                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                   Nos. 15-2565, 15-2877
                                      ____________

                          NEWARK PORTFOLIO JV, LLC,
                                                 Petitioner/Cross Respondent

                                            v.

                     NATIONAL LABOR RELATIONS BOARD,
                                             Respondent/Cross Petitioner
                               ____________

                     On Petition for Review and Cross-Application
                          for Enforcement of an Order of the
                            National Labor Relations Board
                              (NLRB No. 22-CA-100534)
                                     ____________

                              Argued July 12, 2016
       Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges.

                               (Filed: September 1, 2016)

John C. Romeo       [Argued]
Gibbons
One Logan Square
130 North 18th Street, Suite 210
Philadelphia, PA 19103

James J. La Rocca
Gibbons
One Gateway Center
Newark, New Jersey 07102
             Counsel for Newark Portfolio JV, LLC
Linda Dreeben
Julie B. Broido
Valerie L. Collins [Argued]
National Labor Relations Board
1015 Half Street NE
Washington, DC 20570
              Counsel for National Labor Relations Board
                                    ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.

       In these consolidated appeals, Newark Portfolio JV, LLC seeks review of an order

of the National Labor Relations Board (NLRB or Board) certifying Local 55 of the

Laborers’ International Union of North America as the collective bargaining

representative for a unit of Newark Portfolio’s employees, and the Board seeks

enforcement of an order compelling Newark Portfolio to bargain with the Union. Because

the Board’s decision to certify the Union was not supported by substantial evidence, we

will grant Newark Portfolio’s Petition for Review and deny the Board’s Cross-

Application for Enforcement.




                                              I




       * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                             2
       Newark Portfolio employs live-in superintendents, porters, and other maintenance

workers at two buildings it owns at 585 and 595 Elizabeth Avenue in Newark, New

Jersey. Pursuant to a stipulated election agreement, Newark Portfolio agreed to conduct

an election for the Union to represent a bargaining unit comprising ten of its employees.

The representation election was scheduled to occur on the morning of July 27, 2012, in

the first-floor laundry room of 595 Elizabeth.

       Despite the relatively small size of the bargaining unit, in the hour before and

during the election, dozens of Union members gathered in front of the buildings,

including on the steps leading to the front entrance of 595 Elizabeth. 1 They wore bright

orange t-shirts printed with “Local 55” in black lettering and held placards, chanted, and

spoke to employees as they entered the building to vote. App. 28–31, 571. Three

employees—Gregory Philbert, John Hodge, and Alfredo Bonilla—later testified that the

Union members had urged them to vote for Local 55 by telling them to “do the right

thing” and promising “a lot of benefits” if the Union won. App. 28. Philbert, who lives at

585 Elizabeth, also testified that three tenants had called him to complain that Union

members were blocking the sidewalk. In addition, Philbert stated that his wife delayed

taking their daughter to school that day because she felt “intimidated.” App. 28, 77–89.


       1
        The parties disagree on the exact number of Union members that were present
during the election. Newark Portfolio claims there were about 40; the Board and the Un-
ion point to a lower number between 20 and 30; the NLRB Hearing Officer that adjudi-
cated the employer’s objections to the election summarized the relevant testimony as be-
tween 15 and 40.

                                             3
Union members did not enter 595 Elizabeth and no campaigning took place in the

laundry room where voting took place.

       Just before the voting started, the Board Agent conducting the election held a

conference in the laundry room of 595 Elizabeth that included Newark Portfolio’s

attorney and the Union’s business manager, Hector Fuentes. Also present were Union

organizers Martinique Whaley and Manuel Escobar, as well as the Union’s election

observer (Roberto Jiminez) and Newark Portfolio’s superintendent for 595 Elizabeth.

       The parties dispute what happened at the pre-election conference. Newark

Portfolio contends that in response to a complaint from its attorney, the Board Agent

instructed the electioneering in front of 595 Elizabeth to cease. For its part, the Board

insists that the Agent issued, at most, a “general[]” no-electioneering directive. App. 13.

Regardless, the Union continued its campaign even as voting began and Philbert testified

that as he walked from 585 Elizabeth to 595 Elizabeth to cast his vote, an unknown

person in a bright orange t-shirt shouted at him: “These Jews don’t care about you, they

only care about the money.” App. 38; see also App. 96–100. It was widely known that

the owners of Newark Portfolio are Jewish.

                                              II

       The Union won the election by a single vote, with six in favor and four opposed.

