                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     September 1, 2006

                        _______________________                 Charles R. Fulbruge III
                                                                        Clerk
                              No. 04-61032
                        _______________________


                    NATIONAL LABOR RELATIONS BOARD,

                                                                 Petitioner,

                                  versus

                                  VISTAR,

                                                                 Respondent.



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


Before JONES, Chief Judge, and DeMOSS and OWEN, Circuit Judges.

PER CURIAM:*

           Vistar of Dallas (“Vistar”) petitions for review of an

adverse order issued by the National Labor Relations Board (“the

Board”).     Because   substantial    evidence    supported     the    Board’s

determination that Vistar unlawfully refused to bargain with its

union, we DENY the company’s petition, and GRANT the NLRB’s cross-

application for enforcement.




     *
            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opinion should not be published and is not precedent except under the limited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.
                                 I.   Background

            In September 2003, the General Drivers, Warehousemen, and

Helpers Local Union 745 (“the Union”) filed a petition with the

NLRB seeking to represent the drivers employed at Vistar’s Dallas

facility.    Vistar subsequently agreed to conduct an election by

secret ballot at its facility to determine union representation for

only those “drivers employed by the Employer at their location

located at 5225 Investment Drive, Dallas, TX 75236.” Excluded from

participating      in     the   election       were   “[a]ll   other    employees,

including    office     clericals,     salespeople,       warehouse     employees,

engineers,   and    guards,      including      supervisors     and    managers   as

defined in the [National Labor Relations] Act.”

            The election took place on October 24, 2003, and was

extremely close, with a preliminary result of 17-14 in favor of the

Union. An additional five votes were challenged. Two votes, those

of Luke Jackson and William Malone, were challenged by the Union on

the ground that the two men were supervisors at the time of the

election    and    were    therefore    ineligible       to    vote.     The   NLRB

challenged three votes, those of Joe Vaz, Raymond Falcon, and Eric

Mattingly, on the ground that they were not drivers on the day of

the election.       Finally, Vistar objected to the election in its

entirety, on the ground that Vaz, as a supposed agent of the Union,

engaged in unlawful electioneering near the polling place.




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            A formal hearing was held on November 24, 2003, to

evaluate these challenges and objections.                      In his report and

recommendations, the hearing officer recommended that the Board

certify the Union.           Specifically, the hearing officer concluded

that three ballots, including Malone’s, should be counted.                          The

hearing    officer     also    concluded         that    two   ballots,     including

Jackson’s, should be excluded, and that Vaz’s behavior did not

warrant setting aside the election.

            Vistar filed timely exceptions to the hearing officer’s

report and recommendations.               The company challenged only the

hearing officer’s findings as to Jackson’s status at the time of

the election and Vaz’s election day behavior.                  On June 24, 2004, a

panel of    the    Board     adopted     the     hearing     officer’s     report   and

recommendations.       This decision meant that the final result in the

union election was 17-14 in favor of the Union, with two votes

unopened.   Because these two votes would not be determinative, the

Board   certified      the    Union    as       the   Vistar   drivers’     exclusive

collective bargaining representative.

            Vistar     subsequently       refused       to   engage   in   collective

bargaining with the Union.            The Board issued a complaint alleging

a   violation     of   the    National      Labor     Relations   Act,     29   U.S.C.

§§ 158(a)(1),(5).            Vistar reiterated its contention that the

certification of the Union was invalid. On September 30, 2004, the

Board declined to reexamine Vistar’s complaints, and ordered Vistar

to cease and desist from refusing to bargain with the Union.

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Cross-petitions in this court for review and enforcement of the

Board’s order followed.

                            II.    Discussion

           A Board order “requiring an employer to negotiate with a

union will be enforced if the NLRB’s decision to certify the union

is ‘reasonable and based upon substantial evidence in the record.’”

Avondale Indus. v. NLRB, 180 F.3d 633, 636 (5th Cir. 1999)(quoting

NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th Cir. 1994)).

