United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2006 Decided June 22, 2007
No. 05-1464
U-HAUL COMPANY OF NEVADA, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 845,
INTERVENOR
Consolidated with
06-1195
On Petition for Review and
Cross-Application for Enforcement
of an Order of the National Labor Relations Board
George D. Adams argued the cause for petitioner. With him
on the briefs were Richard S. Cleary and William C. Vail, Jr.
David A. Fleischer, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
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the brief were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Meredith Jason,
Attorney.
David A. Rosenfeld was on the brief for intervenor
International Association of Machinists and Aerospace Workers,
Local Lodge 845.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: U-Haul Company of Nevada, Inc.
petitions for review of a Decision and Order of the National
Labor Relations Board directing the Company to recognize and
bargain with the International Association of Machinists and
Aerospace Workers Local Lodge 845, AFL-CIO. U-Haul
claims (1) the General Counsel of the Board abused his
discretion in refusing to consolidate this case with another case
involving the same parties and, (2) because the Union upset the
“laboratory conditions” necessary for a valid representation
election, U-Haul’s refusal to bargain with the Union did not
violate the National Labor Relations Act. The Board has cross-
applied for enforcement of its Order and the Union has
intervened in support of the Board. We uphold the Board’s
Decision and Order in all respects.
I. Background
In March 2003 the Union petitioned for a representation
election at U-Haul’s repair facilities in Henderson and Las
Vegas, Nevada. When the election was held that May, 77
ballots were cast, 47 for the Union, 25 against the Union, and 5
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that were challenged.
U-Haul filed objections to the election, arguing that the
Union had:
• Promised to waive the initiation fees for employees
who joined the Union before the election;
• Misrepresented the extent of its support among
employees by forging signatures on a petition and
making “last minute representations” to employees in
the form of a document erroneously “guaranteeing” the
Company could not lawfully close or threaten to close
the shop if the Union won the election;
• Created the appearance that the Board favored the
Union when an active Union supporter greeted the
Board’s agent overseeing the election like a long-lost
friend; and
• Engaged in unlawful electioneering when the Union’s
election observer smiled at and made “thumbs-up”
gestures to voters in the polling place, and when Union
officials conversed with six or seven voters in a
parking lot near the polling place immediately before
they went in to vote.
The Company also objects that, even if no one of the foregoing
activities was sufficient to upset the laboratory conditions
necessary for a valid election, in the aggregate they surely were.
See Gen. Shoe Corp., 77 NLRB 124, 127 (1948) (holding
representation elections should be held in “laboratory ...
conditions as nearly ideal as possible, to determine the
uninhibited desires of the employees”), enf’d, 192 F.2d 504 (6th
Cir. 1951).
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A hearing officer, after taking testimony, recommended that
the Board overrule U-Haul’s objections and certify the Union as
the exclusive bargaining representative of the employees. U-
Haul filed exceptions with the Board, which rejected them,
adopted the findings and recommendations of the hearing
officer, and certified the Union.
When U-Haul thereafter refused to bargain, the Union filed
an unfair labor practice charge alleging the Company had
violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C.
§ 158(a)(1), (5). The General Counsel filed a complaint, which
U-Haul answered with the argument that it had no obligation to
bargain because the election was invalid. The General Counsel
moved for summary judgment, which U-Haul opposed on the
grounds that the hearing officer was biased and this case should
have been consolidated with another proceeding involving the
Union, the Company, and its parent, U-Haul International, Inc.
The Board concluded the hearing officer was not biased and
the General Counsel had not abused his discretion because the
other proceeding against U-Haul involved separate and distinct
violations. Accordingly, the Board held the Company had
“engaged in unfair labor practices ... within the meaning of
Section[s] 8(a)(5) and (1)” and ordered U-Haul to cease and
desist from refusing to bargain and to bargain with the Union
upon request.
II. Analysis
In its petition for review, U-Haul renews its arguments that
(1) the General Counsel abused his discretion by failing to
consolidate this proceeding with the other unfair labor practice
case against the Company, (2) the Company did not unlawfully
refuse to bargain because the election was invalid for each of the
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reasons epitomized above, and (3) the hearing officer was biased
to the point of depriving U-Haul of due process.
We review the Board’s Decision and Order for abuse of
discretion. See Canadian Am. Oil Co. v. NLRB, 82 F.3d 469,
473 (D.C. Cir. 1996). “On questions regarding representation,
we accord the Board an especially wide degree of discretion.”
