National Labor Relations Board v. Le Fort Enterprises, Inc.

United States Court of Appeals
For the First Circuit

No. 14-1917

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

LE FORT ENTERPRISES, INC.
d/b/a MERRY MAIDS OF BOSTON,

Respondent.

PETITION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert
J. Englehart, Supervisory Attorney, and David A. Seid, Attorney,
on brief for petitioner.
Scott Kamins and Offit Kurman, PA on brief for respondent.

July 1, 2015
 KAYATTA, Circuit Judge. Le Fort Enterprises, Inc. ("Le

Fort") does business as a "Merry Maids" franchise, providing

cleaning services, primarily to homeowners in and around Boston,

Massachusetts. Le Fort serves approximately 500 customers,

generates annual sales in excess of $1,000,000, and employs twenty-

nine housekeepers. Some of the housekeepers decided to try to

unionize. Over Le Fort's objection, the National Labor Relations

Board ("the Board") asserted jurisdiction and conducted a secret-

ballot election among the twenty-nine housekeepers. By a vote of

16 to 12 (with one challenged ballot), the employees voted to

select the International Association of Bridge, Structural,

Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO ("the

Union") as their exclusive collective-bargaining representative.

Rejecting Le Fort's challenge to the election, the Board certified

the Union in accord with the employees' vote. Le Fort then refused

to bargain with the Union, triggering a charge of unfair labor

practices and a Board order directing Le Fort to bargain. See Le

Fort Enters., Inc., 360 N.L.R.B. No. 119 (May 22, 2014). The Board

now petitions this court pursuant to 29 U.S.C. §§ 159(d) and 160(e)

to enforce the Board's unfair labor practice order. For the

following reasons, we reject Le Fort's objections to the Board's

jurisdiction and the election, and grant the Board's petition.

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 I. The Board's Jurisdiction

Congress empowered the Board "to prevent any person from

engaging in any unfair labor practice . . . affecting commerce."

29 U.S.C. § 160(a). "Congress intended to and did vest in the

Board the fullest jurisdictional breadth constitutionally

permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil

Corp., 371 U.S. 224, 226 (1963) (per curiam); accord NLRB v. Living

& Learning Ctrs., Inc., 652 F.2d 209, 212-13 (1st Cir. 1981). Le

Fort does not claim that it falls outside that broad statutory

grant of jurisdiction.

Le Fort relies instead on the Board's self-imposed

adoption of discretionary limits on the exercise of its

jurisdiction. See Siemons Mailing Serv., 122 N.L.R.B. 81, 82-83

(1958). Adopted in order to conserve and efficiently deploy the

Board's limited resources, see id., these limits are expressed as

minimum levels of business activity, with differing benchmarks for

retail and non-retail employers. See Bussey-Williams Tire Co.,

Inc., 122 N.L.R.B. 1146, 1147 (1959). The Board exercises

jurisdiction over a retail enterprise if it has a gross annual

business volume of at least $500,000. NLRB v. Pizza Pizzaz, Inc.,

646 F.2d 706, 707 (1st Cir. 1981) (per curiam) (citing Carolina

Supplies & Cement Co, 122 N.L.R.B. 88, 89 (1958)). The Board

exercises jurisdiction over a non-retail enterprise if its gross

outflow or inflow of commerce across state lines is at least

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$50,000. NLRB v. Somerville Const. Co., 206 F.3d 752, 755 (7th

Cir. 2000); Siemons Mailing Serv., 122 N.L.R.B. at 84-85.

The Board found Le Fort to be a retail enterprise because

its sales were "sales to a purchaser who desires 'to satisfy his

own personal wants or those of his family or friends.'" J.S. Latta

& Son, 114 N.L.R.B. 1248, 1249 (1955) (quoting Roland Elec. Co. v.

Walling, 326 U.S. 657, 674 (1946)). With annual sales of over

$1,000,000, Le Fort easily fits within the Board's jurisdiction,

even as limited by the Board, if it is indeed a retail enterprise.

Le Fort therefore argues that the Board erred in classifying it as

a retail business, and that the company does not otherwise satisfy

the discretionary standard for exercising jurisdiction over non-

retail businesses.

