                                          NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

              Nos. 10-4334, 10-4465
                _____________

   NATIONAL LABOR RELATIONS BOARD,
                         Petitioner,
                  v.

            J.S. CARAMBOLA, LLP,
     d/b/a CARAMBOLA BEACH RESORT,
                                Respondent.
                  _____________

            J.S. CARAMBOLA, LLP,
     d/b/a CARAMBOLA BEACH RESORT
                             Petitioner,
                      v.

   NATIONAL LABOR RELATIONS BOARD,
                           Respondent.
             _____________

 On Application for Enforcement of an Order of the
       National Labor Relations Board &
            Cross-Petition for Review
              (NLRB 24-CA-10951)
                 _____________

    Submitted Under Third Circuit LAR 34.1(a)
               December 13, 2011

Before: SLOVITER and VANASKIE, Circuit Judges
          and STENGEL,* District Judge

             (Filed: January 12, 2012)
*Honorable Lawrence F. Stengel, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                      _____________

                               OPINION OF THE COURT
                                   _____________

STENGEL, District Judge.

        The National Labor Relations Board (the “Board”) applies to enforce, and J.S.

Carambola, LLP (“the Company”) cross-petitions this Court to review, an Order of the

Board entered on November 10, 2010, against the Company. For the reasons that follow,

we will enforce the Board‟s Order and deny the Company‟s cross-petition for review.

                                             I.

        J.S. Carambola, LLP (“the Company”) operates a hotel and resort in St. Croix,

Virgin Islands.1 On September 20, 2007, Our Virgin Islands Labor Union (“the Union”)

filed a representation petition with the Board seeking to represent a unit of the

Company‟s employees at its St. Croix facility. On October 5, the Board conducted a

secret-ballot election among the designated employees that resulted in a vote in favor of

certification.

        The Company objected to the election because it claimed the Union had prounion

supervisors campaign on behalf of the Union, solicit the signing of authorization cards,

instruct employees to attend union meetings, and threaten or coerce employees. After

reviewing the Company‟s evidence in support of its objections and holding a hearing on

the matter, the Board issued a Report and Recommendation that recommended overruling

    1
     Because we write only for the parties, we assume familiarity with the facts,
    procedural history, and record of this case and only briefly summarize here.
                                              2
the objections and certifying the union. The hearing officer found that kitchen employee

Lauritz Thompson allegedly told employees “If you don‟t vote for the Union you are a

stupid ass.” The hearing officer found that Mr. Thompson was not a statutory supervisor,

and that even if he was, he did not engage in objectionable conduct that would warrant

overturning the election.

       The Company filed exceptions to the hearing officer‟s recommendation.

Thereafter, on May 28, 2008, the two remaining Board members issued a Decision and

Certification of Representative in which it adopted the hearing officer‟s recommendations

and certified the Union. Subsequently, the Board‟s General Counsel issued a complaint

based upon the Union‟s unfair labor practice charge that the Company refused to bargain

with the Union. The Company admitted its refusal to bargain after receiving a request to

bargain from the Union, but disputed the validity of the Union‟s certification as the

employees‟ bargaining representative.

       The Board‟s General Counsel filed a motion for summary judgment, and a notice

to show cause why the General Counsel‟s motion should not be granted in light of the

Company‟s admission that it refused to bargain with the Union. The Company filed a

response and argued that summary judgment should not be granted because the Board

improperly certified the Union as the exclusive representative. On September 15, 2008,

the only two sitting members of the Board issued a Decision and Order, granting the

General Counsel‟s motion for summary judgment and finding that the Company‟s refusal

to bargain with the Union violated Section 8(a)(5) and (1) of the National Labor

Relations Act (“NLRA”). The Company filed a motion for reconsideration that was

                                             3
denied by the Board on November 7, 2008. The Company then petitioned this Court to

review the Board‟s Order, and the Board cross-applied for enforcement. (Case Nos. 08-

4729, 09-1035).

       On June 17, 2010, the United States Supreme Court issued its decision in New

Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010) ( “New Process Steel”). The Court

held that section 3(b) of the NLRA “requires that a delegee group maintain a membership

of three in order to exercise the delegated authority of the Board.” Id. at 2644 (emphasis

added). Because the Board‟s order in this case had been entered by a two-member panel,

the Board requested that we remand the case for further proceedings consistent with the

Supreme Court‟s decision. We granted their request.

       On August 6, 2010, the Board issued a Decision, Certification of Representative,

and Notice to Show Cause. In its decision, the Board explained that the prior proceeding

was a two-member decision and the Board would not give it “preclusive effect.” The

Board considered the postelection representation issues raised by the Company and again

decided to adopt the hearing officer‟s findings and recommendations for the reasons

stated in its May 28, 2008 Decision and Certification of Representative, which the Board

incorporated by reference. The Board gave the Union‟s General Counsel leave to file an

amended complaint in light of the fact that other events may have occurred during the

pendency of the litigation. The Board also gave the Company an opportunity to show

why the Board should not grant the General Counsel‟s motion for summary judgment.