Id. (internal quotation marks and citation omitted). We review
the Board’s factual findings for substantial evidence. See
Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.
Cir. 1997). We will set aside a representation election only if
the petitioning party “demonstrate[s] that the conduct
complained of interfered with the employees’ exercise of free
choice to such an extent that it materially affected the election.”
C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir. 1988).
A. Consolidation
U-Haul argues in limine that the Board should have
dismissed the complaint with which the General Counsel
initiated this case because he abused his discretion by
“arbitrarily fail[ing] to consolidate contemporaneous charges”
against the Company. The Board rejected that argument on the
ground that under Service Employees, Local 87 (Cresleigh
Mgmt.), 324 NLRB 774 (1997), consolidation is required only
in “situations where the General Counsel is attempting to twice
litigate the same act or conduct as a violation of different
sections of the Act, or to relitigate the same charge in different
cases.” The charges at issue in the two cases against U-Haul are
distinct: The instant case involves U-Haul’s technical refusal to
bargain after the Union was certified as the bargaining
representative of the employees, which the Company claims was
justified by misconduct on the part of the Union. The other
proceeding, in contrast, involves various alleged pre-election
unfair labor practices on the part of U-Haul, for which the
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General Counsel is seeking a remedial bargaining order pursuant
to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), on the
ground that the Company irremediably destroyed the possibility
of holding a valid second election. In addition, the Board
pointed out that consolidation would unnecessarily delay
disposition of the post-election case, see Cresleigh Mgmt., 324
NLRB at 775, until the more complicated pre-election complaint
is resolved.
For the reasons given by the Board, we conclude the
General Counsel did not abuse his discretion in pursuing the
complaints against U-Haul in separate proceedings.
Accordingly, we turn to the merits of U-Haul’s arguments for
setting aside the election.
B. Waiver of the Union Initiation Fee
U-Haul’s burden is to show that Union misconduct
“interfered with the employees’ exercise of free choice to such
an extent that it materially affected the election,” C.J. Krehbiel
Co., 844 F.2d at 882. To that end, the Company argues first that
the Union’s promise to waive initiation fees for employees who
joined the Union prior to the election is “objectionable, as it
creates the false impression of employee support and a sense of
obligation to the Union,” see NLRB v. Savair Mfg. Co., 414 U.S.
270, 277-78 (1973).
This argument rests upon the faulty premise that the
Union’s offer was conditioned upon the employee joining the
Union prior to the election. The hearing officer specifically
found the Union offered, in writing and orally at meetings, to
waive the initiation fees for, as stated in a Union flyer, “all
employees who join ... in a newly organized shop,” not only for
those who joined before the election. This put the Union’s offer
squarely within the category deemed permissible in Savair, 414
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U.S. at 272 n.4; see Majestic Star Casino, LLC v. NLRB, 373
F.3d 1345, 1349 (D.C. Cir. 2004) (“Under judicial and Board
precedent, an offer to waive initiation fees in not impermissible
unless it is conditioned upon an employee’s demonstration of
support for the union”).
Substantial evidence supports the hearing officer’s finding
that the waiver of fees was not conditioned upon the employee’s
demonstrated support for the Union. Several employees
testified that one or another Union supporter told them the fee
waiver was conditioned upon support for the Union. The
hearing officer, however, found that none of the testimony
credibly supports that claim and, although there was testimony
suggesting that one employee, Don Collette, who was an
enthusiastic Union supporter, made such statements to two other
employees, the hearing officer found Collette’s denial more
credible than the conflicting testimony. The hearing officer
reasoned it was “inherently implausible” that Collette was
making statements to other employees that “contradicted the
plethora of documents that [the] Union was using during the
organizing campaign as well as what the Union officials stated
at meetings.”
A hearing officer’s “credibility determinations may not be
overturned [by the reviewing court] absent the most
extraordinary circumstances such as utter disregard for sworn
testimony or the acceptance of testimony which is on its fac[e]
incredible.” E.N. Bisso & Son, Inc. v. NLRB, 84 F.3d 1443,
1444-45 (D.C. Cir. 1996) (internal quotation marks and citation
omitted, alteration in original). No such showing has been made
here; the record supports the finding that the Union did not
condition waiver of the initiation fee upon an employee’s
supporting the Union before the election.
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C. Forged Signatures and Last Minute Representations
U-Haul next argues the Union’s distribution of a petition
supported by forged signatures and of a “‘Guarantee’ certificate
misrepresenting the Union’s powers, individual employees’
rights, and [U-Haul’s] management authority” were “calculated
to misinform the employees, and were cynically timed to ensure
that [U-Haul] would have no opportunity to respond.” The
“Guarantee” stated that, if the Union won the election, then “it
[would be] illegal for the company to close or threaten to close
the plant.”
