United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 1, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-61032
_______________________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
VISTAR,
Respondent.
On Application for Enforcement of an Order of the
National Labor Relations Board
Before JONES, Chief Judge, and DeMOSS and OWEN, Circuit Judges.
PER CURIAM:*
Vistar of Dallas (“Vistar”) petitions for review of an
adverse order issued by the National Labor Relations Board (“the
Board”). Because substantial evidence supported the Board’s
determination that Vistar unlawfully refused to bargain with its
union, we DENY the company’s petition, and GRANT the NLRB’s cross-
application for enforcement.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I. Background
In September 2003, the General Drivers, Warehousemen, and
Helpers Local Union 745 (“the Union”) filed a petition with the
NLRB seeking to represent the drivers employed at Vistar’s Dallas
facility. Vistar subsequently agreed to conduct an election by
secret ballot at its facility to determine union representation for
only those “drivers employed by the Employer at their location
located at 5225 Investment Drive, Dallas, TX 75236.” Excluded from
participating in the election were “[a]ll other employees,
including office clericals, salespeople, warehouse employees,
engineers, and guards, including supervisors and managers as
defined in the [National Labor Relations] Act.”
The election took place on October 24, 2003, and was
extremely close, with a preliminary result of 17-14 in favor of the
Union. An additional five votes were challenged. Two votes, those
of Luke Jackson and William Malone, were challenged by the Union on
the ground that the two men were supervisors at the time of the
election and were therefore ineligible to vote. The NLRB
challenged three votes, those of Joe Vaz, Raymond Falcon, and Eric
Mattingly, on the ground that they were not drivers on the day of
the election. Finally, Vistar objected to the election in its
entirety, on the ground that Vaz, as a supposed agent of the Union,
engaged in unlawful electioneering near the polling place.
2
A formal hearing was held on November 24, 2003, to
evaluate these challenges and objections. In his report and
recommendations, the hearing officer recommended that the Board
certify the Union. Specifically, the hearing officer concluded
that three ballots, including Malone’s, should be counted. The
hearing officer also concluded that two ballots, including
Jackson’s, should be excluded, and that Vaz’s behavior did not
warrant setting aside the election.
Vistar filed timely exceptions to the hearing officer’s
report and recommendations. The company challenged only the
hearing officer’s findings as to Jackson’s status at the time of
the election and Vaz’s election day behavior. On June 24, 2004, a
panel of the Board adopted the hearing officer’s report and
recommendations. This decision meant that the final result in the
union election was 17-14 in favor of the Union, with two votes
unopened. Because these two votes would not be determinative, the
Board certified the Union as the Vistar drivers’ exclusive
collective bargaining representative.
Vistar subsequently refused to engage in collective
bargaining with the Union. The Board issued a complaint alleging
a violation of the National Labor Relations Act, 29 U.S.C.
§§ 158(a)(1),(5). Vistar reiterated its contention that the
certification of the Union was invalid. On September 30, 2004, the
Board declined to reexamine Vistar’s complaints, and ordered Vistar
to cease and desist from refusing to bargain with the Union.
3
Cross-petitions in this court for review and enforcement of the
Board’s order followed.
II. Discussion
A Board order “requiring an employer to negotiate with a
union will be enforced if the NLRB’s decision to certify the union
is ‘reasonable and based upon substantial evidence in the record.’”
Avondale Indus. v. NLRB, 180 F.3d 633, 636 (5th Cir. 1999)(quoting
NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th Cir. 1994)).
The certification order’s validity depends in turn upon the
validity of the underlying representation election. Avondale,
180 F.3d at 636; NLRB v. Hood Furniture Mfg. Co., 921 F.2d 325, 328
(5th Cir. 1991). Under the substantial evidence standard, this
court may not “displace the Board’s choice between two fairly
conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 480, 71 S. Ct. 456,
460 (1951). With these broad standards in mind, we turn to the two
issues raised by Vistar.
A. Jackson’s Status
Vistar first argues that Jackson was employed as a
“driver” at the time of the election and was eligible to vote in
the representation election under the terms of the agreement
between Vistar and the Union. In interpreting a voter eligibility
agreement, this court looks to the parties’ intent with regard to
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the disputed employee. Knapp-Sherill Co. v. NLRB, 488 F.2d 655,
659 (5th Cir. 1974). Absent evidence indicating that the parties
agreed to apply a different standard to their agreement, such
disputes are resolved according to NLRB principles. Id. As the
party challenging a voter’s eligibility, Vistar bears the burden of
establishing that the Board’s eligibility determination was
erroneous. Id.
Vistar and the Union agreed that only drivers were
eligible to vote in the representation election, and that “all
other” employees were ineligible. On October 16, 2003, Vistar
announced Jackson’s promotion to a supervisory position. On
October 18, Jackson worked his last day as a driver, and on
October 20, he was removed from his driving routes and received a
new job title and pay grade. The election took place on
October 24. Nevertheless, as Vistar notes, Jackson does not appear
to have assumed supervisory authority as the term is understood
under the National Labor Relations Act, 29 U.S.C. § 152(11), until
at least November 16.