The   certification   order’s     validity   depends   in   turn   upon   the

validity of the underlying representation election.                Avondale,

180 F.3d at 636; NLRB v. Hood Furniture Mfg. Co., 921 F.2d 325, 328

(5th Cir. 1991).      Under the substantial evidence standard, this

court may not “displace the Board’s choice between two fairly

conflicting views, even though the court would justifiably have

made a different choice had the matter been before it de novo.”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 480, 71 S. Ct. 456,

460 (1951).   With these broad standards in mind, we turn to the two

issues raised by Vistar.

      A.   Jackson’s Status

           Vistar first argues that Jackson was employed as a

“driver” at the time of the election and was eligible to vote in

the representation election under the terms of the agreement

between Vistar and the Union.       In interpreting a voter eligibility

agreement, this court looks to the parties’ intent with regard to


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the disputed employee.            Knapp-Sherill Co. v. NLRB, 488 F.2d 655,

659 (5th Cir. 1974).        Absent evidence indicating that the parties

agreed to apply a different standard to their agreement, such

disputes are resolved according to NLRB principles.                   Id.    As the

party challenging a voter’s eligibility, Vistar bears the burden of

establishing     that      the    Board’s       eligibility   determination       was

erroneous.     Id.

            Vistar and the Union agreed that only drivers were

eligible to vote in the representation election, and that “all

other” employees were ineligible.                  On October 16, 2003, Vistar

announced Jackson’s promotion to a supervisory position.                          On

October 18, Jackson worked his last day as a driver, and on

October 20, he was removed from his driving routes and received a

new   job   title    and    pay    grade.         The   election   took   place   on

October 24. Nevertheless, as Vistar notes, Jackson does not appear

to have assumed supervisory authority as the term is understood

under the National Labor Relations Act, 29 U.S.C. § 152(11), until

at least November 16.

            Jackson’s eligibility depends solely on whether he was

employed as a driver on the day of the election.                   Thus, Vistar’s

argument that Jackson was not a supervisor on October 24 is

misplaced, even if it is correct under the statute.                       The Board

sustained the Union’s challenge to Jackson’s ballot because “he was

not employed and working in the Unit” on election day, not because

Jackson had become a supervisor.                That Jackson may not have become

                                            5
a full supervisor on October 24 does not mean that he was a driver;

the Board’s holding that Jackson was not employed as a driver is

supported by substantial evidence and will not be disturbed.1

      B.    Vaz’s Conduct

            Vistar next argues that Vaz, as a union agent, unlawfully

interfered with the representation election.               Although the NLRB

aspires to enforce “laboratory conditions” on election day, this

court has recognized that this is an “unattainable goal,” and that

the court should therefore remain conscious of “the realities of

industrial life” in reviewing the validity of a representation

election.    McCarty Farms, 24 F.3d at 728 & n.2.            A representation

election    is   not   lightly    set   aside,    and   there    is   a   strong

presumption that ballots cast under NLRB safeguards represent the

true desires of employees.         Hood Furniture, 941 F.2d at 328.           We

must, however, carefully scrutinize misconduct allegations where

the election results were close.            McCarty Farms, 24 F.3d at 728.




      1
            Vistar’s argument in the alternative that Jackson was a supervisor
trainee, and had the requisite “community of interests” with rank-and-file
employees to vote, similarly misses the mark. The “community of interests” test
was developed in Curtis Indus., a Div. of Curtis Noll Corp., 218 N.L.R.B. 1447
(1975), a case that concerned whether management trainees were protected by the
National Labor Relations Act, not whether such workers were part of a particular
bargaining unit. See NLRB v. Kent Corp., 564 F.2d 186, 188 & n.3 (5th Cir.
1977)(explaining Curtis). As discussed, supra, the issue in the instant case is
whether Jackson was a driver on October 24. The record indicates that save a
single occurrence, date unknown, in which Jackson filled in for a sick driver —
a common practice for Vistar supervisors — Jackson performed no work as a driver
after October 18. Instead, he trained with supervisors before assuming his own
supervisory post on November 16. As such, the Board’s decision was entirely
consistent with the NLRB principle that an employee’s “actual status” at the time
of a representation election determines his or her eligibility to vote. Nichols
House Nursing Home, 332 N.L.R.B. 1428, 1429 (2000).