The Board considered this objection pursuant to both its
longstanding precedent, Midland National Life Insurance Co.,
263 NLRB 127, 133 (1982), holding that misleading campaign
statements are cause to set aside an election only if a party has
used “forged documents which render the voters unable to
recognize the propaganda for what it is,” id. at 130 (internal
quotation mark and citation omitted), and the exception thereto
engrafted by the Sixth Circuit, which held that an election also
may be set aside “where no forgery can be proved, but where the
misrepresentation is so pervasive and the deception so artful that
employees will be unable to separate truth from untruth.” Van
Dorn Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (1984).
The Board agreed with the hearing officer that the
misrepresentations alleged in this case did not meet either
standard and that the “Guarantee” — although “arguably ... an
erroneous reading of Board law” — would be seen and treated
by voters as “union propaganda.”
U-Haul challenges the Board’s decision upon the basis of
the Sixth Circuit’s five-factor test for whether
misrepresentations interfered with employees’ freedom of
choice, see NLRB v. St. Francis Healthcare Ctr., 212 F.3d 945,
963-64 (2000). The Board argues U-Haul may not raise this
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argument here because, although the Company did object on the
basis of Van Dorn, it did not argue the Board should apply the
five factors identified in St. Francis, see 29 U.S.C. § 160(e)
(“No objection that has not been urged before the Board ... shall
be considered by the court, unless the failure ... be excused
because of extraordinary circumstances”). U-Haul responds that
whereas § 160(e) bars a new “objection,” here the employer is
only adducing new support for an objection that it did make
before the Board.
We agree the argument is barred. St. Francis represents a
distinct alternative to the Board’s approach in Midland and adds
additional considerations to the Sixth Circuit’s own approach in
Van Dorn. See Majestic Star Casino, 373 F.3d at 1349
(Subsection 160(e) bars argument first raised in court that Board
should adopt factors explicated in St. Francis).
The Board concluded the alleged misrepresentations in the
form of the “Guarantee” and the forged signatures on the
Union’s petition did not change the employees’ understanding
of the petition or of the Guarantee as “union propaganda” to be
treated accordingly, and therefore they were not grounds for
setting aside the election. According to the Board, the few
allegedly forged signatures, which suggested more employees
supported the Union than may have been the case, would not
have prevented employees from recognizing that the Union was
circulating the petition to garner support for its cause. As for the
“Guarantee,” which “plainly emanated from the Union,” the
Board similarly concluded employees “would see the document
as union propaganda and treat it as such.”
The Board’s reasoning is consistent with the standard set in
Midland. We therefore hold the Board did not abuse its
discretion in concluding that the alleged Union
misrepresentations in this case did not compromise employees’
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freedom of choice.
D. Compromising Board Neutrality
U-Haul’s next argument is that when Don Collette, “a well
known Union advocate and organizer,” came into the polling
place to vote, his overfriendly greeting of the Board agent
supervising the election “suggested to the employees that the
Board was not neutral.” The Board responds: “The law is that
an election will be set aside,” as explained by this court, “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,” N. of Mkt.
Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1168 (D.C. Cir.
2000) (internal quotation marks and citation omitted, alteration
in original). In the cited case, the Board agent sent Union
officials into the employer’s facility to tell employees when to
vote, which “certainly may have given the impression that the
Board had ceded significant authority to the Union over the
conduct of the election.” Id. at 1169.
U-Haul does not adduce any precedent for the proposition
that a union adherent’s conduct can call the apparent neutrality
of the Board or its agent into doubt. Nor are the facts of this
case so compelling as to show the Board abused its discretion in
concluding that Collette’s glad-handing did not compromise the
Board’s appearance of neutrality.
E. Improper Electioneering
U-Haul argues that the Union’s election observer violated
the Board’s longstanding rule against “electioneering at or near
the polls,” Brinks, Inc., 331 NLRB 46 (2000), because he “made
a practice of smiling at voters and giving a ‘thumbs up’ as they
approached the table,” which some voters acknowledged “by
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pointing to their ‘Union Yes’ pins and smiling back.” In Brinks,
too, the union observer gave several voters a thumbs-up gesture
and the Board overturned the election.
