National Labor Relations Board v. Regional Home Care Services, Inc.

United States Court of Appeals
For the First Circuit

No. 00-1268
00-1558

NATIONAL LABOR RELATIONS BOARD,

Petitioner/Respondent, Cross-Petitioner

v.

REGIONAL HOME CARE SERVICES, INC., D/B/A/
NORTH ATLANTIC MEDICAL SERVICES,

Respondent/Petitioner, Cross-Respondent.

APPLICATION FOR ENFORCEMENT, PETITION FOR REVIEW,
AND CROSS-APPLICATION FOR ENFORCEMENT OF ORDERS OF
THE NATIONAL LABOR RELATIONS BOARD

Before

Stahl, Lynch, and Lipez, Circuit Judges.

Richard A. Cohen, Senior Attorney, National Labor Relations Board,
with whom Leonard R. Page, General Counsel, National Labor Relations
Board, and Aileen A. Armstrong, Deputy Associate General Counsel,
National Labor Relations Board, were on brief, for Petitioner.
Kevin M. Keating for Respondent.
January 23, 2001
 LYNCH, Circuit Judge. In 1995 the Teamsters Union

began an organizing campaign at North Atlantic Medical Services,

a supplier of medical equipment. North Atlantic fought fiercely

and also unfairly and now has unfair labor practice findings

against it, as well as a bargaining order. A supervisor,

though, had pro-union sympathies which he openly expressed. The

employees -- that is, a majority of them -- both signed union

representation cards and voted for unionization in an election.

The employer has refused to bargain with the Union and twice has

been ordered by the National Labor Relations Board to do so.

The Board now petitions for enforcement of its various orders.

North Atlantic also petitions for review, saying that both the

election and the authorization cards, and thus the consequent

Board orders to bargain, must be set aside because the

supervisor’s conduct biased the outcome. North Atlantic has not

challenged the finding of unfair labor practices on its part.

The case involves review of the Board's determination that the

pro-union activities of a supervisor were not sufficient to

deprive employees of their right to a free and uncoerced choice,

and thus to set aside the two bases for the bargaining order.

I.

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 We summarize the Administrative Law Judge's undisputed

findings of fact, adopted by the Board.

North Atlantic Medical Services supplies medical

equipment. That equipment is delivered by field service

technicians, or drivers. In April 1995, when union organizing

efforts began, North Atlantic employed approximately eleven

drivers and mechanics at its Leominster facility.

At the request of driver Marco Nagle, union organizer

Al Stearns met on April 6, 1995, with Nagle and four other North

Atlantic employees who were interested in unionization.1 Field

Service Manager Steven Custer also attended the meeting. Custer

said he supported unionization but told the others that North

Atlantic's president, Carbot Carabott, was adamantly opposed to

unionization and had once threatened to "lock the [ ] doors" if

the employees tried to organize a union. Custer warned that

Carabott would "do everything in his power to make it miserable

for everyone" if they tried to organize. All six attendees,

1 Stearns represented the International Brotherhood of
Teamsters, AFL-CIO. We refer to the local, Truck Drivers Union
Local 3170, as "the Union," either as the proposed
representative or as the certified representative of North
Atlantic's drivers.

-4-
including Custer, signed union authorization cards at that

meeting. Custer did not himself pass out cards or ask employees

to sign the cards, nor did he promise rewards if they supported

unionization or punishment if they did not.

Shortly after the meeting, Nagle obtained signed cards

from three more employees. When Stearns again met with

employees on April 13, eight of the eleven unit members had

signed cards. Stearns filed a representation petition with the

Board. The Board then sent a copy to North Atlantic on April

17. The parties agreed to an election set for June 1, 1995.

In the weeks before the election, North Atlantic

launched a campaign to defeat unionization. It undertook a

series of personnel actions designed to undermine support for

unionization in the bargaining unit. Three days after receiving

the petition, on April 20, North Atlantic removed Gary Roy, a

union supporter who had signed an authorization card on April 6,

from a light duty assignment and placed him on full worker's

compensation pending further investigation of his condition.