Newark Portfolio filed objections to the election, specifically pointing to the anti-Semitic

slur and electioneering in front of 595 Elizabeth as sufficient reasons for setting aside the

election. Two days of hearings were conducted before an NLRB Hearing Officer in
                                              4
August 2012. Philbert, Hodge, and Bonilla testified for the employer. Jiminez and two

other Newark Portfolio employees—Gelmy Villagran and José Rosa—testified on behalf

of the Union, along with Fuentes, Escobar, and Whaley.

       The Hearing Officer issued a report overruling Newark Portfolio’s objections and

recommending the Union’s certification. The Hearing Officer credited the testimony of

Philbert, Hodge, Bonilla, Jiminez, Villagran, and Rosa, finding that each “individual[’s]

testimony was internally consistent and plausible, and was substantially corroborated by

the other credited witnesses.” App. 33–34. With respect to Fuentes, Escobar, and Whaley,

however, the Hearing Officer did not credit their testimony “where it contradicts or

conflicts with the testimony of the credited witnesses or where their own testimony is

inconsistent.” Id. Based on this evidence, the Hearing Officer found that the anti-Semitic

remark was insufficient to set aside the election under the Board’s rule addressing

appeals to racial and religious prejudice articulated in Sewell Manufacturing, Inc., 138

N.L.R.B. 66 (1962). The Hearing Officer also overruled Newark Portfolio’s objection to

the Union’s electioneering, finding both that the per se rule against speaking to

employees in the polling area under Milchem, Inc., 170 N.L.R.B. 362 (1968), was

inapplicable and that the Union’s campaign did not violate the general standard for

electioneering under Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118 (1982).

After considering Newark Portfolio’s exceptions, the Board upheld the Hearing Officer’s

determinations and certified the Union.



                                             5
                                             III2

       Under Boston Insulated Wire, the Board assesses electioneering conduct under a

multifactor, totality-of-the-circumstances test.

       The Board considers not only whether the conduct occurred within or near
       the polling place, but also the extent and nature of the alleged
       electioneering, and whether it is conducted by a party to the election or by
       employees. The Board has also relied on whether the electioneering is
       conducted within a designated “no electioneering” area or contrary to the
       instructions of the Board agent.

259 N.L.R.B. at 1118–19.

       In considering the last factor of Boston Insulated Wire, the Board found as a

factual matter that “the Board [A]gent stated generally that electioneering would not be


       2 A certification order is not a “final” order subject to judicial review under the
National Labor Relations Act, and can be reviewed only after the employer refuses to
bargain with the union and triggers an unfair labor practice proceeding. See Am. Fed’n of
Labor v. NLRB, 308 U.S. 401, 411 (1940); see also 29 U.S.C. § 160(f). The Board had
jurisdiction to adjudicate Newark Portfolio’s refusal to bargain under § 10(a) of the
NLRA, and we have jurisdiction to review both the employer’s Petition for Review and
the Board’s Cross-Application for Enforcement under §§ 10(e) and (f), 29 U.S.C. §§
160(a), (e), and (f). Because the Board’s unfair labor practice proceeding implicates an
underlying representation election, we have jurisdiction to consider the merits of both
agency actions. See 29 U.S.C. § 159(d); see also Trimm Assocs., Inc. v. NLRB, 351 F.3d
99, 102 (3d Cir. 2003). We also note that the Board reissued its certification order in light
of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), and that Newark Portfolio has not
challenged the validity of the recertification.

        We review the Board’s findings of fact for substantial evidence based on the entire
record before the agency. See 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951). Thus “we must decide whether on [the] record [as a whole] it
would have been possible for a reasonable jury to reach the Board’s conclusion.” Allen-
town Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366–67 (1998). The Hearing Of-
ficer’s credibility determinations are given substantial deference. NLRB v. St. George
Warehouse, Inc., 645 F.3d 666, 671–72 (3d Cir. 2011).

                                              6
permitted, but the [A]gent did not designate a specific ‘no electioneering’ area.” App. 13

(emphasis added).3 Accordingly, the Board held that this factor favored certifying the

Union. We agree with Newark Portfolio that the Board erred in this regard.

       “When the Board purports to be engaged in simple factfinding, unconstrained by

substantive presumptions or evidentiary rules of exclusion, it is not free to prescribe what

inferences from the evidence it will accept and reject, but must draw all those inferences

that the evidence fairly demands.” Allentown Mack, 522 U.S. at 378. Nor may the Board

“disregard[]” evidence contrary to its factual conclusions. Id. at 369. Here, not only is

there no evidence to support the Board’s finding that the Agent did not designate a no-

electioneering zone, the record points to the contrary.

       Escobar’s testimony strongly supports the inference that the Board Agent did, in

fact, designate the front of 595 Elizabeth as a no-electioneering zone during the pre-

election conference. A Union organizer who testified on behalf of Local 55, Escobar

agreed with the statement that the Board Agent told “both sides, the union and the

employer, that there should be no electioneering taking place out in front of the building.”