Although we do not agree with the Board’s Decision insofar
as it said the Union observer’s gesture in this case “could not
reasonably be understood to convey any particular meaning” —
the gesture was obviously meant to encourage support for the
Union — the Board went on reasonably to distinguish Brinks on
the ground that in that case the union observer, who had been
instructed not to speak to employees, also “explicitly instructed”
several employees how to vote, see id. at 47. In this case there
is no suggestion the Union’s observer either told employees how
to vote or ignored any of the Board agent’s instructions. We
therefore conclude the Board did not abuse its discretion in
concluding the thumbs-up gestures by themselves were not a
ground upon which to overturn the election.
U-Haul next contends that conversations Union officials
had with six or seven voters in a nearby parking lot violated the
rule in Milchem, Inc., 170 NLRB 362 (1968), which prohibits
“prolonged conversations between representatives of any party
to the election and voters waiting to cast ballots,” id. at 362. U-
Haul also relies upon this court’s decision in Nathan Katz
Realty, LLC v. NLRB, 251 F.3d 981 (2001), in which we
summarized the law as follows: “[A] party engages in
objectionable conduct sufficient to set aside an election if one of
its agents is continually present in a place where employees have
to pass in order to vote.” Id. at 993.
Assuming the Union officials were, as U-Haul maintains
and the Board assumed for the sake of the argument, as little as
30 feet from the polling place, which was on the second floor of
U-Haul’s facility, nothing in the record suggests a Union agent
was “continually present in a place where employees ha[d] to
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pass in order to vote,” id. On the contrary, the Board noted in its
Decision that “[a]ll but a handful of eligible voters were already
inside the building when the voting period began and by the
time [the Union agent] arrived in the parking lot,” and the
subject “conversations did not take place in the polling area, the
waiting area, or near the line of voters.” The Board’s conclusion
that for these reasons the conversations “are not objectionable”
is consistent with Katz. Therefore, the Board did not abuse its
discretion in rejecting U-Haul’s objection to the Union’s electioneering.
F. Cumulative Impact
U-Haul’s last argument in this vein is that the Union
activities to which it objects, if insufficient individually to
invalidate the election, when aggregated are sufficient to do so.
The hearing officer, however, held that “even if ... taken
cumulatively, such conduct did not interfere with the laboratory
conditions of the election.” This is a defensible assessment. We
have explained before that where “most or all of the
[objectionable] incidents [are] in the least weighty categories,
the Board appropriately will decide not to overturn the election
results.” Amalgamated Clothing & Textile Workers Union v.
NLRB, 736 F.2d 1559, 1569 (D.C. Cir. 1984). In this case, none
of the claimed misconduct was weighty, and we can hardly say
it was an abuse of discretion for the Board to determine that a
few regrettable but insignificant incidents did not require
overturning an election the results of which were not close.
G. Hearing Officer Bias
Finally, U-Haul argues the hearing officer’s “bias toward
[U-Haul] at the objections hearing was palpable, and that bias
deprived [U-Haul] of due process.” As evidence of bias, U-Haul
points to the hearing officer’s: (1) refusal, over U-Haul’s
standing objection, to admit signature exemplars of witnesses
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who testified they had signed the Union petition; (2) statement
that allowing expert opinion regarding the inauthenticity of
disputed signatures was “against [her] better judgment”; (3)
discrediting two Union witnesses whose testimony arguably
supported U-Haul’s case; and (4) “questioning witnesses so as
to reshape their testimony” to U-Haul’s disadvantage.
This claim of bias has no merit. A meritorious claim may
be based either upon showing a bias or prejudice that “stem[s]
from an extrajudicial source and result[s] in an opinion on the
merits on some basis other than what the judge learned from his
participation in the case,” United States v. Grinnell Corp., 384
U.S. 563, 583 (1966), or, less commonly, upon showing a
“favorable or unfavorable predisposition ... so extreme as to
display clear inability to render fair judgment.” Liteky v. United
States, 510 U.S. 540, 551 (1994). U-Haul points to nothing of
the sort in the record of this case. On the contrary, U-Haul’s
specific complaints are but disagreements with some of the
hearing officer’s rulings. We therefore reject U-Haul’s claim
that it was denied due process.
III. Conclusion
We conclude the General Counsel did not abuse his
discretion by failing to consolidate this case with another case
then pending against U-Haul, and the hearing officer did not
deny U-Haul due process. On the merits, we reject each of U-
Haul’s arguments for setting aside the election. Therefore, U-
Haul’s petition for review of the Board’s Decision and Order is
denied, and the Board’s cross-application for enforcement is
granted.
So ordered.