PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ASHLAND FACILITY OPERATIONS,
LLC, d/b/a Ashland Nursing &
Rehabilitation Center,
Petitioner,
v.
NATIONAL LABOR RELATIONS
BOARD, No. 11-2004
Respondent,
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
Local 400,
Intervenor.
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
Local 400,
Intervenor, No. 11-2132
v.
ASHLAND FACILITY OPERATIONS,
LLC, d/b/a Ashland Nursing &
Rehabilitation Center,
Respondent.
2 ASHLAND FACILITY OPERATIONS v. NLRB
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
(5-CA-60739)
Argued: September 20, 2012
Decided: December 14, 2012
Before KING, GREGORY, and WYNN, Circuit Judges.
Petition denied; enforcement granted by published opinion.
Judge Wynn wrote the opinion, in which Judge King and
Judge Gregory joined.
COUNSEL
ARGUED: James Phillip Naughton, HUNTON & WIL-
LIAMS, LLP, Norfolk, Virginia, for Ashland Facility Opera-
tions. Fred B. Jacob, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the National Labor Relations
Board. John Andrew Durkalski, BUTSAVAGE & ASSO-
CIATES, PC, Washington, D.C., for United Food and Com-
mercial Workers International Union, Local 400. ON BRIEF:
Kimberlee W. DeWitt, HUNTON & WILLIAMS, LLP, Rich-
mond, Virginia, for Ashland Facility Operations. Lafe E. Sol-
omon, Acting General Counsel, Celeste J. Mattina, Deputy
General Counsel, John H. Ferguson, Associate General Coun-
sel, Linda Dreeben, Deputy Associate General Counsel, Ruth
E. Burdick, Supervisory Attorney, Heather S. Beard, Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washing-
ton, D.C., for the National Labor Relations Board.
ASHLAND FACILITY OPERATIONS v. NLRB 3
OPINION
WYNN, Circuit Judge:
Ashland Facility Operations, LLC ("Ashland Facility")
petitions for review of a National Labor Relations Board (the
"Labor Board") order that Ashland Facility cease and desist
from refusing to bargain with the United Food and Commer-
cial Workers International Union, Local 400 (the "Union"). In
a cross-application, the Labor Board requests enforcement of
its order.
On appeal, Ashland Facility contends that allegedly racially
inflammatory remarks by King Salim Khalfani, executive
director of the Virginia State Conference NAACP, under-
mined the validity of a representation election certifying the
Union as the exclusive bargaining representative of certain
Ashland Facility employees. The Labor Board, however,
found that neither Khalfani nor the Virginia NAACP was a
Union agent and that Khalfani’s remarks, made months before
the election, did not taint the results. Because we conclude
that the Union was properly certified, we deny Ashland Facil-
ity’s petition for review and enforce the Labor Board’s order.
I.
A.
Ashland Facility operates a 190-bed skilled nursing facility
north of Richmond, Virginia. On a Saturday evening in Feb-
ruary 2010, an African-American certified nursing assistant
("CNA") alleged that between $200 and $250 had been stolen
from her purse. Six members of the nursing crew, five of
whom were African-American and one of whom was Cauca-
sian, were paged to the nurses’ station by two supervising
nurses and forced to empty their purses so that their supervi-
sors could check for the missing money. The two supervisors
also told one nurse to remove her shoes and one or two others
4 ASHLAND FACILITY OPERATIONS v. NLRB
to remove their jackets. The following Monday, the nurses
met with Charles Nelson, Ashland Facility’s then-executive
director, to complain about their treatment. Nelson apolo-
gized, and the two supervisors who had initiated the search
were suspended and later terminated.
In late April 2010, Khalfani sent a letter to Nelson alleging
discriminatory treatment of Ashland Facility’s African-
American employees, specifically referencing the February
incident. On May 10, 2010, Khalfani held a press conference,
attended by about fifty members of the media, during which
he decried the treatment of the "Ashland Six," his moniker for
the six CNAs subjected to the search. J.A. 209. At the press
conference, some of the nurses claimed they were "targeted
because of their skin color, publicly and illegally strip-
searched, ridiculed and later harassed." J.A. 209. One of the
six nurses, Andrea Anderson, also claimed that during winter
snowstorms in early 2010, the nurses were told that they
could not leave the building and had to sleep on the floor and
get food from vending machines. Khalfani said Ashland
Facility’s employees had been treated like "chattel enslaved
captives," and that Ashland Facility was a "cesspool of inhu-
manity that needs to be told and fixed." J.A. 209. Khalfani’s
allegations were published on the front page of the May 12-
18, 2010 issue of the Richmond Voice, a weekly newspaper
circulated widely in Richmond, and in the monthly newsletter
of a local radio station. His claims were also broadcast on sev-
eral television and radio news programs in May and June
2010.