Such a challenge to the Board's application of its self-

imposed jurisdictional reach by a company that falls within the

Board's broad statutory grant of jurisdiction faces a steep uphill

climb. We will enforce against the Board its own self-imposed

jurisdictional limits only in "extraordinary circumstances" or

where the Board has abused its discretion. Pizza Pizzaz, Inc.,

646 F.2d at 708 ("Where statutory jurisdiction exists . . . the

Board has the administrative discretion to disregard its own self-

imposed jurisdictional yardstick. . . . When the Board disregards

its own self-imposed jurisdictional guidelines in asserting

jurisdiction on an ad hoc basis, the courts should not intervene

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unless compelled to do so by extraordinary circumstances, or unless

the Board has abused its discretion." (quoting NLRB v. Erlich's

814, Inc., 577 F.2d 68, 71 (8th Cir. 1978))).

Here, there is no plausible basis for arguing that the

Board disregarded its discretionary jurisdictional standards in

classifying Le Fort as a retail enterprise, much less that it did

so in extraordinary circumstances. As the Board found, and Le

Fort concedes, Le Fort "provid[es] home cleaning services to

residential customers." Le Fort's owner testified that his

employees "just clean houses" "99 percent of the time." Le Fort

is therefore a retail enterprise with annual revenues in excess of

$500,000, and fits well within the Board's jurisdiction, even as

limited by the Board. Le Fort's only argument to the contrary

relies on cases involving other cleaning companies determined to

be non-retail businesses. In each of those cases, though, the

employer provided cleaning services to commercial and

institutional clients, and not primarily to homeowners. Serv.

Emp. Int’l Union Local 1877, 345 N.L.R.B. 161, 162 (2005) (three

employers provided services to commercial clients); Bergensons

Prop. Servs., Inc., 338 N.L.R.B. 883, 884-85 (2003) (employer

provided services to a university); West Side Carpet Cleaning Co.,

136 N.L.R.B. 1694, 1695 (1962) (enterprise provided services to

commercial and residential customers), enforced, 329 F.2d 758 (6th

Cir. 1964).

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 II. Le Fort's Objections to the Election

A. Factual Background

The facts relevant to the election are largely

undisputed. The secret-ballot voting occurred in the kitchen of

the single building from which Le Fort operated. To enter the

kitchen, employees walked into the building's foyer, crossed

fourteen feet through the foyer into a hallway, passed through a

steel door into a two-bay garage, and then walked another fifteen

feet across the garage to a door into the kitchen.

During the voting, approximately eight employees

gathered in the foyer. Some of these employees made remarks to

other workers entering or leaving the foyer going to or from the

kitchen. The comments included the following:

 Four employees were told (or overheard others saying)

that whoever did not vote for the Union would be

dismissed, or that new employees would be dismissed

if they voted "no."1

 After they voted, one of those same four employees,

plus two other employees, were told that, if the Union

won, undocumented employees would be fired.2

1E.g., "whoever doesn't vote for the Union is going to be
thrown out, for example, the new ones." One of the four employees
did not hear the threat until after she had voted.
2E.g., "the persons who did not have papers within the
Company, if the Union would win, they were going to be thrown out."

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  Three other employees were told things like "[w]e're

counting on your vote," "[w]e need you on our side,"

or "you know how you're going to vote."

Additionally, an employee listening from another room

overheard those gathered in the foyer making derogatory remarks

about managers and employees who opposed the Union.3 None of the

electioneering occurred in any designated "no electioneering"

area. Nor were any officials or agents of the Union involved.

The hearing officer, and then the Board in affirming the

hearing officer, found that none of the foregoing conduct required

setting aside the election results. Le Fort now challenges that

conclusion, contending that the Board improperly relied on its

finding that Union agents did not make the various remarks, and

that the Board abused its discretion in concluding that the various

comments, viewed collectively, did not warrant setting aside the

election results.

B. Standard of Review

"In reviewing the Board's findings and conclusions on

the conduct of elections, the Board is entitled to a 'wide degree

of discretion' in establishing what 'safeguards [are] necessary to

insure [that the outcome reflects a] fair and free choice of

3 E.g., "pieces of trash," "prostitutes," "crackheads," and
"hag."

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bargaining representatives by employees.'" Hosp. Gen. Menonita v.

NLRB, 393 F.3d 263, 266 (1st Cir. 2004) (alterations in original)

(quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946)). The

Board's findings of fact will stand if supported by substantial

evidence. 29 U.S.C. § 160(e). As the party challenging the

election, Le Fort bears the burden of proof, and must establish

that the Board abused its discretion in upholding the election.

Hosp. Gen. Menonita, 393 F.3d at 266. The Board would abuse its

discretion if it used the incorrect legal standard. NLRB v. Reg'l

Home Care Servs., Inc., 237 F.3d 62, 67 (1st Cir. 2001).

C. Standard for Non-Party Employee Misconduct

In assessing the impact of the workers' comments, the

Board determined that the workers gathered in the foyer were not

agents of the Union, nor were they acting at its behest.