       On September 3, 2010, the General Counsel issued an amended complaint alleging

that the Company had refused to recognize and bargain with the Union “[s]ince about

                                            4
June 25, 2008” and its failure to do so violated Section 8(a)(5) and (1) of the NLRA. On

September 7, 2010, the Union sent a letter to the Company and its counsel that renewed

the Union‟s request for bargaining. On September 23, 2010, the Company filed its

answer to the amended complaint and admitted that it received the Union‟s initial request

to bargain, however, the Company maintained that it was not obligated to recognize and

bargain with the Union pursuant to New Process Steel. The Company also asserted that

the General Counsel‟s amended complaint was premature because, as of the time the

Company issued its amended complaint, it had made no new demand for recognition or

bargaining. On September 30, 2010, the Company also filed an opposition to the Board‟s

motion for summary judgment asserting that the General Counsel‟s amended complaint

and motion for summary judgment were premature because the Union had not renewed

its bargaining demand prior to the filings.

       On November 10, 2010, the newly constituted Board, properly consisting of three

members, issued its Decision and Order, granting the General Counsel‟s motion for

summary judgment. The Board found that the Union requested that the Company bargain

collectively with it as the exclusive collective-bargaining representative of the unit on

June 16, 2008. The Board found that since about June 25, 2008, and continuing after the

Union‟s certification, the Company refused to bargain with the Union. Therefore, the

Board found that the Company violated Section 8(a)(5) and (1) of the NLRA.

       The Board‟s Order requires the Company to cease and desist from failing and

refusing to recognize and bargain with the Union and interfering with the rights of



                                              5
employees in the exercise of rights guaranteed by Section 7 of the NLRA. The Order

also directs the Company to recognize and bargain with the Union upon request.

                                             II.

       The Board had jurisdiction over the case pursuant to the NLRA, 29 U.S.C. §

160(a)-(c). We have jurisdiction over this appeal from the Board‟s decision pursuant to

Section 10(e) of the NLRA. 29 U.S.C. § 160(e). This Court has jurisdiction over the

case under Section 10(e) and (f) of the NLRA because the Company operates a facility in

St. Croix, United States Virgin Islands (“VI”).

       When the Board petitions for enforcement of a bargaining order, or a party

challenges a Board determination that it engaged in an unfair labor practice, the Court is

bound to accept the Board‟s factual findings “if supported by substantial evidence on the

record as a whole.” 29 U.S.C. § 160(e) & (f), see Universal Camera Corp. v. NLRB, 340

U.S. 474 (1951). Substantial evidence is more than a mere scintilla, it means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Id. at 477. The reviewing Court may set aside a Board decision when it cannot

conscientiously find the evidence supporting that decision is substantial, when viewed in

the light that the record in its entirety furnishes, including the body of evidence opposed

to the Board‟s view. Id.

                                            III.

       The Company first petitions this Court to determine whether the NLRB erred in

finding that the Company failed to bargain with the Union because the Union did not

make a request to bargain after the NLRB‟s post-New Process Steel August 6, 2010

                                             6
certification of the Union and prior to the Board‟s September 3, 2010 filing of the

Amended Complaint and motion for summary judgment. The Company contends that

the Union was not properly certified prior to August 6, 2010 under New Process Steel,

and therefore, there can be no unfair labor practice for failing to bargain with the Union

at that time. The Company challenges the Board‟s Order that “[s]ince about June 25,

2008,” the Company engaged in unfair labor practices because the Company maintains

that it had no duty to bargain at that time because the Union was improperly certified.

       Prior to August 6, 2010, the Union was not properly certified under New Process

Steel v. NLRB, 130 S.Ct. 2635 (2010). The United States Supreme Court held that the

NLRA “requires that a delegee group maintain a membership of three in order to exercise

the delegated authority of the Board.” Id. at 2644. Thus, we agree with the Company‟s

argument that there can be no unfair labor practice for failing to bargain with the Union

prior to the Board‟s certification under the statutorily authorized three-member Board on

August 6, 2010. However, the Company‟s argument that the Court should overturn the

Board‟s Order because the Union never made a bargaining demand prior to the filing of

its amended complaint is unavailing.

       The Company‟s persistence in refusing to meet and bargain with the Union

demonstrates its consistent unwillingness to accept its obligation to meet and bargain in

good faith with the Union employees‟ representatives. The Company errs in its argument

because it ignores the fact that the Union made a specific bargaining demand in the letter

dated September 7, 2010. Rather than acknowledging the letter contained in the joint

appendix of the Company‟s submissions to the Court, the Company argues that the Union

                                             7
never demanded to bargain with the Company during the period between the August 6,

2010 certification by the three-member Board and the filing of the General Counsel‟s

amended complaint on September 3, 2010. The record unequivocally demonstrates that,

on September 7, 2010, the Union‟s attorney requested that the Company meet with the

Union‟s representatives to discuss how to engage in collective bargaining negotiations.

The Company does not dispute the veracity of the demand letter, but it simply chooses to

ignore it.

       Although the Union‟s request for a renewed bargaining demand came after the

filing of the amended complaint, the request came before the Board‟s Order and before

the Company filed its response to the General Counsel‟s motion for summary judgment.