On the same day as the press conference, Khalfani emailed
three members of the Ashland Six to set up a meeting with
representatives of the Union. Khalfani introduced the nurses
to Ken Pinkard, a vice president of the Union and one of
thirty-two members of the Virginia NAACP’s executive
board. After June 2010, Khalfani did not provide any assis-
tance to the Union in its efforts to organize Ashland Facility’s
employees.
ASHLAND FACILITY OPERATIONS v. NLRB 5
B.
On September 21, 2010, the Union filed a petition to repre-
sent a bargaining unit of "[a]ll regular full-time and part-time
CNAs, restorative aides, activity aides, and maintenance
employees; Excluding all RNs, PRNs, dietary employees,
office clerical employees, confidential employees, and guards
and supervisors as defined in the Act." J.A. 575. This marked
the beginning of the so-called "critical period"—the time
between the filing of a representation petition and the repre-
sentation election. The parties subsequently agreed to hold the
election on November 3, 2010.
One Ashland Facility employee reported that after the peti-
tion was filed, she frequently heard other employees discuss-
ing the alleged strip search of the CNAs and the "slave-like
conditions" at Ashland Facility. J.A. 358-59. Another
employee said that in the time leading up to the election, there
were rumors that only the African-American nurses had been
"strip-searched," not the Caucasian nurse, and that Ashland
Facility was firing all of its African-American employees.
J.A. 133, 135. Other employees often discussed "call[ing] the
NAACP" and "get[ting] the Union in so it would be fair for
everybody." J.A. 133. None of the witnesses identified who
initially made or repeated these statements.
Greg Ashley, who succeeded Nelson as Ashland Facility’s
executive director, held eighteen meetings and had "numerous
conversations" with the nursing staff in the weeks leading up
to the election. J.A. 146. He held the meetings "specifically
to talk about why [he] didn’t feel the Union would be in their
best interest and how [he] could solve whatever issues were
at hand." Id. Ashley said that during the meetings, employees
frequently raised concerns about the alleged strip search, the
treatment of staff during the snowstorms, and discriminatory
treatment of African-American employees.
The Union requested that Elizabeth Waddy, president of
the Hanover County NAACP, draft a letter endorsing the
6 ASHLAND FACILITY OPERATIONS v. NLRB
Union. On October 27, 2010, approximately one week before
the election, Waddy sent a brief letter to Ashland Facility
employees stating, "Dear Health Care Caregivers: The Hano-
ver County Branch of the NAACP supports [the Union] in
representing the Caregivers at Consulate Health Care [Ash-
land Facility], Ashland, Virginia. VOTE YES!!" J.A. 206. As
planned, the Labor Board held a secret-ballot election on
November 3, in which 31 votes were cast for, and 28 were
cast against, the Union.
C.
Ashland Facility filed objections to the election, alleging in
particular that "[t]he Union’s campaign was based in whole or
in substantial part on unlawful appeals to racial prejudice."*
J.A. 2. Following a hearing, an administrative law judge
("ALJ") overruled Ashland Facility’s objections and certified
the Union as the exclusive bargaining representative of the
named bargaining unit. The Labor Board subsequently
affirmed the ALJ’s recommendation. On June 6, 2011, the
Union sent a letter to Ashland Facility requesting that it bar-
gain collectively with the Union about the terms and condi-
tions of employment of Ashland Facility’s workers. In
response, Ashland Facility stated it believed that the Novem-
ber 2010 election was invalid and, consequently, refused to
bargain.