App. 479 (emphasis added).




       3
         Unlike a specific no-electioneering directive, a general directive against
electioneering applies only to the customarily proscribed area, i.e., “at or near the polls.”
See Boston Insulated Wire, 259 N.L.R.B. at 1118–19 (distinguishing conduct “within or
near the polling place” from that “within a designated ‘no electioneering’ area”); Bally’s
Park Place, Inc., 265 N.L.R.B. 703 (1982) (noting the “customary” area).

                                              7
       The Board argues that it properly disregarded Escobar’s testimony because the

Hearing Officer discredited him as “unreliable.” NLRB Br. 20–21; App. 34. But the

Hearing Officer did not discredit Escobar’s testimony in its entirety; it was discredited

only “where it contradicts or conflicts with the testimony of the credited witnesses or

where [his] testimony [was] inconsistent.” App. 34. And because Escobar’s admission

was neither internally inconsistent nor conflicted with the testimony of a credited

witness—it was among the evidence that the Board should have considered. Id. Along

with Jiminez—who testified that the Board Agent said “something like” that “there

should be no electioneering,” App. 249–50—Escobar’s testimony is the only probative

evidence as to whether the Board Agent designated the front of 595 Elizabeth as a no-

electioneering zone during the pre-election conference.4

       Accordingly, the Board’s conclusion that its Agent “did not designate a specific

‘no-electioneering’ area” did not evaluate Escobar’s testimony properly, App. 13, and its

       4 At oral argument, the Board clarified its position by pointing to other parts of
Jiminez’s testimony in which he appeared to deny that the Board Agent issued any kind
of no-electioneering instruction. See App. 231–34. This would place Escobar’s testimony
in conflict with that of Jiminez, a credited witness, thereby rendering Escobar’s testimony
outside the evidence before the Board. However, Jiminez spoke through a translator, and
it is apparent that he did not understand several of counsel’s questions. In the remaining
portion of Jiminez’s testimony that the Board has directed us to, it is ambiguous whether
Jiminez was referring to the front of 595 Elizabeth or the laundry room when he testified
that the Agent “just said the . . . union can’t be there, and the lawyer can’t be there.” App.
233–34. However, counsel later revisited this area of inquiry, and Jiminez clearly testi-
fied that the agent said that “there should be no electioneering.” App. 249–50. As a factu-
al matter, this “general” no-electioneering instruction is consistent with the specific in-
struction that the parties were not to campaign in a particular area. For that reason, we
reject the Board’s argument that Jiminez’s testimony conflicts with Escobar’s admission.

                                              8
finding that she only “stated generally that that electioneering would not be permitted,”

id., was contrary to the inference “fairly demand[ed] by the weight of the evidence,”

Allentown Mack, 522 U.S. at 378. The Board’s analysis of Boston Insulated Wire was

therefore not supported by substantial evidence. And because the Board did not consider

the anti-Semitic remark overheard by Philbert in the context of the Union’s violation of

the Agent’s prohibition on electioneering outside of 595 Elizabeth, we cannot know

whether that remark could be found harmless under either Boston Insulated Wire or

Sewell. We therefore cannot conclude that the Board’s certification order was supported

by substantial evidence on the record as a whole.5

                                       *      *      *

       For the stated reasons, we will grant Newark Portfolio’s Petition for Review and

deny the Board’s Cross-Application for Enforcement.

       5 Judge Smith would affirm the Board’s conclusion that “[t]he evidence indicates
that before opening the polls . . . the agent did not designate a specific ‘no electioneering’
area” under the substantial evidence standard. App. 44. See Allentown Mack Sales and
Serv., Inc. v. N.L.R.B., 522 U.S. 359, 366-67 (1998) (describing the standard as “whether
on this record it would have been possible for a reasonable jury to reach the Board’s con-
clusion”). However, he would also remand, because he believes that the Board improper-
ly placed the burden on Newark Portfolio to show that the anti-Semitic statement was
harmless. Compare App. 45 (“[T]he Employer adduced no evidence suggesting that any
religious tensions existed in the workplace or that the [Union] sought to engender conflict
through a broader inflammatory campaign theme.”) with N.L.R.B. v. Silverman’s Men’s
Wear, Inc., 656 F.2d 53, 60 (3d Cir. 1981) (holding that a hearing was necessary in order
to show, among other things, whether the “totality of circumstances surrounding [the ra-
cially inflammatory remark] evinced an atmosphere in which those remarks may reason-
ably be expected to have had a significant impact on the employees’ free exercise of
choice” and that the “burden of proving that the utterance was harmless” was on the party
responsible for the racial slur).

                                              9
