Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2003 Decided July 6, 2004
No. 02-1266
PEARSON EDUCATION, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES,
INTERVENOR
Consolidated with
02–1324
On Petition for Review and Cross–Application for
Enforcement of an Order of the
National Labor Relations Board
Gregory J. Utken argued the cause and filed the briefs for
petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Robert J. Englehart, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, and Aileen A. Arm-
strong, Deputy Associate General Counsel. James M. Oleske,
Jr., Attorney, entered an appearance.
Barry A. Macey argued the cause and filed the brief for
intervenor.
Before: SENTELLE, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Pearson Education, Inc., (‘‘Pear-
son’’ and ‘‘the company’’) petitions for review of the National
Labor Relations Board (‘‘the Board’’ or ‘‘NLRB’’) decision
following our remand in Macmillan Publishing Co. v. NLRB,
194 F.3d 165 (D.C. Cir. 1999). After remand, the Board
reaffirmed its initial decision setting aside the first election
then certifying the Union of Needletrades, Industrial and
Textile Employees of the AFL–CIO (‘‘the union’’) as the
collective bargaining agent based on a second, otherwise
uncontested, election. Pearson refused the union’s demand
for bargaining. The Board entered a bargaining order.
Pearson now petitions for review, and the Board cross-
petitions for enforcement of its order. For the reasons more
fully set out below, we deny the company’s petition for review
and allow the Board’s cross-petition for enforcement.
I. Background
Pearson distributes and sells reference materials and edu-
cational books. In 1997, the company—then Macmillan Pub-
lishing, Inc.—operated two distribution warehouses in India-
napolis: one at Northwest Boulevard and one at Rockville
Road. In June of that year, the union petitioned the Board
to represent ‘‘all full-time and all regular part-time warehouse
and distribution center employees’’ at both facilities. Because
the company planned to consolidate and transfer its opera-
3
tions to Lebanon, Indiana, it argued that holding an election
would not effectuate the purposes of the National Labor
Relations Act (‘‘the Act’’). The NLRB’s Regional Director
found that the intended relocation did not render an immedi-
ate election inappropriate and ordered an election.
The Board denied the company’s Request for Review of the
Regional Director’s Decision and Direction of Election. The
union held the election in August. The initial results revealed
a sufficient number of challenged ballots to affect the results
of the election, and the Regional Director ordered that a
hearing be held to resolve the status of the challenged ballots.
While the election’s outcome was unknown, the union filed
eight objections to the election and the company filed four.
The Regional Director shelved these objections pending de-
termination of the election’s outcome.
Two weeks prior to the first election, the company had
announced an hourly-wage increase of $1.10—and later
$1.25—in connection with the move to Lebanon. One week
before the election the company distributed a leaflet stating:
WHAT DO YOU HAVE TO LOSE? How about:
$2,522.00 next year! TTT Without a union, Macmillan will
be free to proceed ahead with the announced wage
increases for the Lebanon move. With a union, since all
wages and benefits would be subject to negotiation, no
one can predict what the final package would be. WHY
TAKE THE RISK? VOTE NO! (emphasis in the origi-
nal).
When the company won the election by three votes, it
withdrew its objections and the Regional Director—without
passing on the rest of the union’s objections—found that the
company had circulated an improper leaflet to employees.
The union claimed the flyer ‘‘threaten[ed] employees with the
loss of the promised wage increase TTT if they selected the
union as their bargaining representative.’’
The Regional Director sustained this objection. He ex-
plained that during a union campaign, ‘‘an employer should
decide the question of granting or withholding benefits as it
4
would if a union were not in the picture.’’ Further, he stated
that the leaflet ‘‘violates this principle by leaving it in the
minds of the employees that they will lose the previously
announced raise TTT if the union is voted in.’’ The Regional
Director concluded that the company’s ‘‘mention, later in the
document (in much smaller print) that all wages and benefits
are subject to negotiation does not cure the clear implication
that the employees will not get their promised raise if the
union is voted in.’’ The Board denied the company’s request
for review of the Regional Director’s decision.
