                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1434



NATIONAL LABOR RELATIONS BOARD,

                                                         Petitioner,

           versus


STANDARD REGISTER COMPANY,

                                                         Respondent,

            and


GRAPHIC COMMUNICATIONS INTERNATIONAL UNION,
LOCAL 582-M,

                                                         Intervenor.



On Application for Enforcement of an Order of the National Labor
Relations Board. (5-CA-32798)


Argued:   February 1, 2007                    Decided:   May 2, 2007


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Order enforced by unpublished per curiam opinion.


ARGUED: Arnold Edwin Perl, FORD & HARRISON, L.L.P., Memphis,
Tennessee, for Respondent. Jeffrey James Barham, NATIONAL LABOR
RELATIONS BOARD, Office of the General Counsel, Washington, D.C.,
for the Board. Daniel B. Smith, O’DONNELL, SCHWARTZ & ANDERSON,
P.C., Washington, D.C., for Intervenor.       ON BRIEF: C. Mark
Kingseed, Mary L. Wiseman, COOLIDGE WALL CO., L.P.A., Dayton, Ohio,
for Respondent. Ronald Meisburg, General Counsel, John E. Higgins,
Jr., Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Julie Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Office of the General Counsel, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     The National Labor Relations Board has applied for enforcement

of its order requiring Standard Register Company to bargain with

the Graphic Communications Conference, International Brotherhood of

Teamsters, Local 582-M, CLC (the “Union”).            Standard Register

contends that it should not be required to bargain with the Union

because the certification election in which the Union narrowly

prevailed was invalid.     For the following reasons, we agree with

the Board’s decision to certify the election and we grant the

Board’s application for enforcement of its order.



                                   I.

     On May 2, 2005, the Union filed a petition with the NLRB

requesting that the Board hold a representation election for the

production    and   maintenance   employees   of   Standard   Register’s

Salisbury, Maryland print shop.     The Union won the election, held

on June 10, 2005, by a vote of 59 to 57.              Standard Register

thereafter filed objections to the election, contending that the

Union “unlawfully interfered with the rights of the employees of

Standard Register to exercise their right to choose whether or not

to be represented by a labor organization.”        (J.A. at 111.)1   More

specifically, Standard Register alleged that a pro-Union employee,



     1
      Citations in this opinion to “(J.A. at __.)” refer to the
contents of the Joint Appendix filed by the parties in this appeal.

                                    3
Walter Scott, engaged in racial and national origin harassment of

Viet Ly, an employee of Vietnamese origin, to intimidate Ly into

supporting the Union.       Standard Register also alleged that pro-

Union    employee   Harry   Thornton       made   economic   threats   against

employee Sandy Adkins, telling her that if she did not sign a Union

authorization card she would have to pay $100 if the Union won the

election.

     On July 19, 2005, an administrative law judge (ALJ) held a

hearing on Standard Register’s objections.             Ly testified that, on

the day of the election, Scott became angry when Ly refused to

reveal how he planned to vote.         Playing off a nettlesome comment

that Scott had previously made to Ly, Scott told Ly, who had served

in the South Vietnamese army, that he was “act[ing] like a VC,”

which stands for Viet Cong, the guerrilla forces that fought

against the United States and South Vietnamese government.              (J.A.

at 73.)     Another employee, who observed but did not hear Scott

speaking to Ly, testified that Ly appeared “extremely upset” after

the encounter and asked, “Why Walt talk so crazy?”             (J.A. at 75.)

     Scott also testified and admitted to confronting Ly on the day

of the election about a rumor that Ly was no longer supporting the

Union.    According to Scott, he asked Ly “if he was wussing out.”2

(J.A. at 84.)   Scott then told Ly that he was “nothing but a wuss”



     2
      “Wuss” means “wimp.” Merriam-Webster’s Collegiate Dictionary
1448 (11th ed. 2004).

                                       4
and that was “why [his] country is Communist.”                   (J.A. at 84.)

Scott also testified that for many years he would “once in a while

. . . call [Ly] ‘VC,’ just to get him going.”               (J.A. at 87.)

     With regard to the allegations of economic threats, Sandy

Adkins testified that three or four weeks before the election Harry

Thornton, a pro-Union employee, told her that “if [she] didn’t go

to a [Union] meeting to get a[n authorization] card and sign it,

[she would] have to pay a $100 fine.”             (J.A. at 63.)     At a later

date,    Thornton   offered   to   get       Adkins   an   authorization    card.

Thornton, however, never gave Adkins an authorization card, and she

never observed him with an authorization card.                 In fact, Adkins

never signed an authorization card.

     Patrick O’Hare, the local president of the Union, testified

that although the Union had a plant committee of employees to

assist in furthering the Union’s message, Walter Scott and Harry

Thornton were not on the committee. According to O’Hare, the Union

told employees at a meeting that the Union would waive initiation

fees and had also sent a leaflet to all employees informing them

that they would never have to pay initiation fees or fines to the

Union.       Henry Rumph, a professional organizer for the Union,

testified that Scott and Thornton were not leaders of the pro-Union

employees. Rumph also testified that he did not give authorization

cards to Thornton.




