                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           April 8, 2005
                          FOR THE FIFTH CIRCUIT
                         ______________________            Charles R. Fulbruge III
                                                                   Clerk
                               No. 04-60416
                         ______________________

                       LAMAR COMPANY, LLC d/b/a
                   LAMAR ADVERTISING OF JANESVILLE,

                                         Petitioner-Cross-Respondent,
                                versus

                  THE NATIONAL LABOR RELATIONS BOARD,

                                        Respondent-Cross-Petitioner.
         ____________________________________________________

                     Petition for Review of an Order
                  of the National Labor Relations Board
                              (30-CA-16706)
         _____________________________________________________



Before SMITH, DENNIS, and PRADO Circuit Judges.
PER CURIAM:*

     This case is before the court pursuant to a petition for

review of an order of the National Labor Relations Board entered on

April 30, 2004 directing the petitioner, Lamar Company LLC, d/b/a/

Lamar Advertising of Janesville, to enter into negotiations with



     *
      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this opinion should not be published and is not precedent except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.

                                   1
International Union of Painters and Allied Trades, District Council

No. 7, AFL-CIO.1 Lamar is a Louisiana company engaged in the

business of manufacturing, erecting, marketing, and maintaining

commercial billboards throughout the United States. Lamar operates

a facility in Janesville, Wisconsin, including area offices and a

shop where billboards are painted and built.      The instant case

arises out of an election held at that facility in which a

bargaining unit of sixteen employees were given the option of

joining the Union.   The election was held on January 5, 2001 and

the Union prevailed by a vote of nine (9) to seven (7), a margin of

one vote.   Lamar filed objections to the validity of the election

results with the Board, which were overruled by a hearing officer.

In due course, the Board adopted the hearing officer’s findings and

recommendations.   Lamar refused to bargain with the Union in order

to question the propriety of the representation election.2      On

January 27, 2004, the Union filed a petition with the Board


     1
      The order also found that in failing to bargain with the
Union, Lamar engaged in unfair labor practices pursuant to
§8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §
151 et. seq.

     2
      “Representation proceedings are not subject to direct
review by this court. In order to secure judicial review of his
objections to an election, the employer must refuse to bargain
with the certified union thus committing an unfair labor practice
and causing the Board to issue an order to bargain requiring
judicial enforcement. The representation case and the unfair
labor practice case become one and the complete record is fully
reviewable.” NLRB v. Osborn Transp., Inc., 589 F.2d 1275, 1278
(5th Cir. 1979)(citations omitted).

                                 2
alleging violations of §§8(a)(1) and 8(a)(5) of the National Labor

Act. The Board issued a complaint against Lamar for its failure to

bargain, and Lamar filed an answer contesting the underlying

propriety of the representation election.            On a motion for summary

judgment, the Board issued a Decision and Order directing Lamar to

bargain with the Union. In response, Lamar filed this Petition for

Review raising seven issues.         We deny the petition for review and

grant enforcement of the Board’s decision.

Standard of Review

     This   court   will    affirm    the    Board’s    decision    “if    it   is

reasonable and supported by substantial evidence on the record

considered as a whole.” Valmont Indus. v. NLRB, 244 F.3d 454, 463

(5th Cir. 2001). “Substantial evidence is ‘such relevant evidence

that a reasonable mind would accept to support a conclusion.’”

Poly-America,   Inc.   v.    NLRB,     260    F.3d     465,   476   (5th    Cir.

2001)(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951)).    “We review questions of law de novo, but defer to the

legal conclusions of the Board if reasonably grounded in the law

and not inconsistent with the Act.” Id. (citations omitted).

Analysis

     “In challenging a representation election, the objecting party

bears the burden of adducing prima facie facts that, if proven

true, would invalidate the election.” NLRB v. McCarty Farms, Inc.,


                                       3
24 F.3d 725, 728 (5th Cir. 1994) (citing NLRB v. Klingler Elec.

Corp., 656 F.2d 76, 79 (5th Cir. 1981)). The party which objects to

the   representation    must     produce     evidence    of   misconduct    that

“interfered with the employees’ exercise of free choice to such an

extent that they materially affected the results of the election.”

Id. (citing NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th

Cir. 1969)).       Where the election results were close, allegations

of misconduct must also be closely scrutinized.               Id.   (citing NLRB

v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972)).                Keeping

this in mind, we consider each of the issues Lamar has raised in

turn.



