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.
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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.
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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
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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).
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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
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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
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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
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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.
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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
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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
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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
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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
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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,
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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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