North Atlantic fired Roy a month later on May 22. Also on May

22, North Atlantic laid off another driver in the unit, Marc

Kiroac, for "lack of work," although Kiroac had worked over 60

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hours in each of the previous two weeks, and was recalled one

week after the election. And on April 21, North Atlantic

transferred a salesman, Michael McDermott, a union opponent,

back into the bargaining unit as a driver in order to dilute

support for unionization. McDermott did not want to transfer

and told other drivers that he was eager for the election to be

over so he could go back to his sales job.

President Carabott held two mandatory employee meetings

to discuss his opposition to unionization. At the meetings,

Carabott questioned employees directly about their reasons for

supporting unionization, and told them they could work down the

street if they wanted a union. He also said that he would get

out of the business when it stopped being "fun," and spoke about

a friend's company that went out of business after employees

chose unionization. This was an implied threat that North

Atlantic would go out of business if the drivers won

representation rights. Calling the unionization effort a

"battle in a war," Carabott said that he would not lose this

war. He warned that unionization would be futile because there

would be no extra benefits even if the employees chose union

representation, and that although a union could offer anything,

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he had the final say as to what would be given. Carabott also

announced a new "open door policy" and solicited grievances from

employees, and implied that he would suspend that policy if

employees unionized.

North Atlantic also distributed two anti-union

memoranda to employees shortly before the June 1 election. In

the second memo, which accompanied paychecks, Carabott wrote

that unionization could "endanger the financial stability of

this company and also the livelihood that enables you to provide

for your family" because customers would be unlikely to continue

to do business with a unionized company due to the threat of

strikes. Carabott also warned that a strike "means loss of

business and loss of jobs."

Meanwhile, on April 20, three days after it received

the representation petition, North Atlantic fired Field Service

Manager Custer, purportedly for failing to competently perform

his responsibilities as service manager. The Union filed a

discriminatory discharge charge on Custer's behalf on May 22.2

The Union argued that Custer was an employee, fired in

2 That charge was still pending at the time of the
election.

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retaliation for his support of unionization. Custer attended

four more union meetings before the June 1 election, but did not

pressure employees to support unionization. He asked some

employees in general terms whether they planned to vote for the

Union, and told them that they should only do so if they were

"110 percent sure" because President Carabott would fiercely

resist unionization. Custer also voted in the June 1 election.3

After the election, the Board held a hearing to resolve

challenges to several of the ballots. The Board rejected North

Atlantic's challenge to the Union's majority status based on

Custer's pro-union activities. Further, the Board found that

North Atlantic committed numerous unfair labor practices,

including firing several employees in retaliation for their

union support, making unilateral changes to evaluation and

compensation policies, threatening employees with job loss, and

telling employees that unionization was futile because having a

union would not result in improved benefits.

3 On July 22, Custer's discriminatory discharge claim was
dismissed after a finding that Custer was a supervisor, not an
employee, and therefore was not protected by the Act from
discharge. That decision was not appealed.

-8-
 In light of North Atlantic's unfair labor practices,

the Board concluded that a remedial bargaining order was

warranted, requiring North Atlantic to recognize and bargain

with the Union.

The Board ordered North Atlantic to cease and desist from the

unfair labor practices and from interfering with or coercing

employees in the exercise of their rights under the Act. North

Atlantic was also required to offer reinstatement to the fired

employees and to compensate all employees for losses caused by

its unfair labor practices. Finally, the Board ruled that the

remaining valid ballots were to be counted and, if the Union

received a majority of the valid ballots, directed the Regional

Director to certify the Union as the employees' exclusive

bargaining representative.4 The Board ordered the Regional

Director to set aside the election if the Union did not receive

a majority of the ballots cast.

The Union was certified after a revised tally revealed

that the Union indeed had won the election, by a count of eight

4 The record does not reveal the reason for the seeming
anomaly of a bargaining order followed by an order to count
ballots. It may be that the Board was simply providing
alternative grounds, should one prove infirm on judicial review.