Issue 1: Alleged Threat to Weber

      Lamar alleges that the Union Business Manager William Moyer

threatened employee Dan Weber’s employment, pension, or other

benefits when, about fifteen minutes before the polling period and

twenty-five feet away from the breakroom where the polling would

take place, Moyer told Weber that he “should think long and hard on

how he would vote because the union would be the one making his

wages.”

      We agree with the Board’s finding, that Moyer’s statement did

not   constitute    a   threat    of   job    loss,     and   was   at   worst   a

misrepresentation of the Union’s control over employees’ wages.

Courts have remarked that rank-and-file employees know that a union


                                       4
does not have such control. See NLRB v. Tio Pepe Inc., 629 F.2d

964, 971 (4th Cir. 1980); NLRB v. Sauk Valley Mfg. Co., Inc., 486

F.2d 1127, 1131 (9th Cir. 1973).        “[E]mployees must generally be

trusted to sort through election propaganda and posturing in

deciding how to vote.” Trencor v. NLRB, 110 F.3d 268, 276 (5th Cir.

(5th Cir. 1997).     Therefore, Moyer’s purported statement about

wages would not have interfered with the employee’s exercise of

free choice.     As such it is not a basis for overturning the

election.



Issue 2: Alleged Threats to Dygart

     Lamar alleges that the election was flawed because Jason

Dygart, an employee who voted for the Union, did so because of

threats made against him.    Mr. Dygart was a brushcutter on a three

man crew.   Prior to the election, Dygart’s co-workers, including

Steve Jones, told Dygart, apparently on more than one occasion,

that if he didn’t vote for the Union, “we’re going to kick your

ass.”    Mr.    Dygart’s   testimony,    however,   indicates   that    he

considered these statements normal worksite joking, “just a way of

talking” and not threats of actual bodily injury.         Lamar alleges

that the comments constitute threats which effected the outcome of

the election.    The Board decided that these co-workers were not

union agents and applied a test for third party conduct.               The

Board’s factual determination that Jones was not an agent was


                                   5
supported   by    substantial   evidence    on     the   record    as       a    whole,

particularly considering the lack of evidence that the Union ever

gave Jones any authority to act as its agent.

     The    existence    of   an   agency    relationship         is    a       factual

determination.     Poly-America,     260    F.3d    at    480.         Common       law

principles apply in determining agency status. Id. “‘Apparent

authority’ exists where the principal engages in conduct that

‘reasonably interpreted’ causes the third person to believe that

the principal consents to have the act done on his behalf by the

person purporting to act for him.” Restatement (Second) of Agency

§ 27 (1992).     The burden of proving an agency relationship falls on

the person asserting its existence, in this case, Lamar. Id.

     Lamar argues that Jones was an agent of the Union because

Jones held organization meetings in his home, distributed Union

literature to eligible employees, and was entrusted with the task

of inviting other employees to Union meetings.                    Holding union

meetings, even without the presence of union officials, has been

held to be inconclusive evidence of agency.              L & A Juice Co., 323

NLRB 965 (1997).        Here, there is not even evidence that Jones

organized or conducted these meetings.           Nor is the distribution of

union literature necessarily indicative of agency status.                       Jones’s

role in distributing the literature was merely to pick up copies of

handouts made available at meetings in response to the Union

representative’s request that “the last one out the door stick them


                                      6
in the shop” the next day.         The Sixth Circuit has held that even

members     of   an   in-plant     organizing       committee     tasked    with

distributing information and soliciting authorization cards had “so

few responsibilities and such limited authority that they could no

be mistaken for agents.” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 809

(6th Cir. 1989).

     Cablevision Systems of New York City Corp., the case Lamar

cites to support its position, is readily distinguishable because

the individuals found to be agents of the union in that case were

union members, not employees of the target company who had been

expressly    asked    by   the   union   to     organize   on   the   employer’s

premises. 312 NLRB 487 (1993).           The individuals were part of what

was known as the “Cablevision Organizing Committee” and there was

no evidence that any union official participated in the organizing

campaign, lending support for a finding that the union held out the

four individuals as its representatives.            Id. at 491.       In contrast

Jones was an employee and not a member of any organizing committee.

In addition, at Lamar, Union officials were actively engaged in

organizing activities.