The union won the second election in June 1998, by six
votes. The company filed objections challenging the Regional
Director’s previous decision raising issues that had already
been reviewed by the Board. The Regional Director denied
the objections and certified the union as the collective bar-
gaining representative. The Board again denied the compa-
ny’s request for review of the Regional Director’s decision.
After the Board certified the union, the company refused to
bargain or provide the union with requested information.
The union charged that the company was engaging in unfair
labor practices in violation of Section 8(a)(5) and (1) of the
Act. 29 U.S.C. § 158(a)(5) and (1). On October 30, 1998, the
Board issued a Decision and Order finding that the company
had violated the Act as charged.
This Court reviewed the Board’s original decision in Mac-
millan Publishing Co. v. NLRB, 194 F.3d 165 (D.C. Cir.
1999). There, the company argued both that the first election
was premature, and that the Regional Director improperly
overturned the first election because of the flyer.
We held that the company could not successfully challenge
the order on the ground that the first election was premature
because of the impending transfer to a new facility. The
Board’s bargaining order resulted from the second election,
which the union won, not the first election, which the union
lost. The company’s move to Lebanon had already taken
place by the time of the second election. Indeed, the Region-
al Director’s predictive judgment before the first election—
that the workforce at the old locations would be a substantial
5
and representative complement of the workforce at the new
location—had proved accurate. Id. at 166.
However, we held that the Regional Director’s decision to
overturn the results of the election—on the basis of the
flyer—did not rest on sound legal principles, and thus was
arbitrary and capricious. Id. at 168. Rather than citing to
Board authorities discussing the issue of when employer
communications during union election campaigns are threat-
ening and coercive, the Regional Director instead relied on
the concept that an employer should act as if a union were not
in the picture. We held that no such principle governs
employer communications during such elections. Id.
On remand, the Board ordered a hearing before an Admin-
istrative Law Judge (‘‘ALJ’’) on all of the union’s objections to
the first election. At the hearing the union stated that it was
prepared to go forward on only four of the original eight
objections.
After a three-day hearing, the ALJ issued a decision rec-
ommending that the Board sustain three of the union’s four
objections, set aside the first election, and reaffirm the un-
ion’s certification based upon its success in the second elec-
tion.
On review, the Board affirmed the ALJ’s decision to set
aside the results of the first election and—based upon the
union’s second election victory—reaffirmed its certification of
the union and ordered the company to bargain. Pearson
Education, et al., 336 NLRB No. 92 (2001) (the ‘‘Decision and
Order’’). The company moved to reconsider the appropriate-
ness of the bargaining unit, which the Board denied. This
petition for review followed.
II. Analysis
A. The Company’s Leaflet
The company’s central claim is that the union’s certification
was invalid because the Board abused its discretion in setting
aside the first election. Indeed, the company does not dis-
pute the outcome of the second election, which the union won.
6
Therefore, unless the company prevails in its assertion that
the Board improperly set aside the results of the first elec-
tion, the Board’s certification of the union was valid and the
company’s refusal to bargain with the union violates sections
8(a)(5) and (1) of the Act. 29 U.S.C. § 158(a)(5) and (1). See
Gannett Rochester Newspapers v. NLRB, 988 F.2d 198, 203
(D.C. Cir. 1993); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880,
881–82 (D.C. Cir. 1988).
Our review of Board decisions is deferential, and we have
specifically held that judicial review of a Board decision for a
rerun of an election is ‘‘extremely limited.’’ Timsco Inc. v.