The Union filed a charge against Ashland Facility on June
30, 2011, asking the Labor Board to compel Ashland Facility
to negotiate. Two weeks later, the Labor Board’s Acting Gen-
eral Counsel issued a complaint against Ashland Facility,
alleging that it had engaged in unfair labor practices in viola-
tion of the National Labor Relations Act (the "Act"). See 29
*Ashland Facility also charged that the Union engaged in unlawful
election-day conduct and that "the election was tainted by improper, pro-
union supervisor conduct." J.A. 2-3. Neither of these claims is at issue on
appeal.
ASHLAND FACILITY OPERATIONS v. NLRB 7
U.S.C. § 158(a)(1), (a)(5). Ashland Facility admitted that it
had refused to bargain with the Union, but claimed it was not
obligated to do so because the election "was invalid and
fatally tainted by the Union’s misconduct." J.A. 723. The Act-
ing General Counsel then filed a Motion for Summary Judg-
ment on grounds that Ashland Facility did not present any
evidence or assert issues other than those already litigated in
prior proceedings. On September 16, 2011, the Labor Board
granted the motion and ordered, inter alia, Ashland Facility to
bargain with the Union.
Ashland Facility petitioned this Court for review, arguing
that the Labor Board should have set aside the results of the
representation election because it was improperly tainted by
Khalfani’s allegedly racially inflammatory comments. In par-
ticular, Ashland Facility maintains that the Labor Board erro-
neously held the Virginia NAACP was not an agent of the
Union; failed to apply the appropriate legal standard for
reviewing results of elections tainted by improper, racially
inflammatory comments; and mistakenly found Khalfani’s
prepetition comments were unrelated to improper conduct
occurring during the critical period. The Labor Board, in turn,
filed a cross-application for enforcement of its order.
II.
The results of a union representation election supervised by
the Labor Board are "presumptively valid." NLRB v. Flam-
beau Airmold Corp., 178 F.3d 705, 707 (4th Cir. 1999). The
Labor Board’s factual determinations are "conclusive" if they
are "supported by substantial evidence on the record consid-
ered as a whole." 29 U.S.C. § 160(f); see also Sam’s Club, a
Div. of Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233, 239 (4th
Cir. 1999). In reviewing mixed questions of law and fact, "the
[Labor] Board’s application of legitimate legal interpretations
to the facts of a particular case should be upheld if they are
supported by substantial evidence based upon the record as a
whole." Sam’s Club, 173 F.3d at 239. "Substantial evidence
8 ASHLAND FACILITY OPERATIONS v. NLRB
is ‘more than a scintilla’ but ‘less than a preponderance’ of
evidence." Id. (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)).
A union representation election should be conducted in a
metaphorical "laboratory in which an experiment may be con-
ducted, under conditions as nearly ideal as possible, to deter-
mine the uninhibited desires of the employees." General Shoe
Corp., 77 NLRB 124, 127 (1948). That being said, it has long
been recognized that representation elections are "heated
affair[s]" and, consequently, an election will not be set aside
"unless an atmosphere of fear and coercion rendered free
choice impossible." NLRB v. Herbert Halperin Distrib. Corp.,
826 F.2d 287, 290 (4th Cir. 1987).
A.
Ashland Facility first argues that the Virginia NAACP was
an actual or apparent agent or "close ally" of the Union when
Khalfani made the allegedly inflammatory statements, and
thus the Labor Board should have scrutinized the election
results more closely. Whether the Virginia NAACP was an
agent of the Union is significant because "[l]ess weight is
accorded the comments and conduct of third parties than to
those of the employer or union" since "third parties are not
subject to the deterrent of having an election set aside, and
third party statements do not have the institutional force of
statements made by the employer or the union." Herbert Hal-
perin, 826 F.2d at 290.
Conduct by a union or its agents can be a basis for setting
aside an election "when threats, acts of coercion, or other
improprieties occurred and ‘materially affected the election
results.’" NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 442 (4th
Cir. 2002) (quoting Herbert Halperin, 826 F.2d at 290). By
contrast, third-party conduct provides a basis for invalidating
an election "only if the election was held in a general atmo-
sphere of confusion, violence, and threats of violence, such as
ASHLAND FACILITY OPERATIONS v. NLRB 9
might reasonably be expected to generate anxiety and fear of
reprisal, to render impossible a rational uncoerced expression
of choice as to bargaining representation." Herbert Halperin,
826 F.2d at 290 (quotation omitted).
Generally, whether an agency relationship exists is a fac-
tual determination. Metco Prods., Inc. v. NLRB, 884 F.2d 156,
159 (4th Cir. 1989). Therefore, a finding by the Labor Board
that an agency relationship does not exist "will not be dis-
turbed on appeal if supported by substantial evidence on the
record as a whole." Id. (citations omitted).