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to two. But North Atlantic again refused the Union's request

for recognition and bargaining, claiming that the Union had been

improperly certified because Custer's pro-union activities

tainted the election, requiring it to be set aside. Acting on

a Union complaint, the Board's General Counsel issued an unfair

labor practice complaint and the Board granted its motion for

summary judgment against North Atlantic. The Board found that

North Atlantic had not produced any new evidence or special

circumstances requiring the Board to alter its earlier decision

that Custer's activities did not taint the representation

proceedings. The Board concluded that North Atlantic's refusal

to bargain with the Union violated the Act and again ordered

North Atlantic to bargain with the Union and to cease and desist

from interfering with, restraining, or coercing employees in the

exercise of their rights under the Act.

In its petition for enforcement, the Board seeks

summary affirmance of its findings that North Atlantic committed

several unfair labor practices, which North Atlantic does not

challenge on appeal. Further, the Board seeks affirmance of its

finding that the Union achieved a valid card majority which,

combined with the numerous unfair labor practices, led the Board

-10-
to certify the Union as the exclusive bargaining representative;

that certification formed the basis of the Board's remedial

bargaining order and refusal to bargain unfair labor practices

finding in 1995. The Board also requests affirmance of its

finding that North Atlantic violated the Act by refusing to

bargain with the Union after it won the election and was again

certified as the exclusive bargaining agent in 1999. North

Atlantic seeks review of the Board's orders.

II.

The ultimate issue here is whether North Atlantic has

an obligation to bargain with the Union, as ordered by the

Board. There are two bases for the Board’s bargaining orders.

First, there is a Gissel bargaining order, which provides a

basis for a bargaining order irrespective of the outcome of the

election because the Board found North Atlantic had committed

massive unfair labor practices, sufficient to render a fair

election improbable, and the Union had obtained an authorization

card majority. See NLRB v. Gissel Packaging Co., 395 U.S. 575, 600,

610, 613 (1969) (Board can impose bargaining obligation on employer

which refuses to recognize union that has obtained card majority and

commits unfair labor practices "likely to destroy the union's majority

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and seriously impede the election"). Second, an election was held

and the Union won, and so that is another basis for the

obligation to bargain. See NLRB v. Horizon Air Servs., Inc., 761

F.2d 22, 28 (1st Cir. 1985). North Atlantic seeks to undermine

both of these grounds for the bargaining orders with the same

argument: the pro-union activities of the supervisor

constituted a threat, albeit indirect, to employees that if they

did not vote for the union there would be consequences, and so

it cannot be said there was a fair and free choice made.

Because the parties have done so, we treat the analysis of the

two grounds as the same; any variations are not material for

resolution of the issue.5

Normally in representation cases, our review of the

NLRB determinations is for abuse of discretion. Fall River Sav.

Bank v. NLRB, 649 F.2d 50, 56 (1st Cir. 1981). The Board has

"broad discretion to determine whether the circumstances of an

election have allowed the employees to exercise free choice in

deciding whether to be represented by a union," Comcast

5 For example, there is no claim here that the supervisor
solicited union authorization cards. Cf. NLRB v. WKRG-TV, Inc.,
470 F.2d 1302, 1313-15 (5th Cir. 1973).

-12-
Cablevision-Taylor v. NLRB, 232 F.3d 490, 494 (6th Cir. 2000)

(citations omitted), and we take the Board's findings of fact to

be "conclusive if supported by substantial evidence on the

record considered as a whole," Visiting Nurse Servs. of Western

Mass., Inc. v. NLRB, 177 F.3d 52, 56 (1st Cir. 1999) (citations

omitted), cert. denied, 528 U.S. 1074 (2000). However,

discretion is abused if an incorrect legal standard is used.