                                        6
            In its decision, the Board concluded that Vaz was not a

union agent, and therefore applied the Hood Furniture test for

misconduct by third parties, which requires a showing of misconduct

“so aggravated that a free expression of choice of representation

is impossible.”      Id. at 330.     Vaz’s conduct falls far short of this

standard.    Vistar urges this court to apply the stricter test for

misconduct by a party to a representation election, whereby an

election will be invalidated by any misconduct that had “a tendency

to influence” its outcome.           NLRB v. Gulf States Canners, Inc.,

585 F.2d 757, 759 (5th Cir. 1978).

            The record indicates that Vaz stationed himself on or

near the ramp and walkway that led to Vistar’s facility.                He spoke

to five drivers in the parking lot or on the ramp, each time making

brief,    personal    pleas    for    the   drivers’   votes     in    favor   of

recognizing   the     Union.       Additionally,   after   driver      Terrence

Shepherd had finished voting, Vaz approached Shepherd and asked him

how he had voted.        None of these conversations took place in

designated no-electioneering zones, and the ramp and parking lot

were at least forty feet from the polling area.

            The   hearing     officer   aptly   compared   Vaz    to    a   union

supporter found not to be an agent in United Builders Supply Co.,

287 N.L.R.B. 1364 (1988).          Based on this conclusion, the Board’s

application of Hood Furniture’s third-party misconduct standard was

proper.   But even assuming arguendo that Vaz was acting as a Union

agent on October 24, his conduct was not so harmful that it had a

                                        7
tendency to influence the election.              The instant case is nearly

identical to the facts of Boston Insulated Wire & Cable Sys., Inc.

v. NLRB, 703 F.2d 876 (5th Cir. 1983).            In that case, union agents

spoke to employees and handed out pamphlets as the employees walked

from the parking lot and through a set of doors on their way to the

polling place.       Applying the “tendency to influence” test, this

court denied the employer’s petition for review, finding

      (1) that the electioneering was not directed to employees
      waiting in line to vote; (2) that the electioneering did
      not occur at the polling place or in a no-electioneering
      area; (3) that the company never complained to the Board
      agent during the election; and (4) that the Board agent
      never instructed the union not to pass out the
      literature.

Id. at 882.        Three of the four of the reasons listed in Boston

Insulated apply here, and Vaz did not hand out literature to the

voters.    Further, the cases cited by Vistar are readily distin-

guishable.    In    NLRB v. Carroll Contracting & Ready-Mix, Inc., 636

F.2d 111 (5th Cir. 1981), voters were spoken to by union supporters

while they waited in line to vote; additionally, the concerns of

the employer regarding parking lot electioneering had been brought

to the attention of the Board agent before the election.2                Id. at

112-13.    Similarly, in Pepsi-Cola Bottling Co., 291 N.L.R.B. 578

(1988), the challenged conduct occurred in a no-electioneering zone


      2
            The case of Nathan Katz Realty LLC   v. NLRB, 251 F.3d 981 (D.C. Cir.
2001), which held that union conduct within      a no-electioneering zone could
substantially impair voters’ exercise of free    choice, is also distinguishable
from the instant case. In Katz, the activities   of union agents were contrary to
NLRB instructions, and had been objected to      by the employer.    Id. at 992.
Neither factor is present here.

                                      8
where there was no physical barrier between union supporters and

voters.

          Thus, regardless of his agency status, under the totality

of the circumstances, Vaz did not interfere with voters’ ability to

make a free choice in the election.   As the “final minutes before”

each Vistar driver cast his ballot remained “his own,” this court

will not invalidate the results of the representation election.

McCarty Farms, 24 F.3d at 729 (quoting Milchem, Inc., 170 N.L.R.B.

362, 362 (1968)).

                         III.   Conclusion

          The Board’s certification of the Union was reasonable and

was supported by substantial evidence.       Therefore, the Board’s

order that Vistar cease and desist from refusing to bargain with

the Union shall be ENFORCED.     Vistar’s petition for review is

DENIED, and the NLRB’s application for enforcement is GRANTED.




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