This Court determines whether an agency relationship
exists according to the common law of agency. Id. Actual
agency exists "when, at the time of taking action that has legal
consequences for the principal, the agent reasonably believes,
in accordance with the principal’s manifestations to the agent,
that the principal wishes the agent so to act." Restatement
(Third) of Agency § 2.01 (2006). A putative agent has appar-
ent authority "when a third party reasonably believes the actor
has authority to act on behalf of the principal and that belief
is traceable to the principal’s manifestations." Id. § 2.03. In
the context of labor representation elections, the final inquiry
into agency "is always whether the amount of association
between the Union and [a third party] is significant enough to
justify charging the Union with the conduct." PPG Industs.,
Inc. v. NLRB, 671 F.2d 817, 822 n.8 (4th Cir. 1982).
Ashland Facility does not argue that the Union expressly
authorized the Virginia NAACP or Khalfani to act as its agent
for purposes of the organizing campaign. Instead, it contends
that the Virginia NAACP was an apparent agent of the Union.
In support of this proposition, Ashland Facility primarily
relies on our decision in Kentucky Tennessee Clay Company.
In that case, we found two employees were apparent agents
of a union when "professional union organizers had delegated
a number of specific organizing tasks to the unpaid employee
10 ASHLAND FACILITY OPERATIONS v. NLRB
organizers, including having the authorization cards signed by
the other employees, talking with the employees about the
union both in the plant and outside the plant, distributing
union literature, and helping to plan union meetings. . . .
[T]hese employees were the union’s only in-plant contact
with the other employees." Ky. Tenn. Clay Co., 295 F.3d at
444. In fact, the Court found hardly "any participation what-
soever" by the union official responsible for overseeing the
organizing campaign, whereas the putative agent employees
"were instrumental in every step of the campaign process." Id.
at 443, 445.
In its brief, Ashland Facility highlights what it contends
constitutes evidence of a close relationship between the Union
and the Virginia NAACP. For example, Ashland Facility
notes that Khalfani helped arrange the initial meeting between
members of the Ashland Six and the Union; Union Vice Pres-
ident Pinkard was also a member of the Virginia NAACP’s
thirty-two-member executive board; and Hanover County
NAACP President Waddy sent a letter to employees endors-
ing the Union. However, this evidence falls far short of show-
ing that the Virginia NAACP was "instrumental in every step
of the campaign process." Id. at 443.
Indeed, Kentucky Tennessee Clay Company can readily be
distinguished in a number of ways. Whereas the apparent
agents in Kentucky Tennessee Clay Company were actively
involved in the organizing campaign throughout the precerti-
fication campaign and critical period, id. at 443, Khalfani had
no involvement in the campaign after June 2010, more than
two months before the start of the critical period. In the Ken-
tucky Tennessee Clay Company organizing campaign, the one
union official was only "minim[ally] involve[d]," id. at 445,
whereas here, the Union had three employees who were
actively involved in the organizing campaign, ran all organiz-
ing meetings, and called employees to discuss the Union. This
is an ample factual basis to support the Labor Board’s finding
that the Virginia NAACP was not the Union’s agent.
ASHLAND FACILITY OPERATIONS v. NLRB 11
B.
Next, Ashland Facility argues that even if the Virginia
NAACP is not an agent of the Union, the Labor Board erred
in not subjecting the election results to heightened scrutiny
because Khalfani’s comments were racially inflammatory. In
particular, Ashland Facility contends that the Labor Board
should have applied the standard of review set out in Sewell
Manufacturing Company, 138 NLRB 66 (1962), which held
that when a party to an election "deliberately seek[s] to overs-
tress and exacerbate racial feelings by irrelevant, inflamma-
tory appeals," the party making such appeals bears the burden
of showing they are "truthful and germane" to the election. Id.
at 72. But Sewell is inapplicable for two reasons: (1) Khal-
fani’s comments were not "inflammatory" appeals to racial
prejudice and (2) Sewell does not govern appeals to racial
prejudice made by third-parties.