See Soto v. Flores, 103 F.3d 1056, 1063 (1st Cir.) (district

court abuses discretion when it makes error of law), cert.

denied, 522 U.S. 819 (1997). North Atlantic fashions its

argument in this raiment, urging us to adopt the standards used

by the Ninth Circuit in NLRB v. Island Film Processing Co., 784 F.2d

1446 (9th Cir. 1986), standards which it views as making it easier

to show that the supervisor’s activities amounted to implicit

coercion, even when not overt. The Board resists and says the

Island Films view is an outlier, and is inconsistent with First

Circuit precedent. Our review of the Board's conclusions of law

is de novo. Visiting Nurse Servs., 177 F.3d at 56.

Both an organizing campaign and an election involve the

balancing of First Amendment freedoms of expression against the

need to prevent coercion of employees, and the balance is meant

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to preserve the employees’ ability to make a free choice. The

First Amendment protections concerned Congress when it enacted

the National Labor Relations Act, and so it provided in 29

U.S.C. § 158(c):

The expressing of any views, argument, or
opinion, or the dissemination thereof,
whether in written, printed, graphic, or
visual form, shall not constitute or be
evidence of an unfair labor practice under
any of the provisions of this subchapter, if
such expression contains no threat of
reprisal or force or promise of benefit.

The Board tells us it has attempted to be even-handed

in its application of the rules imposing consequences for

certain speech, recognizing that neither the employer nor the

union side may alter the balance in an election by threats of

reprisal or promises of benefits. And the Supreme Court tells

us that Congress intended the Board to have a wide degree of

discretion "in establishing the procedure and safeguards

necessary to insure the fair and free choice of bargaining

representatives by employees." NLRB v. A.J. Tower Co., 329 US

324, 330 (1946). The Board's discretion is not unlimited and

the Supreme Court has reversed it where it has violated the

basic principle that "[a]ny procedure requiring a 'fair'

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election must honor the right of those who oppose a union as

well as those who favor it. The Act is wholly neutral when it

comes to that basic choice." NLRB v. Savair Mfg. Co., 414 U.S.

270, 278 (1973).

Under the Board's rules, a party may bring a challenge

to election results before the Board "only where compelling

reasons exist therefor," including grounds that a "substantial

question of law or policy is raised" not governed by Board

precedent or that there was a prejudicial error. See 29 C.F.R.

§ 102.67(c). But a party cannot seek direct court review of the

Board's certification decisions; it can only challenge

certification in the context of a refusal to bargain unfair

labor practice charge. See NLRB v. S. Prawer & Co., 584 F.2d

1099, 1101 (1st Cir. 1978). The side claiming taint of an

election, or any unfairness that warrants the election being set

aside, bears the burden of proof on the issue. See Comcast

Cablevision, 232 F.3d at 494 (party seeking to overturn election

"bears the burden of showing that the election was not conducted

fairly") (internal quotation marks omitted); cf. NLRB v. Dobbs

House, Inc., 613 F.2d 1254, 1256 (5th Cir. 1980) (courts have

added as an "additional requirement" that burden is on party

-15-
seeking Board review of election to "present specific evidence

which prima facie would warrant setting aside the election")

(internal quotation marks omitted). Bearing in mind that a

party seeking to set aside an election bears a "heavy burden" of

demonstrating that the Board abused its discretion, Melrose-

Wakefield Hosp. Ass’n v. NLRB, 615 F.2d 563, 566 (1st Cir.

1980), we review the Board's decision that the supervisor's

involvement did not interfere with employee free choice here.

The role of a supervisor attempting to help the union

organize his workplace might be thought a bit odd, and here, as

is often true, there was a dispute about whether the supervisor

was really a supervisor or was an employee. See, e.g., Wright

Memorial Hosp. v. NLRB, 771 F.2d 400 (8th Cir. 1985); NLRB v.

Northeastern Univ., 707 F.2d 15 (1st Cir. 1983). Here, the

Board ruled that the individual was a supervisor. A pro-union

supervisor presents two possible scenarios which could

interfere with a fair and free election. The first is

confusion; the second is coercion. There may be confusion felt

by employees about the message from management if one of

management’s own, a supervisor, urges the union upon employees.