     In agreeing with the Board’s finding that Jones was not an

agent of the Union, we also agree that the appropriate test is that

applied to third-party conduct.              The Board will only set aside an

election on the basis of third-party threats if the conduct is “so

aggravated as to create a general atmosphere of fear and reprisal


                                         7
rendering a free election impossible.”    Westwood Horizons Hotel,

270 NLRB 802, 803 (1984); see also Hobbs v. Hawkins, 968 F.2d 471,

476 (5th Cir. 1992).     The objecting party bears the burden of

showing that the conduct warrants setting aside the election. Cal-

West Periodicals, 330 NLRB 599, 600 (2000).      In evaluating the

conduct of a third party, the Board considers several factors

including:    (1) the nature of the threat; (2) whether the threat

encompassed the entire bargaining unit; (3) whether reports of the

threat were widely disseminated within the unit; (4) whether the

threat was ‘rejuvenated’ at or near the time of the election; (5)

whether the person making the threat was capable of carrying it

out; and (6) whether from an objective standpoint, it is likely

that the employees acted in fear of the speakers capacity to make

good on the threat.   Westwood Horizons, 270 NLRB at 803.

     Applying those factors to the instant case, as the Board did,

we find that the Board’s conclusion that the conduct of Dygart’s

co-workers fell short of a general atmosphere of fear and reprisal

is correct.   The remarks, while literally physical threats, appear

to have been in the nature of normal workplace kidding around.   The

remarks were made to only one member of the voting unit, who

apparently told no one else until after the election.       We note,

however, that these two factors should carry little weight in the

context of an election decided by only one vote.      The remarks do

not appear to have been repeated near the election.    And while the


                                 8
person or people making the remarks may have had the physical

ability    to   carry    them   out    (the       record     does   not   reflect   any

particular advantage conferred by size, inclination, or training),

it is not clear that Mr. Dygart took them seriously or subjectively

believed that his co-workers would “kick his ass.” Mr. Dygart did,

however, apparently decide to vote for the Union, and while a

reasonable reading of his testimony indicates that his mind was

changed by ordinary peer pressure and comradery and not physical

threats, there is a possibility that his vote was affected by the

remarks.    Objectively, given the context described in Mr. Dygart’s

testimony, it is unlikely that a reasonable employee in Dygart’s

position would have been frightened.3 We conclude that the Board’s

finding    that   “the    record      did       not   show   that   ‘under   all    the

circumstances, a reasonable employee in Dygart’s position would

have been put in fear by the threat,’” is reasonable and supported

by substantial evidence.



Issue 3: Alleged Threats to Voit

     Lamar alleges that the Union threatened employee Daniel Voit


     3
      See Abbott Labs. v. NLRB, 540 F.2d 662, 667 (4th Cir.
1976)(noting that in an industrial setting, language like “I’m
going to kick your ass” was common hyperbole not expected to have
coercive impact.); Leaseco, Inc., 289 NLRB 549, 552
(1988)(describing the statement “I’ll kick your ass” as “a
profane colloquialism used commonly to verbalize the speaker’s
desire to prevail over another person or group,” and that
“standing alone...it does not convey a threat of actual physical
harm.”).

                                            9
that if he did not vote for the Union he risked losing retirement

benefits due to him through his membership in another union, the

International Brotherhood of Electrical Workers, Local 890.                The

record shows that at the request of a Union official,             Leo Sokolik,

a   representative   for   Local   890    called    Voit.         During   the

conversation, Sokolik told Voit that he had heard that Voit was

planning on voting against the Union and asked why.              Voit told him

that other employees had not included him in their discussions of

the Union or asked for his opinion.           Sokolik told him that he

shouldn’t vote but that “if you do vote you should vote yes because

you’re a union member.”    There is no evidence that any mention was

made of Voit’s employment, pension, or benefits.            Voit expressly

denied that Sokolik mentioned his pension.          After the call, Voit

told others that he felt unfairly singled out, but an attempt to

draw on the sympathy of a voter’s previously indicated pro-labor

sympathy is hardly synonymous with a threat.         The Board’s finding

that Voit was not threatened with a loss of employment, pension, or

other   benefits   was   reasonable     and   supported     by    substantial

evidence.



Issue 4: Electioneering at the Polling Area

     Lamar also asserts that the election must be set aside because

the Union, through its alleged agent Jones, engaged in improper

electioneering on the day of the election.         As explained above, we



                                   10
reject Lamar’s argument that Jones was an agent of the Union.       On

the morning of the election, simultaneous with or prior to the

opening of the polls, Jones approached two of his co-workers and

showed them a note handwritten by union representative Moyer the

day before, which stated that Moyer pledged to stop negotiating on

the unit employees’ behalf if they believed negotiations were not

being conducted to their benefit.        Both men voted about fifteen

minutes after seeing the note. Lamar argues that this conduct

violated the rule found in Milchem, Inc. against electioneering in

the form of “prolonged conversations between representatives of any

party to the election and voters waiting to cast ballots....” 170

NLRB 362 (1968).   Jones’s limited circulation of the handwritten

note, without evidence of more is not reasonably characterized as

a “prolonged conversation” and as noted Jones was not an agent of

the Union.    Further, Jones’s behavior did not “disrupt[ ] the

voting procedure or destroy[ ] the atmosphere necessary to the

exercise of a free choice in the representation election.” NLRB v.