Jackson’s eligibility depends solely on whether he was
employed as a driver on the day of the election. Thus, Vistar’s
argument that Jackson was not a supervisor on October 24 is
misplaced, even if it is correct under the statute. The Board
sustained the Union’s challenge to Jackson’s ballot because “he was
not employed and working in the Unit” on election day, not because
Jackson had become a supervisor. That Jackson may not have become
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a full supervisor on October 24 does not mean that he was a driver;
the Board’s holding that Jackson was not employed as a driver is
supported by substantial evidence and will not be disturbed.1
B. Vaz’s Conduct
Vistar next argues that Vaz, as a union agent, unlawfully
interfered with the representation election. Although the NLRB
aspires to enforce “laboratory conditions” on election day, this
court has recognized that this is an “unattainable goal,” and that
the court should therefore remain conscious of “the realities of
industrial life” in reviewing the validity of a representation
election. McCarty Farms, 24 F.3d at 728 & n.2. A representation
election is not lightly set aside, and there is a strong
presumption that ballots cast under NLRB safeguards represent the
true desires of employees. Hood Furniture, 941 F.2d at 328. We
must, however, carefully scrutinize misconduct allegations where
the election results were close. McCarty Farms, 24 F.3d at 728.
1
Vistar’s argument in the alternative that Jackson was a supervisor
trainee, and had the requisite “community of interests” with rank-and-file
employees to vote, similarly misses the mark. The “community of interests” test
was developed in Curtis Indus., a Div. of Curtis Noll Corp., 218 N.L.R.B. 1447
(1975), a case that concerned whether management trainees were protected by the
National Labor Relations Act, not whether such workers were part of a particular
bargaining unit. See NLRB v. Kent Corp., 564 F.2d 186, 188 & n.3 (5th Cir.
1977)(explaining Curtis). As discussed, supra, the issue in the instant case is
whether Jackson was a driver on October 24. The record indicates that save a
single occurrence, date unknown, in which Jackson filled in for a sick driver —
a common practice for Vistar supervisors — Jackson performed no work as a driver
after October 18. Instead, he trained with supervisors before assuming his own
supervisory post on November 16. As such, the Board’s decision was entirely
consistent with the NLRB principle that an employee’s “actual status” at the time
of a representation election determines his or her eligibility to vote. Nichols
House Nursing Home, 332 N.L.R.B. 1428, 1429 (2000).
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In its decision, the Board concluded that Vaz was not a
union agent, and therefore applied the Hood Furniture test for
misconduct by third parties, which requires a showing of misconduct
“so aggravated that a free expression of choice of representation
is impossible.” Id. at 330. Vaz’s conduct falls far short of this
standard. Vistar urges this court to apply the stricter test for
misconduct by a party to a representation election, whereby an
election will be invalidated by any misconduct that had “a tendency
to influence” its outcome. NLRB v. Gulf States Canners, Inc.,
585 F.2d 757, 759 (5th Cir. 1978).
The record indicates that Vaz stationed himself on or
near the ramp and walkway that led to Vistar’s facility. He spoke
to five drivers in the parking lot or on the ramp, each time making
brief, personal pleas for the drivers’ votes in favor of
recognizing the Union. Additionally, after driver Terrence
Shepherd had finished voting, Vaz approached Shepherd and asked him
how he had voted. None of these conversations took place in
designated no-electioneering zones, and the ramp and parking lot
were at least forty feet from the polling area.
The hearing officer aptly compared Vaz to a union
supporter found not to be an agent in United Builders Supply Co.,
287 N.L.R.B. 1364 (1988). Based on this conclusion, the Board’s
application of Hood Furniture’s third-party misconduct standard was
proper. But even assuming arguendo that Vaz was acting as a Union
agent on October 24, his conduct was not so harmful that it had a
7
tendency to influence the election. The instant case is nearly
identical to the facts of Boston Insulated Wire & Cable Sys., Inc.
v. NLRB, 703 F.2d 876 (5th Cir. 1983). In that case, union agents
spoke to employees and handed out pamphlets as the employees walked
from the parking lot and through a set of doors on their way to the
polling place. Applying the “tendency to influence” test, this
court denied the employer’s petition for review, finding
(1) that the electioneering was not directed to employees
waiting in line to vote; (2) that the electioneering did
not occur at the polling place or in a no-electioneering
area; (3) that the company never complained to the Board
agent during the election; and (4) that the Board agent
never instructed the union not to pass out the
literature.
Id. at 882. Three of the four of the reasons listed in Boston
Insulated apply here, and Vaz did not hand out literature to the
voters. Further, the cases cited by Vistar are readily distin-
guishable. In NLRB v. Carroll Contracting & Ready-Mix, Inc., 636
F.2d 111 (5th Cir. 1981), voters were spoken to by union supporters
while they waited in line to vote; additionally, the concerns of
the employer regarding parking lot electioneering had been brought
to the attention of the Board agent before the election.2 Id. at
112-13. Similarly, in Pepsi-Cola Bottling Co., 291 N.L.R.B. 578
(1988), the challenged conduct occurred in a no-electioneering zone
2
The case of Nathan Katz Realty LLC v. NLRB, 251 F.3d 981 (D.C. Cir.
2001), which held that union conduct within a no-electioneering zone could
substantially impair voters’ exercise of free choice, is also distinguishable
from the instant case. In Katz, the activities of union agents were contrary to
NLRB instructions, and had been objected to by the employer. Id. at 992.
Neither factor is present here.
8
where there was no physical barrier between union supporters and
voters.
Thus, regardless of his agency status, under the totality
of the circumstances, Vaz did not interfere with voters’ ability to
make a free choice in the election. As the “final minutes before”
each Vistar driver cast his ballot remained “his own,” this court
will not invalidate the results of the representation election.
McCarty Farms, 24 F.3d at 729 (quoting Milchem, Inc., 170 N.L.R.B.
362, 362 (1968)).
III. Conclusion
The Board’s certification of the Union was reasonable and
was supported by substantial evidence. Therefore, the Board’s
order that Vistar cease and desist from refusing to bargain with
the Union shall be ENFORCED. Vistar’s petition for review is
DENIED, and the NLRB’s application for enforcement is GRANTED.
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