Or there may be a second effect, that a supervisor may

-16-
explicitly or implicitly coerce employees into voting for the

union. See Fall River Sav. Bank, 649 F.2d at 56 (employees might

support union "out of fear of retaliation" by pro-union supervisor).

This case does not raise the first concern. The

employer left no one in doubt of its anti-union position, as the

uncontested findings of unfair labor practices against it

attest. Indeed, supervisor Custer, in his debut on this issue,

warned other employees that North Atlantic president was

virulently anti-union. Accord Catholic Med. Ctr. v. NLRB, 620

F.2d 20, 22 (2d Cir. 1980) (supervisor's support of union posed

no risk of confusion about employer's position in view of its

"vigorous campaign against the Union").

And so we turn to the second concern: whether there has

been explicit or implicit coercion. While this Circuit has not

had an abundance of these cases, the few existing decisions

establish the principle that "without evidence of any threats,

express or implied, [the fact that supervisors favor a union ]

does not compel a finding of coercion." Fall River Sav. Bank,

649 F.2d at 57, quoted in Northeastern Univ., 707 F.2d at 18.

Both sides make rather too much of this statement, since it

pertains only to whether such evidence alone would compel a

-17-
finding of coercion, contrary to the Board’s conclusion that

there was no coercion. It is, for example, equally true that

the fact that the employer opposes a union does not compel a

finding of coercion. That is different from the question of

whether the Board could find implicit coercion from the fact

that a strong supervisor was pro-union. It is also very

different from the question that concerns us: whether the

Board’s finding is supportable that a pro-union supervisor, by

his conduct and his speech, did not invalidate free choice. But

there is an important point: when the factual predicates for

the Board’s decisions are attacked, they may not be set aside

unless the record compels a different conclusion, and so it can

be said that the decision is not supported by "substantial

evidence." NLRB v. Hosp. San Pablo, Inc., 207 F.3d 67, 70 (1st

Cir. 2000) (court must accept Board's factual findings "unless

those findings are not supported by substantial evidence on the

record considered as a whole") (internal quotation marks and

citations omitted). We evaluate the Board’s finding by

examination of certain factors set forth in Board and court

cases involving claims of coercion or reward by pro-union

supervisors.

-18-
 The initial focus is on whether there were coercive

actions by the supervisor against anti-union employees, actions

such as discharge, surveillance, coercive investigation, or

rewards. Similarly, courts focus on whether there were words

that amounted to an express threat or promise of reward. See

Gissel, 395 U.S. at 615. This case involves none of these. Cf.

Comcast Cablevision, 232 F.3d at 495 (reversing NLRB and

invalidating election where union offered employees free weekend

trip at the union's expense).

Instead, this case involves the more subtle question

of whether the conduct and speech of the supervisor amounted to

implicit threats or coercion. The Board has generally

considered the specific facts and circumstances and looked to

three areas of inquiry: the nature of the supervisory

authority, the nature of the activity and speech of the

supervisor, and the context in which the supervisor acted.

The first line of inquiry looks to the scope of the

supervisor's role over the employees to determine whether the

supervisor has the actual ability to harm the interests of the

employees or to reward them. See Fall River Sav. Bank, 649 F.2d

at 57 (Board relied on limited power of branch managers to

-19-
retaliate against tellers in finding no coercion); cf.

Harborside Healthcare, Inc. v. NLRB, 230 F.3d 206, 210-11 (6th

Cir. 2000) (analyzing nature of supervisory authority to

determine whether effect of charge nurse's conduct was

coercive). There is nothing unreasonable about such an inquiry;

indeed, an immediate low-level supervisor may have much more

actual power to coerce or to reward than someone with a higher

title in the corporate totem pole. This line of inquiry

generally involves questions about the role of the supervisor in

hiring, firing, wages, promotions, and other job benefits.