First, the Sewell standard applies only if an appeal to racial
sentiment is "inflammatory." Case Farms of N.C., Inc. v.
NLRB, 128 F.3d 841, 845 (4th Cir. 1997). An appeal to preju-
dice is inflammatory if it "can have no purpose except to
inflame the racial feelings of voters in the election." Id. (quot-
ing Englewood Hospital, 318 NLRB 806, 807 (1995)). The
limitation of Sewell to irrelevant appeals to racial prejudice
stems from the recognition that "matters of race and ethnicity
will often be important to a representation campaign." Id.; see
also NLRB v. Baltimore Luggage Co., 387 F.2d 744, 747-48
(4th Cir. 1967). Consequently, while "[a]ttempts to portray an
employer as bigoted have . . . been found to be inflammatory
in certain extreme cases," in general, appeals to racial preju-
dice will not be a basis for overturning an election so long as
they are made in the context of an effort to raise workplace
grievances or other issues of legitimate concern to employees.
Case Farms, 387 F.3d at 846.
Under this standard, this Court, on a number of occasions,
has refused to vitiate the results of an otherwise valid repre-
12 ASHLAND FACILITY OPERATIONS v. NLRB
sentation election in cases where entities advocating unioniza-
tion raised race and ethnicity as part of a campaign focused
on legitimate concerns of workers. For example, Case Farms
involved an organizing campaign at a poultry processing
plant, during which the union circulated fliers suggesting that
the company had replaced Amish workers at another plant
with Latino workers "[b]ecause they could pay Latinos less
and treat them worse." Id. at 843. We rejected Case Farm’s
petition to overturn the election certifying the union on
grounds that the flier was an improper appeal to racial preju-
dice, stating that the fliers reflected the primary issues of the
organizing campaign: "wages and working conditions." Id. at
849. Similarly, in Herbert Halperin, this Court found that the
use of racial epithets, apparently by an African-American
employee, during the course of a representation campaign was
not a basis to overturn the election where the comments were
made in the context of complaints about wages and working
conditions. 826 F.2d at 293. Finally, during the representation
election at issue in Baltimore Luggage, the NAACP distrib-
uted a letter to the largely African-American workforce
endorsing the union and noting that the union had assisted the
NAACP "in our civil rights struggles." 387 F.2d at 745. We
held that the NAACP’s endorsement was not a basis to invali-
date the election, noting that "it is highly pertinent for the pre-
dominantly Negro electorate to be told of the NAACP’s
support of the Union and the advantages which unionization
and union tactics, and particularly this Union’s favorable atti-
tude, have secured for Negroes." Id. at 747-48.
When viewed in light of this precedent, Khalfani’s com-
ments fall short of being "inflammatory." Although Khal-
fani’s comments appealed to matters of race, they were not
inflammatory because they were made in the context of rais-
ing legitimate concerns about the working conditions of
CNAs at Ashland Facility-including the search of the so-
called Ashland Six and the treatment of employees during the
snowstorms.
ASHLAND FACILITY OPERATIONS v. NLRB 13
Second, even assuming arguendo that Khalfani’s comments
were "inflammatory," Ashland Facility still must overcome
the fact that, to date, this Court has only applied Sewell in
cases in which such comments were made by a party to the
election. See, e.g., Case Farms, 128 F.3d at 845-46. The Vir-
ginia NAACP was not a party to the election but was, instead,
a third party. In fact, there is some confusion in this Circuit
regarding the appropriate level of scrutiny for elections poten-
tially tainted by inflammatory third-party appeals to racial
prejudice. Compare Flambeau Airmold, 178 F.3d at 708
(majority opinion) (asserting that the Herbert Halperin Court
applied the level of scrutiny used for improper third-party
election conduct to third-party appeals to prejudice), with id.
at 713 (Niemeyer, J., dissenting) (noting that this Court did
not find appeals to racial prejudice to be "inflammatory" in
Herbert Halperin and thus did not set out appropriate stan-
dard for "inflammatory" appeals to prejudice).