Carroll Contracting & Ready-Mix, Inc., 636 F.2d 111, 113 (5th Cir.

1981).



Issue 5: Union Expenditures

     Lamar argues that the election must be set aside because in

providing food and beverages at pre-election meetings, the Union

bestowed   excessive   gifts   upon    employees.   The   Union   spent


                                  11
approximately four hundred dollars ($400) on refreshments over

seven meetings at local bar and grills.     In addition, about three

weeks before the election the Union sponsored a dinner at “The 615

Club,” for seven employees, their significant others and the Union

Business Manager Moyer and his wife. The Union spent eight-hundred

fifteen dollars ($815) on the dinner, including a generous two-

hundred dollar tip.    Providing food and drinks at organizational

meetings is normal and the Board “will not set aside an election

simply because the union...provided free food and drink to the

employees.” Chicagoland Television News, Inc., 328 NLRB 367, 367

(1999); Kux Mfg., 890 F.2d at 810.        The provision of food and

drinks is only objectionable where the benefit is conditioned upon

the employee’s support or the expense is so exorbitant it amounts

to a bribe.   See NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 330

(5th Cir. 1991); Kux Mfg., 890 F.2d at 810.       We agree with the

Board that these expenditures were not so excessive as to amount to

bribes, nor do we find evidence that the food and drink was

conditioned on the employee’s support.



Issue 6: Meetings at a Bar and Grill or a Strip Club?

     In a related arguement, Lamar complains about the locale of

five of the Union’s pre-election organizational meetings.     These

meetings were held at a local bar and grill that shares a building

with a strip club. Lamar argues that the Union’s decision to hold


                                 12
meetings there violated Board policy prohibiting discrimination.

The evidence confirms that the meetings were confined to the bar

and grill area and that the Union paid only for food and drinks.

Although the bar and grill shares a common entrance with the strip

club, the two are physically separate and patrons may enter the

strip club only after paying a cover charge. There was no evidence

that any Union related activity drifted into the strip club.       The

Board’s conclusion that the fact that meetings were held in the

same structure as a strip club does not warrant reversal of the

election was reasonable.



Issue 7: Leather Jacket

     The last issue raised by Lamar is an alleged promise made to

one of the employees with regard to a leather jacket.     The employee

in question is Jones, again.   A few days before the election, Jones

and another employee met with Union business manager Moyer and the

Union’s international representative, B.J. Cardwell, for several

hours.   Cardwell was wearing a leather jacket with Union insignia,

available for purchase by Union members for one-hundred ninety-nine

dollars ($199). The evidence indicates that throughout the evening

Jones repeatedly admired the jacket, mentioning that he wanted one

for himself and asking how he could get one.           Both Moyer and

Caldwell refused to answer him.        Finally, after several hours of

such badgering, Jones asked, “hey if we win this can I get a coat,”



                                  13
and Moyer responded in the affirmative.         We agree with the Board

that at most this was an ambiguous exchange and not an offer of

quid pro quo.     This conclusion is particularly reasonable given

that Jones was one of the more avid union supporters among the

employees (he was involved enough in the organization efforts that

Lamar has asserted that he was a Union agent) and his vote was

probably considered certain by the Union representatives by the

date of this conversation.4         There was no suggestion that Jones

would be given the coat for free or even for a discount.               The

existence of the jackets or the possibility of obtaining them was

not mentioned beyond the very small group present for Jones’s

entreaties. The lone ambiguous conversation with a confirmed Union

supporter is not sufficient to cast suspicion on the election.



Conclusion

     We do not find cause to overturn the election for any of the

above listed reasons alone, or in combination.            The cumulative

impact of a number of insubstantial objections does not amount to

a serious challenge meriting a new election.           See NLRB v. White

Knight   Mfg.   Co.,   474   F.2d    1064,   1067-68   (5th   Cir.   1973).

Accordingly, Lamar’s petition to set aside the order of the Board

is DENIED, and the Board’s petition for enforcement is GRANTED.


     4
      It is, however, logical to assume that a jacket with Union
insignia was commonly available only to Union members and that
this is why Jones could not buy one before the election.

                                     14
