                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                    _____________________________   FILED
                                                       U.S. COURT OF APPEALS
                              No. 03-16340         ELEVENTH CIRCUIT
                     _____________________________   APRIL 18, 2005
                                                          THOMAS K. KAHN
                          NLRB No. 12-CA-23237                CLERK



NATIONAL LABOR RELATIONS BOARD,

                                                Petitioner-Cross Respondent,

     versus

STREICHER MOBILE FUELING, INC.,

                                                Respondent-Cross-Petitioner.


              _________________________________________

                Application for Enforcement of an Order of the
                       National Labor Relations Board
              _________________________________________


                             (April 18, 2005)

Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:



      Claiming election fraud, Appellant Streicher Mobile Fueling, Inc.

(“Streicher”), appeals the National Labor Relations Board’s (“NLRB” or “Board”)

order forcing it to negotiate with a newly certified union. We uphold the decision

of the NLRB.



                                BACKGROUND



      The parties do not dispute the underlying facts of this case. Streicher owns

and operates a fleet of fuel trucks in Orlando, Florida. In October 2002, Streicher

employed thirteen drivers who were eligible to vote in a labor election to

determine whether the drivers would organize as part of the Teamsters union. The

vote took place on 26 November 2002, and the employees voted seven to six for

unionization.

      Shortly before the election, the Teamsters mailed each of Streicher’s drivers

two pieces of mail in a Teamster-labeled envelope. The first document was

unmistakable union propaganda: an image of a wolf in sheep’s clothing with the

heading “Beware of Management’s Tricks.” The second was an counterfeit NLRB

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sample ballot in English and Spanish. The sample ballot did not include the

official disclaimer, and it had the “yes” box (for unionization) cleanly marked. It

also contained the NLRB’s official seal.

      Based on this mailing, Streicher challenged the election. It argued that the

union unfairly influenced the election by altering the ballot to give the impression

that the NLRB endorsed unionization. A NLRB Hearing Officer recommended

overruling Streicher’s objections on 2 April 2003. The NLRB summarily adopted

the Hearing Officer’s recommendation on 3 June 2003.

      Thereafter, Streicher refused to negotiate with the union; and the union filed

a charge against Streicher with the NLRB. Based on the union’s charge, the

NLRB General Counsel filed a complaint with the NLRB. On 31 October 2003,

the NLRB entered summary judgment against Streicher, concluding that it

engaged in unfair labor practices. Streicher appeals the NLRB’s order compelling

it to negotiate with the union.



                            STANDARD OF REVIEW



      We uphold the NLRB’s legal conclusions if they are not “arbitrary or

contrary to law,” NLRB v. Dynatron/Bondo Corp., 992 F.2d 313, 315 (11th Cir.

                                           3
1993). Accord Visiting Nurse Health Sys., Inc. v. NLRB, 108 F.3d 1358, 1360

(11th Cir. 1997) (upholding decisions that have “a reasonable basis in law”). The

Board’s findings of fact are consider conclusive if “supported by substantial

evidence on the record considered as a whole. . . . Put differently, we must decide

whether on this record it would have been possible for a reasonable jury to reach

the Board’s conclusion.” NLRB v. Dynatron/Bondo Corp., 176 F.3d 1310, 1313

(11th Cir. 1999) (citing Allentown Mack Sales & Serv., Inc. v. NLRB, 118 S. Ct.

818 (1998)). Because this case involves a union election, the NLRB is entitled to

even broader discretion; its “determinations ‘warrant special respect on review.’”

Dynatron/Bondo Corp., 992 F.2d at 315 (citations ommitted). “[N]o area is more

within the expertise of the Board” than this. Certainteed Corp. v. NLRB, 714 F.2d

1042, 1047 (11th Cir. 1983) (citations omitted). But, close elections are reviewed

more carefully than others. NLRB v. Klinger Elec. Corp., 656 F.2d 76, 85 (5th

Cir. Unit A 1981).1




  1
       Cases from the United States Court of Appeals for the Fifth Circuit that were decided before
30 September 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                                4
                                         DISCUSSION



       We must determine whether a reasonable jury could agree with the hearing

officer’s finding that Streicher’s employees would have known the ballot mailed

by the Teamsters was altered, and whether the NLRB’s subsequent decision to

uphold the election results had a reasonable basis in law. We answer both

questions affirmatively.2

       A reasonable jury could agree with the Hearing Officer’s finding that

reasonable employees would know the NLRB was neutral in the election. See

SDC Investment, Inc., 274 NLRB 556, 557 (1985) (defining dispositive inquiry in

representation cases as whether reasonable employees could believe the Board

favored an electoral outcome). The actual ballots used by the NLRB contain a

disclaimer explaining that any markings thereon are not from the Board.3 For

additional clarity, employers are required to post the the Board’s official Notice of


  2
        Streicher appeals the October NLRB decision. There, the Board did not examine the validity
of the 2002 election, deciding that “all representation issues . . . were or could have been litigated
in the prior representation proceeding.” Streicher Mobile Fueling, Inc., 340 NLRB No. 116 (2003).
But, Streicher followed the correct procedure because “[r]epresentation proceedings are not subject
to direct review by this court.” Klinger Elec. Corp., 656 F.2d at 80 n.2.
  3
       The disclaimer reads: “Warning: This is the only official notice of the election and must not
be defaced by anyone. Any markings that you see on any sample ballot or anywhere on this Notice
have been made by someone other than the NLRB. The NLRB is an Agency of the United States
Government and does not endorse any choice in the election.”

                                                 5
Election, which also contains the disclaimer,“in conspicuous places at least 3 full

working days” before election day. 29 C.F. R. § 103.20(a).4 The NLRB has said

that the disclaimer removes any “reasonable impression that the Board favors or

endorses any choice in the election.” Brookville Healthcare Ctr., 312 NLRB 594

(1993).

       Here, the Hearing Officer concluded that the disclaimer alleviated potential

confusion about the Board’s neutrality. The Hearing Officer heard testimony

about a common room where drivers regularly pick up their assignments; the

notice was posted there. Though the Hearing Officer did not cite this testimony in

his recommendation, we review the record as a whole to determine whether

substantial evidence supports the Board’s (and, therefore, the hearing officer’s)

findings. Visiting Nurse Health Sys., Inc. v. NLRB, 108 F.3d 1358, 1360 (11th

Cir. 1997).

       In this case, the Teamsters removed the disclaimers from the adulterated

ballots it mailed Streicher employees. That fact is not dispositive, Dakota

Premium Foods, 335 NLRB 228 n.2 (2001) (deciding that the disclaimer did not

have to appear on all written campaign propaganda), at least in part because the


   4
       We must presume Streicher followed the regulation, because it would be estopped from
objecting to a failure to post the Notice in this appeal. 29 C.F. R. § 103.20(c).

                                                 6
disclaimer was still published in the workplace. And, it appears that NLRB

precedent reasonably permits elections to go forward if employees had some

access to the disclaimer. Id. Accordingly, the Hearing Officer’s finding was

supported by evidence; and Streicher has not shown that the NLRB abused its

discretion by adopting that finding.

      We acknowledge that the Board issued a different ruling shortly after it

ruled against Streicher here. See Sofitel San Francisco Bay, 343 N.L.R.B. No. 82

(2004). The Sofitel decision does not mean that the Board abused its discretion at

the time it made its decision here. The decision of the Board is, therefore,

      AFFIRMED.




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