the Regional Director provided election notices and
ballots translated into Spanish and French Creole.
According to the Company, in the period leading up to the
election an employee named Cheryl Jennings tried to intimi-
date her coworkers into voting for the Union. Jennings
allegedly asked her fellow employees how they were going to
vote, told them they ‘‘had to vote for the Union,’’ and followed
one housekeeping employee ‘‘as she attempted to perform her
duties.’’ The Company claims that at least five employees
were disturbed by this conduct—two so much that they
resigned prior to the election.
When the Union won the election, the Company, in objec-
tions filed with the Regional Director, argued that the results
were invalid because of Jennings’ conduct. The Company
produced the names of the five employees who would testify
that they were intimidated, and identified Jennings as ‘‘one of
the most active employees in support of the Union’s election
campaign efforts TTT [and] an observer for the Union on the
day of the election.’’ The Company stated that it would
subpoena the Union’s financial records in order to show
‘‘wage payments or reimbursements to Cheryl Jennings TTT
[and] other Union campaign records [that] would further
establish that Ms. Jennings was an active organizer and agent
of the [Union].’’ In addition, the Company argued that its
letters to the Regional Director had put the Board on notice
4
of the need for an interpreter, and that the election results
should be set aside because the Board failed to provide one.
The Regional Director recommended that the Board over-
rule the Company’s objections and certify the election results
because (1) the Company’s evidence, even if true, was insuffi-
cient to establish a prima facie claim of election misconduct,
and therefore did not warrant a hearing, and (2) it was the
Company’s duty to inform the Board of the need for an
interpreter, which it failed to do. The Board adopted the
findings and recommendations of the Regional Director. In
order to get judicial review of that decision, the Company
refused to bargain with the Union and defended the ensuing
unfair labor practice charge solely upon the ground that the
election was invalid. See Boire v. Greyhound Corp., 376 U.S.
473, 476–77 (1964) (certification decisions not reviewable as
such, but can be examined in proceedings brought against
employer for refusal to bargain). The Board summarily
rejected the Company’s defense, AOTOP, LLC, 336 N.L.R.B.
No. 10, 2001 NLRB LEXIS 784 (Sept. 28, 2001), and the
Company petitioned for review.
II. Analysis
The Company argues that Union misconduct and the
Board’s failure to provide an interpreter each independently
tainted the election. We consider those points whilst keeping
in mind the Board’s broad discretion ‘‘to assess the propriety
and results of representation elections.’’ North of Market
Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1167 (D.C. Cir.
2000).
A. Union misconduct
The Company makes no serious claim the evidence of
Union misconduct in the present record conclusively estab-
lishes that the election should be set aside. Rather, the
Company maintains it was an abuse of discretion for the
Board to reject its claim without a hearing.
A party to a Board-supervised election is not entitled to a
hearing on its objections unless the evidence raises a ‘‘sub-
stantial and material issue[ ] of fact sufficient to support a
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prima facie showing of objectionable conduct.’’ Swing Stag-
ing, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir. 1993) (citing
29 C.F.R. § 102.69(d)). Whether the Company’s evidence
was sufficient depends upon the Board’s ‘‘substantive criteria’’
for a claim of election misconduct. Id. Those criteria, in
turn, depend upon who is charged with interfering with the
election.
Where election misconduct is attributable to one of
the parties, the Board will overturn the election if
the misconduct created such an environment of ten-
sion and coercion as to have had a probable effect
upon the employees’ actions at the polls and to have
materially affected the results of the election.
Where misconduct is attributable to third parties,
however, the Board will overturn an election only if
the misconduct is so aggravated as to create a
general atmosphere of fear and reprisal rendering a
free election impossible.
Overnite Transp. Co. v. NLRB, 140 F.3d 259, 264–65 (D.C.
Cir. 1998) (citations and quotations omitted).
The Board applies common law principles of agency, includ-
ing the doctrine of apparent authority, in order to determine
whether a union (or employer) is responsible for the miscon-
duct of its supporters. Id. at 265. In view of the factual
nature of that determination, an evidentiary hearing ordinari-
ly will be required in order to resolve a dispute about the
relationship between a person alleged to have interfered with
a Board-supervised election and one of the parties to that
election. We review the Board’s finding for reasonableness
and to ensure that it is supported by substantial evidence.
Id.
We agree with the Company that the Regional Director
erred by deciding, on the basis of an undeveloped record, that
Jennings was not an agent of the Union. The case upon
which the Regional Director relied, Advance Prods. Corp.,
304 N.L.R.B. 436, 1991 NLRB LEXIS 1043 (Aug. 27, 1991), is
inapposite; although the Board there found apparent authori-
ty lacking, it did so with reference to details that had been
developed at a hearing. Id. at 436. Meanwhile, the Regional
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Director’s statement that the Company presented ‘‘no evi-
dence’’ to support its assertion that the Union’s records would
demonstrate that the Union hired Jennings to conduct pro-
Union activities is erroneous. The Company submitted an
affidavit identifying Jennings as an active Union supporter
and ‘‘an observer for the Union on the day of the election.’’