NLRB, 819 F.2d 1173, 1176 (D.C. Cir. 1987) (citation omit-
ted). The legal principles governing the sort of conduct here
alleged are clear and well-settled: the Board will sustain an
objection to a party’s statements or conduct during an elec-
tion when the challenged actions had a reasonable tendency
to interfere with employee free choice. See NLRB v. Superi-
or Coatings, Inc., 839 F.2d 1178, 1180 (6th Cir. 1988). Fur-
ther, the Board reasonably finds that employee free choice
has been compromised when the election is tainted by con-
duct or statements that ‘‘tended to interfere substantially
with the ability of the employees to make a free and rational
choice in the election.’’ General Dynamics Corp., 250 NLRB
719, 719 (1980) (citations and internal punctuation omitted).
See also Macmillan Pub’g. Co., 194 F.3d at 168.
In sum, the issue before the Board was whether an employ-
er’s threats or statements had a reasonable tendency to
interfere with the free exercise of employee rights under the
Act. S.W. Reg’l. Joint Bd., Amalgamated Clothing Workers
v. NLRB, 441 F.2d 1027, 1031 (D.C. Cir. 1970).
In our prior review of this case, we found that the Regional
Director, whose decision the Board refused to review, did not
engage in the required reasoned decisionmaking. We specifi-
cally addressed the Regional Director’s conclusion that the
flyer violated the ‘‘principle’’ that an employer should act as
‘‘if a union were not in the picture.’’ Macmillan Pub’g. Co.
v. NLRB, 194 F.3d at 168. However, as we held, ‘‘[t]here is no
such principle governing employer communications during
7
election campaigns, and we doubt that there could be in light
of the First Amendment.’’ Id. Because of this defect, we
found that the Board’s decision reflected a classic case of lack
of reasoned decisionmaking. Id. (The ‘‘rationale was the
antithesis of reasoned decisionmaking, and as such was arbi-
trary and capricious.’’) (citing Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). We
hold that this defect has now been cured.
The Board correctly found that the company’s leaflet, circu-
lated several days before the election, threatened to withhold
a promised wage increase if the union won the election, and
set aside the results of the first election. The Board then
certified the union as the bargaining representative of the
unit employees based on the employees’ vote in favor of union
representation in the second election. If the Board’s decision
as to the first election was correct, the second follows without
challenge. It was correct.
The settled law is clear: to state that a previously-
announced wage increase will probably be lost if a union wins
constitutes employer coercion. See Flamingo Hilton–Laugh-
lin, 324 NLRB 72, 111 (1997), enforced in relevant part, 148
F.3d 1166, 1175 (D.C. Cir. 1998). Here, just days after the
company announced a ten-percent wage-increase, and just
days before the election, the company distributed a campaign
flyer that threatened that the increase, amounting to
‘‘$2,522.00 next year,’’ was ‘‘WHAT TTT YOU HAVE TO
LOSE if the Union wins the election.’’ As the Board empha-
sized, the flyer ‘‘explicitly states that the promised wage
increase will be put in jeopardy if the employees choose the
Union.’’ We agree with the Board that this constitutes
classic coercive conduct. See Pepsi–Cola Bottling Co., 315
NLRB 882, 892–93 (1994), enforced in relevant part, 96 F.3d
1439 (4th Cir. 1996). And petitioner’s arguments to the
contrary are unavailing.
The flyer states that ‘‘[w]ithout a Union, [the Company] will
be free to proceed ahead with the announced wage increases
for the [upcoming] move,’’ but ‘‘[w]ith a union, since all wages
and benefits would be subject to negotiation, no one can
8
predict what the final wage package will be. WHY TAKE
THE RISK?’’ We agree with the Board’s conclusion that the
language ‘‘leaves the clear impression that if the employees
choose the union, ‘what they may ultimately receive depends
upon what the union can induce the employer to restore.’ ’’
As the Board indicated, this is coercive conduct because it
‘‘sends the clear message that, in the absence of the Union,
the Company is willing to grant the raise, but if the Union
wins the election, the Company will pay only what the Union
can force it to pay.’’ See NLRB v. Saunders Leasing System,
Inc., 497 F.2d 453, 457 (8th Cir. 1974) (‘‘Express threats to
bargain from scratch and withdraw benefits during negotia-
tions can carry in themselves their own seeds of coercive
threats.’’); NLRB v. Aerovox Corp., 435 F.2d 1208, 1211–12
(4th Cir. 1970).