Therefore, the Board evaluated the comments' effect on the election

under a more lenient standard than it would for conduct by the

agents of the Union or Le Fort. Compare Melrose-Wakefield Hosp.

Ass'n, Inc. v. NLRB, 615 F.2d 563, 568 (1st Cir. 1980) ("Under

settled law, non-party statements require the setting aside of the

election only when they are shown to have created such an

atmosphere of fear and coercion that free choice has become

impossible."); with Overnite Transp. Co. v. NLRB, 140 F.3d 259,

264 (D.C. Cir. 1998) ("Where election misconduct is attributable

to one of the parties, the Board will overturn the election if the

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misconduct created such an environment of tension 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."

(internal quotation marks omitted)).

Le Fort does not challenge the finding that the employees

gathered in the foyer were not agents of the Union or acting at

its behest, and that therefore they were not parties to the

election. Rather, Le Fort argues that the Board, allegedly

contrary to our precedent, placed too much emphasis on this

finding. Le Fort claims that "the Board was wrong when it stated

that because co-workers made these threats[,] this somehow

nullified their credibility or their coercive nature." In this

manner, argues Le Fort, the Board ran afoul of our precedent

holding that a finding that remarks are made only by non-parties

does not preclude a finding of relevant coercion. See, e.g., NLRB

v. Newly Weds Foods, Inc., 758 F.2d 4, 10 (1st Cir. 1985) ("One

employee's remark to another can be coercive even though the

speaker is not a union agent."); NLRB v. Int'l Equip. Co., 454

F.2d 686, 688 (1st Cir. 1972) ("[A]bsence of union culpability

does not suffice if in fact an atmosphere of fear and coercion

existed[.]").

This argument fails to get out of the starting blocks.

The Board did not find that the non-party status of the hecklers

"nullified" the credibility or coercive nature of the comments.

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To the contrary, it examined the circumstances to determine whether

and to what extent the comments were credible and coercive enough

to render free choice impossible. In this manner, the Board

followed both its precedent and ours. See Westwood Horizons Hotel,

270 N.L.R.B. 802, 803 (1984) ("[T]he test to be applied is whether

the misconduct was so aggravated as to create a general atmosphere

of fear and reprisal rendering a free election impossible."); see

also Melrose-Wakefield Hosp. Ass'n, Inc., 615 F.2d at 568 (calling

the non-party standard "settled law"). In sum, we find no error

in the standard employed by the Board.

D. Applying the Standard to the Employees' Comments

We turn next to Le Fort's principal argument: that the

nature of the comments made by the non-party employees compelled

the Board to find that free choice was not possible. To assess

that argument, we consider first the comments by category, and

then cumulatively. As did the hearing officer and the Board, we

consider the following five factors to determine whether the

threats created a general atmosphere of fear and reprisal that

made a free election impossible: (1) "the nature of the threat

itself"; (2) "whether the threat encompassed the entire bargaining

unit"; (3) the extent of dissemination; (4) "whether the person

making the threat was capable of carrying it out, and whether it

is likely that the employees acted in fear of his capability of

carrying out the threat"; and (5) whether the threat occurred "at

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or near the time of the election." Westwood Horizons Hotel, 270

N.L.R.B. at 803; accord Deffenbaugh Indus., Inc. v. NLRB, 122 F.3d

582, 586 (8th Cir. 1997).

We begin with the most serious threats made: the threats

that undocumented employees would be turned in when the Union won

the election. While such threats certainly warrant scrutiny, the

Board did not abuse its discretion in concluding that the

particular threats made here did not overbear the free choice of

any voters in a manner that prejudiced Le Fort. First, all three

employees who heard these threats had already voted, and there was

no evidence that these threats were disseminated beyond those three

original listeners. Second, even if an employee had heard the

threat before voting, the threat would have more likely induced an

undocumented employee to vote against the Union, not for it. The

gist of the threat, after all, was that, if the Union won,

undocumented employees would be fired, no matter for whom they

voted.4 We fail to see how such threats could have disadvantaged

Le Fort.

4
Le Fort tries to characterize these threats as threats that
the undocumented employees would be ousted if they did not support
the Union, but the transcripts of the hearing do not support this
reading. The threats as transcribed were as follows: "when the
Union enters, when they enter into the Company, that they win,
those of us workers that do not have legal documents would be fired
from the Company. The Union was going to remove us from the
Company"; "the persons who did not have papers within the Company,
if the Union would win, they were going to be thrown out"; and
"the persons who did not have documents would be removed . . .