Our sister Circuits have not adopted a uniform approach to
reviewing representation elections potentially tainted by
inflammatory third-party appeals to racial prejudice. In partic-
ular, there is confusion as to whether, and to what extent,
Sewell applies in such cases. See NLRB v. Foundry Div. of
Alcon Indus., Inc., 260 F.3d 631, 635 n.6 (6th Cir. 2001). The
Seventh Circuit has suggested that Sewell applies to third-
party racially inflammatory comments, finding that such
remarks require invalidation of an election if "the inflamma-
tory remarks could have impaired the employees’ freedom of
choice in the subsequent election." NLRB v. Katz, 701 F.2d
703, 706-07 (7th Cir. 1983).
By contrast, the Ninth and Eleventh Circuits elected not to
extend Sewell to inflammatory third-party appeals to racial
prejudice, instead analogizing such appeals to threats and
other coercive conduct by third-parties. See Did Bldg. Servs.,
Inc. v. NLRB, 915 F.2d 490, 497-98 (9th Cir. 1990); M & M
Supermarkets, Inc. v. NLRB, 818 F.2d 1567, 1572-73 (11th
Cir. 1987). Under this approach, an election must be invali-
14 ASHLAND FACILITY OPERATIONS v. NLRB
dated only if a third-party’s "appeal to prejudice . . . so taint-
[ed] the election atmosphere as to render free choice of
representation impossible." Did Bldg. Servs., 915 F.2d at 498;
see also M & M Supermarkets, 818 F.2d at 1572-73 (holding
that third-party appeals to racial prejudice warrant invalida-
tion of an election if they "destroyed the atmosphere neces-
sary to the exercise of a free choice in the representation
election" (quotations omitted)).
We agree with the Ninth and Eleventh Circuits and decline
to extend Sewell to racially inflammatory comments made by
third-parties. The Sewell burden-shifting approach is poorly
suited to third-party appeals to prejudice for two reasons.
First, as the Ninth Circuit correctly explained in Did Building
Services, "parties cannot prevent supporters’ misconduct, so
. . . attaching the same weight to third-party and party actions
would lead to endless and pointless repetitions of elections."
915 F.2d at 498 (internal quotation omitted). In fact,
"[b]ecause it would be impossible to know which side a third
party favored, secretly pro-company employees could spread
inflammatory rumors favorable to the union, thus invalidating
the union’s anticipated victory, and vice versa." Flambeau
Airmold, 178 F.3d at 713 (Niemeyer, J., dissenting). Second,
were we to apply the Sewell burden-shifting approach, it
would create the absurd result that a party would bear the bur-
den of defending the veracity and relevance of comments
made by an entity not party to the case and for which it was
not responsible.
We also find the Ninth and Eleventh Circuits’ analogy to
third-party coercive conduct persuasive. This approach appro-
priately balances the need to minimize irrelevant appeals to
racial prejudice in representation elections with our long-
established position that third-party actions should be
accorded less weight in determining whether an election
should be invalidated. This Court sets aside a representation
election based on third-party threats or other coercive conduct
if the conduct "render[ed] impossible a rational, uncoerced
ASHLAND FACILITY OPERATIONS v. NLRB 15
expression of choice." Herbert Halperin, 826 F.2d at 290
(quotation omitted). Therefore, we hold that an inflammatory
third-party appeal to racial prejudice is the basis for invalidat-
ing a representation election only if the appeal made a ratio-
nal, uncoerced expression of free choice impossible.
Under this standard, Ashland Facility has failed to make a
sufficient showing to invalidate the election. The record
includes no evidence that Khalfani’s comments, made months
before the election, rendered it impossible for employees to
freely decide whether to certify the Union as their exclusive
bargaining agent. Moreover, to the extent that Khalfani’s
comments may have caused confusion, Ashland Facility had
ample opportunity to address this confusion and set the record
straight at the eighteen meetings it held with employees dur-
ing the critical period.
C.
Even assuming arguendo that Khalfani’s comments are a
potential basis for overturning the election, Ashland Facility
still must overcome the fact that the comments were made
prior to the critical period. Generally, the Labor Board "will
not consider instances of prepetition conduct as a basis upon
which to set aside an election." Dresser Indus. Inc., 242
NLRB 74, 74 (1979). However, improper conduct occurring
before the critical period may be considered when "such con-
duct adds meaning and dimension to related postpetition con-
duct." Id. Under this standard, prepetition conduct may be
considered when it is of a similar nature to objectionable con-
duct that occurs during the critical period.