A promised raise must be awarded even if a union wins an
election. See Advo System Inc., 297 NLRB 926, 940 (1990);
Arrow Elastic Corp., 230 NLRB 110, 113, enforced, 573 F.2d
702 (1st Cir. 1978). Although the union here could legally
bargain away the raise, as the Board emphasized, ‘‘that is not
what the leaflet says.’’ We agree with the Board’s conclusion
that ‘‘[t]he message of the leaflet is that the Union would
have to bargain to get the employees the raise, and this is
simply not true.’’
Because we agree with the Board that the company’s
distribution of the leaflet was objectionable conduct ‘‘indepen-
dently sufficient to set aside the election,’’ we do not need to
reach the additional allegations of objectionable conduct by
the company.
B. Changed Circumstances
We turn briefly to petitioner’s assertion that the Board
erred in rejecting its arguments on changed circumstances.
The company contends that there are a number of changed
circumstances that render the certified unit of ‘‘warehouse
and distribution center’’ employees at the Lebanon, Indiana
facility no longer appropriate. The company asserts that
since the Regional Director originally designated the bargain-
ing unit in 1997, circumstances have changed substantially
9
and dramatically, compelling the result that the unit is no
longer appropriate. But with the exception of all but a few,
the company’s ‘‘changed circumstances’’ were brought to the
attention of this Court before, when the company argued that
these very same changes required dismissal of any election
petition until the company had completed the changes.
These changes include incorporation at the Lebanon facility
of various satellite operations, changes to work procedure,
and changes to technologies used by bargaining-unit employ-
ees. We again agree with the Board that the company’s
alleged changed circumstances are the same ones the compa-
ny asserted when it argued the prospective changed circum-
stances required dismissal of any election petition until it had
completed the changes. And apart from this recycled catalog
of superficial differences, changes in ownership and post-
election employee turnover are—on their own—each insuffi-
cient grounds to render a certification no longer appropriate.
The company rightly points out that in November 1998,
Macmillan was sold to Pearson. However, as the Board noted
in denying the company’s motion for reconsideration, mere
change of employers or of ownership is not such an unusual
circumstance as to affect the force of certification by the
Board within the normal operative period if the majority of
employees after the change of ownership were employed by
the preceding employer. The company makes no allegation
that only a minority of employees employed in the bargaining
unit after the change of ownership had been employed by the
company prior to the change.
The company’s emphasis on the employee turnover that has
occurred since this Court first reviewed and remanded the
Board’s certification of the union is similarly unavailing. In-
deed, as the Board noted in denying the company’s motion for
reconsideration, ‘‘it is well settled that post-election turnover
is an insufficient ground to set aside an election.’’ See Avis
Rent–A–Car System, Inc., 285 NLRB 1032, 1033 (1987),
enforced mem., 849 F.2d 599 (3d Cir. 1988). We have recent-
ly held that apart from bargaining orders that arise in the
Gissel context, turnover is not something that affects the
ongoing validity of Board bargaining orders. Scepter, Inc. v.
10
NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (‘‘The simple fact
of employee turnover TTT would not, without more, have been
enough to require a different decision by the Board.’’).
Lastly, although the company asserts that since the second
election the entire workforce has doubled, it is unclear wheth-
er the relevant bargaining unit has changed in size at all.
Regardless, even a doubling in the size of the bargaining unit
is not the kind of change that alters the ongoing validity of a
Board certification. We thus find no changed circumstances
that render the certified unit inappropriate.
III. Conclusion
For the reasons set forth above, we deny the petition and
uphold the Board’s decision sustaining the results of the
second election.