Here, the Administrative Law Judge made exactly this inquiry,

albeit on the question of whether Custer was a supervisor at

all, and concluded that Custer "had the authority to effectively

recommend personnel actions with respect to raises, hiring,

discipline and overtime and he responsibly directed employees in

at least some respects."

The period of time that this supervisory authority

existed is also relevant. The ALJ noted that Custer was

terminated by North Atlantic early in the organizing campaign.

Although Custer continued to attend union meetings, he no longer

had workplace authority. The ALJ acknowledged that this fact

-20-
alone was not dispositive in the Union’s favor, given the

precedent of NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932

(7th Cir. 1983). There, a hearing was held on claims of taint

resulting from the pro-union activity by a supervisor who was

fired. Unlike here, there was a reasonable chance the

supervisor would be returned to her position as a supervisor,

thus raising the possibility of coercion. Here, there was, to

quote the ALJ, "no realistic possibility" of such coercion

because the Union's claim that Custer had been wrongly fired

depended on Custer being characterized as an employee and not as

a supervisor. If Custer had been returned to work as a result

of the Union’s filing of an unfair labor practice charge, his

position would have been as an employee, not a supervisor.6

The second area of inquiry has to do with a very fact-

intensive examination of the activities and speech of the

supervisor. The ALJ found that Custer's pro-union activity was

very limited: he attended union meetings, but when he spoke, it

6 It is theoretically possible, of course, that other
employees might nonetheless perceive him, despite his being
characterized by the ALJ as an employee, to have some sort of
supervisory power over them. This case, as the facts described
later show, does not raise any such issue of perceived
authority.

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was mostly to say that the employees would have a tough time

getting a union given the attitude of North Atlantic president.

Custer's most explicit statements of union support came, not

surprisingly, after he had been fired. He had no supervisory

authority then. The ALJ also noted the lack of certain

evidence. There was no evidence, for example, that Custer

passed out or collected authorization cards, campaigned for the

Union while he was a supervisor, or made promises or engaged in

any form of coercion to further his pro-union views. And there

was no evidence from which it could be reasonably inferred that

other employees felt Custer was trying to force them to support

the Union.

On this last point, there is an evidentiary refinement.

The Supreme Court in Gissel cautioned against after-the-fact

evidence from employees as to whether they had felt coerced in

any way, noting that even that testimony could be subject to

coercion. See 395 U.S. at 608 (employee's testimony about subjective

perception of coercion may be unreliable due to employee's desire to

curry favor with employer). We understand the ALJ to have kept

this principle in mind and to be referring to other evidence

from which such coercion could be inferred. But despite the

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caution in Gissel, it is also clear that on the question of

whether someone is a supervisor, the perceptions of other

employees may be taken into account. See Fall River Sav. Bank,

649 F.2d at 57 n.7 (relying on employees' testimony in

determining lack of threat); cf. Int'l Assoc. of Machinists v.

NLRB, 311 U.S. 72, 79-80 (1940) (acts of perceived supervisors

are to be accorded same weight as acts of actual supervisors if

acting as agents of employer in election cases). Since many of

these cases involve both questions -- supervisory coercion and

supervisory status -- there is no bright line evidentiary rule

permitting or excluding such evidence per se. Cf. NLRB v.

Chicago Metallic Corp., 794 F.2d 527, 531 (9th Cir. 1986)

(appropriate in "borderline cases" to consider whether person is

perceived as a supervisor).

Finally, there is an examination of context. As the

ALJ found, North Atlantic had itself engaged in coercion and

discrimination in an effort to stop the Union. In this context,

"the employees could not possibly believe . . . that they had

anything to fear by offending Custer and opposing the Union."

Again, there was no suggestion that this fact of North

Atlantic’s strong anti-unionism was dispositive. It may well be

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that a supervisor could engage in pro-union coercion even while

the company is virulently anti-union. See WKRG-TV, 470 F.2d at

1315, n.8 ("[R]easonable fear of supervisory retaliation can be

present even if the company hierarchy has openly opposed the

union.").