The Company cannot be expected, in order to justify a
hearing on the question of agency, to produce detailed infor-
mation about the Union’s records—the very information to
which it seeks access through the hearing and associated
discovery process. See Colquest Energy, Inc. v. NLRB, 965
F.2d 116, 122 (6th Cir. 1992) (remanding for hearing upon
agency question after noting employer’s contention that ‘‘only
[the Union] has access to vital information concerning [the
purported agents] within its files’’).
Our conclusion that the Regional Director improperly con-
cluded Jennings was not acting as an agent of the Union does
not necessarily entitle the Company to relief, however. The
Regional Director held, in the alternative, that the Company’s
evidence was insufficient to merit a hearing under the stan-
dard for evaluating misconduct by the agent of a union (or
employer) during the run-up to an election; more specifically,
the Company did not raise a substantial factual question
whether there had been ‘‘misconduct [that] created such an
environment of tension and coercion as to have had a proba-
ble effect upon the employees’ actions at the polls and to have
materially affected the results of the election.’’ Overnite
Transp. Co., 140 F.3d at 264 (citations and quotations omit-
ted). We agree with the Regional Director’s determination.
The Company alleged only that Jennings told fellow em-
ployees they ‘‘had to’’ vote for the Union, asked employees
how they were going to vote, and followed an employee while
she worked. Whether that conduct, assuming it occurred, is
sufficiently serious to have had ‘‘a probable effect upon the
employees’ actions at the polls,’’ id., is an objective question
for the Board, which asks whether the alleged misconduct is
of a type that would cause interference with the free choice of
a reasonable employee. See Kmart Corp., 322 N.L.R.B. 1014,
1015, 1996 NLRB LEXIS 91 (Feb. 6, 1997) (‘‘Subjective
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reactions of employees are irrelevant to the question of
whether there was, in fact, objectionable conduct’’). It is
therefore of little moment that the Company’s witnesses were
denied the opportunity to testify that they were intimidated.
We find no abuse of discretion in the Board’s rejection of
the Company’s claim. Coercive campaigning can be threaten-
ing in any number of ways, but most commonly preys upon
the employee’s fear for her job security or personal safety.
As the Regional Director noted, the Company produced noth-
ing to suggest Jennings had any authority over any of her
coworkers such that they might reasonably fear job-related
reprisal if they voted against the Union. Nor did the Compa-
ny suggest Jennings expressly threatened such reprisal,
much less any physical harm. Yet the Company has cited no
case in which the Board has required a hearing to explore
such seemingly innocuous conduct as telling an employee she
‘‘had to’’ vote in a particular way or following an employee
around the workplace. Indeed, we have upheld the Board in
holding unobjectionable more serious conduct than that. Cf.
Amalgamated Clothing, 736 F.2d at 1564–70 (under ‘‘fear and
coercion’’ standard, boasts by pro-union employees that ‘‘peo-
ple could be hurt’’ and ‘‘cars [would be] torn up’’ and panoply
of anonymous pre-election threats and incidents of vandalism
insufficient, even taken together, to warrant re-run election).
We therefore uphold the Board’s conclusion that the Compa-
ny failed to present evidence meriting a hearing on its claim
of election misconduct.
B. Lack of an interpreter
The Company’s claim that the election results should be set
aside because the Board failed to provide Spanish and French
Creole interpreters gives us little pause. Although the Board
has recognized the importance of foreign language assistance
to ensuring a fair election and has ruled that under certain
circumstances it must provide translated notices or ballots,
e.g., Fibre Leather Mfg. Corp., 167 N.L.R.B. 393, 1967 NLRB
LEXIS 50 (Sept. 11, 1967) (‘‘Regional Director did not con-
duct the election with due regard to the needs of Portuguese-
speaking employees who could not read English’’), the
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Board’s policy is to depend upon a party to request a lan-
guage accommodation. National Labor Relations Board, Ca-
sehandling Manual, Part 2, Representation Proceedings
§ 11315.1 (1999) (‘‘Parties should advise the Regional Di-
rector of the need for foreign language translations and/or
interpreters’’).
The Company does not challenge the validity of the Board’s
policy but asserts that its letters to the Regional Director
constituted a request for interpreters. As noted above, how-
ever, the Company’s attorney wrote only that ‘‘it would be
beneficial and in some cases necessary for the ballots and the
election notices to be printed in Spanish and French (Creole)
as well [as in English].’’ The Regional Director duly com-
plied with that request. The Company claims the Board
should also have divined the need for an interpreter. The
Company has cited no authority for this proposition, however,
nor any reason to add mind-reading to the Board’s already
difficult task list in supervising Union elections. Because the
Company made no specific request for an interpreter, it will
not be heard now to claim the Board’s failure to provide one
rendered the election unfair.
III. Conclusion
For the foregoing reasons, we deny the Company’s petition
for review and grant the Board’s cross-application for en-
forcement of its order.
So ordered.