For example, in In re BCI Coca-Cola Bottling Co., 339
NLRB 67 (2003), the Labor Board found that an employer’s
prepetition threats to eliminate its 401(k) program if employ-
ees joined a union were relevant when the employer made
similar threats regarding the 401(k) program during the criti-
cal period. Id. at 67-68. Similarly, in Dresser the Labor Board
16 ASHLAND FACILITY OPERATIONS v. NLRB
set aside the results of a representation election where an
employer interrogated and threatened employees in the prepe-
tition period and then engaged in similar misconduct only a
few days before the election. 242 NLRB at 74-75.
Here, Ashland Facility fails to identify any conduct occur-
ring during the critical period similar to the inflammatory
comments made by Khalfani prior to certification. Although
rumors circulated amongst Ashland Facility’s employees
regarding the Ashland Six and the treatment of employees
during the snowstorms, there is no evidence that these rumors
are attributable to the Union or its agents. See Brightview
Care Center, 292 NLRB 352, 352-53 (1989) (holding that
"isolated remarks made by unidentified employees, apparently
in the course of casual conversations among employees," did
not provide an adequate basis for setting aside a representa-
tion election).
Ashland Facility also contends Hanover NAACP President
Waddy’s letter endorsing the Union constitutes critical period
conduct related to Khalfani’s prepetition statements. Although
the ALJ found that Waddy was a Union agent in drafting the
letter, the brief letter states simply that the Hanover NAACP
supports the Union, does not reference Khalfani’s comments,
and lacks any appeal to racial prejudice. Therefore, the Labor
Board correctly found that even if the Virginia NAACP had
been an agent of the Union, Khalfani’s prepetition statements
did not provide a basis for setting aside the election.
III.
In its brief, Ashland Facility also maintains that it was
denied due process of law because the ALJ improperly lim-
ited the temporal scope of Ashland Facility’s subpoena to the
Virginia NAACP and failed to enforce the subpoena sua
sponte before certifying the election. This argument is without
merit.
ASHLAND FACILITY OPERATIONS v. NLRB 17
The Act provides that hearings conducted before the Labor
Board, and ALJs as delegatees of the Labor Board, "shall, so
far as practicable, be conducted in accordance with the rules
of evidence applicable in the district courts . . . ." 29 U.S.C.
§ 160(b). In this Circuit, district courts "enjoy nearly unfet-
tered discretion to control the timing and scope of discovery
. . . ." Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 426
(4th Cir. 1996).
Here, the ALJ limited the scope of Ashland Facility’s sub-
poena duces tecum on the Virginia NAACP to records from
the critical period. Given the latitude afforded to lower courts
on discovery issues and the limited role prepetition conduct
plays in assessing the validity of a representation election, the
restriction was not improper.
Moreover, while the Act empowers the Labor Board to
seek court aid in enforcing its discovery orders, 29 U.S.C.
§ 161(2), there is no requirement that an ALJ enforce such an
order sua sponte, see Skyline Builders, Inc., 340 NLRB 109,
109 (2003) (when a party does not seek judicial enforcement
of its subpoena, a judge is "under no obligation to continue
the hearing or to seek enforcement of the subpoena sua
sponte").
On December 16, 2010, the ALJ closed the record subject
to reopening if Ashland Facility obtained further "material"
evidence. J.A. 375-76. At that time, the ALJ said that Ashland
Facility should contact him within a week if it had any addi-
tional evidence to add to the record before he rendered his
decision. Ashland Facility did not request enforcement of its
subpoena to the Virginia NAACP and failed to contact the
ALJ within the required timeframe. Under these circum-
stances, it was within the ALJ’s sound discretion to move for-
ward with his decision to certify the election.
IV.
For the foregoing reasons, Ashland Facility’s petition is
denied, and the decision of the Labor Board is enforced.
18 ASHLAND FACILITY OPERATIONS v. NLRB
No. 11-2004 PETITION DENIED
No. 11-2132 ENFORCEMENT GRANTED