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 The analysis changes when we consider the threats that

the Union would secure the firing of those, especially new

employees, who did not vote for it. Those threats were directed

to at most five employees.5 Three of these employees had not yet

voted. And the threats were aimed at those who voted in a

particular manner. Thus, if an employee viewed the threat as

credible, and believed that the Union might win, she might protect

herself by voting for the Union. The problem for Le Fort is that

nothing about the nature of the threat compelled a finding that it

was credible. There is no evidence that any of the employees might

have thought that the Union would know for whom each person voted

in a secret-ballot election. Also, as found by the hearing

examiner, the rank-and-file employees conveying the threats did

not have the authority to carry out any firings. Finding threats

of this nature not credible comports with Board precedent, NLRB v.

Downtown Bid Servs. Corp., 682 F.3d 109, 116-17 (D.C. Cir. 2012);

[b]y the Union. In other words, if the Union won the persons who
did not have documents would be removed." We agree with the
hearing officer that the plain import of these threats was that
undocumented employees would be fired at the Union's behest,
regardless of whether they had supported the Union.
5It is unclear how the hearing officer arrived at five, and
not four, employees. It appears that the hearing officer may have
double-counted one employee who heard the threats.

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In Re Accubuilt, Inc., 340 N.L.R.B. 1337, 1338 (2003), and we see

no reason not to defer to such a finding here.6

We consider next the electioneering comments (e.g.,

"we're counting on your vote") and name-calling (e.g.,

"crackheads" and "pieces of trash"). Neither rose to the level of

compelling a conclusion that the election results were tainted.

The remarks were made outside any designated "no electioneering

area," by non-party co-workers, and were not directed at listeners

standing in line waiting to vote. See Overnite Transp. Co., 140

F.3d at 269-70; Boston Insulated Wire & Cable Co., 259 N.L.R.B.

1118, 1119 (1982), enforced, 703 F.2d 876 (5th Cir. 1983). The

foyer in which the comments were made was separated from the

polling room by at least 15 feet of garage bays and a closed steel

door. An election observer stationed in the polling room testified

that she heard outside voices, but that the voices were neither

loud nor distinct. In short, Le Fort has given us no reason to

disturb the Board's conclusion that the relatively mild, "rah-rah"

electioneering comments to workers on their way to the polling

place and the childish name-calling did not interfere

6
We note too that, as with the threats to undocumented
employees, some of the threats to new employees were ambiguous as
to who (the employer or the Union) would be responsible for the
firing: "[i]f I wanted to get more pay I had to vote 'yes' because
otherwise all of the new people were going to be fired"; and "if
you're new you're going to be thrown out". Le Fort makes no claim
that the hecklers could have been credibly viewed as speaking on
behalf of the employer.

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significantly with voters' free choice. See Deffenbaugh Indus.,

Inc., 122 F.3d at 586 ("[A] certain measure of bad feeling and

even hostile behavior is probably inevitable in any hotly contested

election[.]" (internal quotation marks omitted)).

Finally, given how non-existent or minimal the impact of

any of these comments was, the Board was not compelled to find

that, cumulatively, they precluded the holding of a fair election.

Le Fort complains that the Board did not "analyze[] and develop[]

. . . in the underlying proceedings" whether the cumulative impact

of the conduct justified setting aside the election. The hearing

officer did not separately and explicitly discuss the cumulative

effect of the comments. However, Le Fort did not ask that the

hearing officer undertake such a discussion. Rather, it was not

until Le Fort filed its exceptions to the hearing officer's report

and recommendation that Le Fort raised the issue of cumulative

effect. The Board, after adopting the hearing officer's findings

and recommendations, responded that it "f[ou]nd no merit to [Le

Fort's] contention on exception that the cumulative impact of the

conduct warrants setting aside the election." Le Fort Enters.,

Inc., Case No. 01-RC-097257, 2013 WL 6252456, at *1 n.2 (Dec. 3,

2013).

After putting aside Le Fort's bluster, and viewing its

challenge in its totality, we are left with little more than brief,

ambiguous, rumored threats to three employees who had not yet

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voted, made by co-workers without authority to carry out the

threats, and in the context of taunting and cajoling during a hotly

contested election. Though the voting atmosphere may have been

somewhat boisterous, Le Fort fails to satisfy its burden to show

that the Board abused its discretion in concluding that the

election was not so pervaded with fear and coercion as to render

a free choice impossible. Melrose-Wakefield Hosp. Ass'n, Inc.,

615 F.2d at 570.

III. Conclusion

The Board's petition for enforcement is granted.

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