Viewing all the facts, the Board concluded there was

no conduct or speech by supervisor Custer that would give rise

to an inference of coercion, and therefore no basis to

invalidate either the authorization cards or the election. The

Board's determination of whether a supervisor's conduct tainted

an election is "essentially a matter of drawing inferences, and

it has long been settled that an agency's conclusions based upon

such inferences should not be set aside by a reviewing court

unless they transgress the bounds of reason." Catholic Med.

Ctr., 620 F.2d at 22. Here, the Board's conclusion is

reasonable and very far from an abuse of discretion.

North Atlantic attacks this conclusion by saying that

it has been held to too high a standard of proof. All it needs

to show, it says, relying on the Ninth Circuit decision in

Island Film, is that the pro-union supervisory activity would

"reasonably tend" to have a coercive effect, and does not need

-24-
to show actual proof of coercion. It also says that in most of

these sorts of cases, where management loses, management is

aware of what its wayward supervisors are doing and does nothing

in response. See NLRB v. Lamar Electric Membership Corp., 362 F.2d

505, 506-07 (5th Cir. 1966) ("[W]here the employer knows of the

advocacy and takes no steps to dissipate its effect, such

advocacy may not be used as

a basis for setting aside the election."); see also Fall River

Sav. Bank, 649 F.2d at 56 n.5 (employer who fails to exercise

authority over known pro-union activities by supervisor "may not

later be heard to complain of the results of its inaction").

North Atlantic should not be put in that category, it says,

because it did not know what Custer was doing until the day of

the election. More than that, it says, North Atlantic should

prevail because it had no opportunity to respond to what Custer

was doing. The harm Custer did, North Atlantic argues, is

magnified because the bargaining unit was very small and only a

few votes would make a difference in the outcome.

There are three difficulties with North Atlantic’s

argument. First, it makes no allowance for the fact that

judicial review is deferential to the Board, unless the Board's

-25-
decision is "arbitrary and capricious" or its findings not

supported by substantial evidence. NLRB v. Beverly

Enterprises-Massachusetts, Inc., 174 F.3d 13, 34 (1st Cir.

1999). There is no serious claim that the Board's position

violates the Act, cf. NLRB v. Health Care & Retirement Corp.,

511 U.S. 571, 574-584 (1994), or that it is an unreasonable

interpretation of an ambiguous statute, see NLRB v. Hilliard

Development Corp., 187 F.3d 133, 140-41 (1st Cir. 1999). The

decision is neither arbitrary and capricious nor unsupported.

Secondly, the facts as found by the ALJ simply do not raise the

questions posed by North Atlantic. The ALJ found that the

activities of the supervisor were so minimal that no "reasonable

possibility" of taint emerged. That was so whether or not

management knew of Custer’s activities. Thirdly, we think that

North Atlantic may overread Island Films. We do not, initially,

read it as saying that no proof of coercion, either express or

implied, need be offered.7 Although Island Films purported to

7 If, on the other hand, we misunderstand Island Film and
it does hold that mere supervisory status alone compels a
finding of coercion, or to use the language of that opinion,
that such status alone is sufficient to show that the activity
reasonably tends to have a coercive effect, then the Board is
correct that such a rule is in conflict with First Circuit law,

-26-
establish a standard that "[s]upervisory activity need only

'reasonably tend' to have a coercive effect on or 'likely to

impair' [sic] an employee’s choice," 784 F.2d at 1451, we do not

take that language as intended to establish a new standard of

judicial review, as North Atlantic here suggests, apart from the

usual abuse of discretion and substantial evidence standard,

which we apply. The Ninth Circuit itself has disavowed these

two readings of Island Film. See Napili Shores Condominium

Homeowners' Ass'n v. NLRB, 939 F.2d 717, 718-19 (9th Cir. 1991)

(applying usual deferential standard and holding that pro-union

supervisory participation does not per se invalidate election).

For these reasons, we grant the Board's petition for

enforcement of its orders and dismiss North Atlantic’s petition

for review.

by which we are bound.

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