Furthermore, the General Counsel‟s memorandum in support of its motion for summary

judgment attaches and references the letter dated September 7, 2010. The Company was

aware of the Union‟s request to engage in collective bargaining negotiations before it

filed its response to the motion for summary judgment.

       Though the Union‟s renewed bargaining demand came after the issuance of the

amended complaint – but before the Board‟s Order – we find that this was harmless error

because the Company does not maintain that it began bargaining once it received the

Union‟s letter. The fact that the Company refused to bargain as of September 7, rather

than September 2, is inconsequential because, as the Board correctly explained,

“[r]egardless of the exact date on which [the Company‟s] admitted refusal to bargain

became unlawful, the remedy is the same.” Carambola Beach Resort, 356 NLRB No. 23

(November 10, 2010). The Company does not assert that it was prejudiced by the post-

                                            8
complaint bargaining demand. Therefore, we agree with the Board that the Company‟s

continuing refusal is unlawful and the timing of the bargaining was harmless error that

did not prejudice the Company in the proceedings below.

       Second, the Company petitions the Court to determine whether the NLRB erred in

its finding that the company unlawfully failed to bargain with the Union in violation of

Section 8(a)(1) and (5) of the NLRA when the Board decided to overrule the Company‟s

election objection alleging improper prounion activity by supervisors. Underlying this

claim, the company challenges an evidentiary ruling of the Hearing Officer because the

ruling prevented the Company from submitting evidence of additional pre-election

misconduct engaged in by Thompson, and that other individuals “upset the election‟s

laboratory conditions” by engaging in pre-election misconduct. Respondent‟s Brief at

13.

       These arguments are unsuccessful. The Board did not abuse its discretion by

refusing to permit the Company to subpoena union phone records of the Union President.

We agree with the Board that the records would only show that a phone call was made

between the Union and the purported supervisor and would not allow a permissible

inference that inappropriate conduct occurred. We have also reviewed the Company‟s

contention that the Hearing Officer precluded the Company‟s counsel from asking “any

questions” about the steps taken to comply with a subpoena. Respondent‟s Brief at 32.

A review of the hearing transcript, referenced in the joint appendix, shows that the

Company was permitted to ask questions concerning the subpoena, but not ask irrelevant



                                             9
questions. We find that the Hearing Officer did not abuse his discretion in making his

evidentiary ruling.

       Third, the Company contends that the NLRB erred in refusing to conclude that

Lauritz Thompson was a statutory supervisor and engaged in objectionable conduct.

Absent mitigating circumstances, solicitation of an authorization card by a supervisor can

have an inherent tendency to interfere with the employee‟s freedom to choose to sign the

card or not. Harborside Healthcare, Inc., 343 NLRB 906, 911 (2004). The Board in

Harborside issued a multidimensional test to determine whether prounion supervisory

conduct upsets the requisite laboratory conditions for a fair election. The first

Harborside prong requires the Board to determine “[w]hether the supervisor‟s prounion

conduct reasonably tended to coerce or interfere with the employees‟ exercise of free

choice in the election.” Id. at 909. In conducting that inquiry, the Board must consider

“the nature and degree of supervisory authority possessed by those who engage in the

prounion conduct; and (b) . . . the nature, extent, and context of the conduct in question.”

Id. We need not decide whether Thompson was a supervisory employee because the

Company fails to meet the second prong of the Harborside test.

       Under the second Harborside prong, the Board considers “[w]hether the conduct

interfered with freedom of choice to the extent that it materially affected the outcome of

the election.” Id. In determining that factor, the Board should consider “(a) the margin

of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c)

the timing of the conduct; (d) the extent to which the conduct became known; and (e) the

lingering effect of the conduct.” Id. Here, the Company claimed that Lauritz Thompson,

                                             10
a kitchen supervisor, told employees: “If you don‟t vote for the Union, you are a stupid

ass.” We agree with the Board‟s determination that Thompson‟s statement was not

objectionable because it could not have reasonably interfered with employee free choice

in the election. A strong opinion in support of, or against, a union, even an offensive one,

does not by itself constitute coercive conduct that warrants overturning an election. See

e.g., Werthan Packaging, Inc., 345 NLRB 343, 343-44 (2005) (finding that supervisor‟s

statement to union stating that it was in her and “her family‟s best interest to vote „no,‟”

was not coercive).

       We agree with the Board that Thompson‟s statement is not a threatening statement

of physical harm or job loss that warrants overturning an election. Furthermore, neither

of the two people who allegedly heard the statement heard it directly from Thompson.

The hearing officer found that Thompson “testified in a candid and honest manner,” and

“consistently,” “even though he was called to testify twice under subpoena by both

parties.” Furthermore, the hearing officer found that his testimony was corroborated by

several witnesses whom he deemed credible. The Company has not shown a basis to

reverse these credibility findings. We find that the Board‟s factual findings are supported

by substantial evidence and the Company has not met its burden.

                                             IV.

       For the reasons set forth above, we will enforce the Board‟s November 10, 2010

Order and deny the cross-petition for review.




                                             11