                                         5
     Considering this evidence, the ALJ denied Standard Register’s

objections    to     the    election.      Regarding       the    comments   made   by

Thornton to Adkins, the ALJ concluded “that Thornton did not engage

in conduct that could be attributed to the Union, and that his

statements to Adkins did not constitute objectionable conduct.”

(J.A.   at   163.)         Moreover,    the   ALJ   concluded      that   Thornton’s

statements to Adkins about the initiation fees were cured by the

Union’s pronouncements at meetings that the Union would waive

initiation fees and the flyer mailed to employees “guarantee[ing]”

that they would not have to pay fees.               (J.A. at 163.)

     The ALJ also concluded that Scott’s inflammatory remarks did

not require setting aside the election.                    The ALJ concluded that

Scott, although a union supporter, “had no other special ties to

the Union to give him actual or apparent authority to speak on the

Union’s behalf.” (J.A. at 165-66.) The ALJ observed that “Scott’s

remarks were isolated . . . and did not attribute any racially

related views or conduct to either the Employer or the Union.”

(J.A. at 166.)        The ALJ found it “unlikely” that Scott’s remarks

impacted     Ly’s    vote    and   also   found     that    the   remarks    did    not

“obfuscate the true campaign issues for Ly or any other voter.”

(J.A. at 166.)

     The     Board    affirmed     the    ALJ’s     findings      and   conclusions,

although with slight modifications.               Because the Board agreed with

the ALJ that “Thornton, who made the allegedly objectionable


                                          6
statement [about the initiation fees], was not a special agent of

the Union,” the Board found “it unnecessary to rely on the [ALJ’s]

alternative     finding   that       the     Union      cured     any    otherwise

objectionable    statements     by   Thornton.”          (J.A.    at    212.)      In

reference to Scott’s remarks to Ly, the Board found it unnecessary

to rely on the distinction drawn by the ALJ between improper racial

appeals made by a Union or Employer and improper appeals made by a

third-party, because “even when analyzed under the stricter party

standard . . . , employee Walter Scott’s isolated remark to

coworker Viet Ly would be insufficient to warrant a new election.”

(J.A. at 212.)

     In order to obtain court review of the Union’s certification,

Standard Register refused to bargain with the Union.                    See NLRB v.

Ky.-Tenn.   Clay   Co.,   295    F.3d      436,   441   n.2     (4th    Cir.    2002)

(“[B]ecause an employer cannot obtain direct review of a Board’s

certification, a refusal to bargain is the proper path to judicial

review of the Board’s election decision.”).              Thereafter, the Union

filed an unfair labor practice charge with the Board.                    The Board

granted the NLRB General Counsel’s motion for summary judgment and

ordered Standard Register to bargain with the Union.                    Pursuant to

29 U.S.C.A. § 160(e) (West 1998), the Board petitioned this court

for enforcement of its order.




                                        7
                                         II.

       “The results of a NLRB-supervised representative election are

presumptively valid, and we must uphold findings and conclusions of

the Board so long as the decision is reasonable and based upon

substantial evidence in the record considered as a whole.”                   Ky.-

Tenn.   Clay   Co.,   295    F.3d   at    441     (internal   quotation    marks,

citations, and alterations omitted).

       The Board strives to conduct representative elections “in

‘laboratory     conditions,’     free      from    behavior     that   improperly

influences the outcome,” id., but “in reality these conditions are

often less-than-perfect . . . [because] [a]n election by its nature

is a heated affair,” NLRB v. Herbert Halperin Distrib. Corp., 826

F.2d 287, 290 (4th Cir. 1987). “Coercive conduct is never condoned

during the election process, but the Board will not set aside an

election unless an atmosphere of fear and coercion rendered free

choice impossible.”        Id.

       “In   determining    whether      improper    behavior    has   materially

influenced the outcome of an election, the source of the behavior

is an important consideration.”               Ky.-Tenn. Clay Co., 295 F.3d at

441.    Because “third parties are not subject to the deterrent of

having an election set aside, and third party statements do not

have the institutional force of statements made by the employer or

the union,” Herbert Halperin, 826 F.2d at 290, “[l]ess weight is




                                          8
accorded the comments and conduct of third parties than to those of

the employer or union,” id.

      There are, therefore, two standards for evaluating improper

conduct in the course of a representative election.                       If the

improper conduct was committed by a party to the election, i.e.,

the employer or the union, there must be specific evidence “that

improprieties occurred . . . [and] that they materially affected

the election results.”        Id.   If, however, the improper conduct was

committed by a third party, the election will be set aside “only if

the   election   was   held    in   a   general   atmosphere     of   confusion,

violence, and threats of violence, such as might reasonably be

expected to generate anxiety and fear of reprisal, to render

impossible   a   rational     uncoerced       expression    of   choice   as   to

bargaining   representation.”            Id.    (internal    quotation     marks

omitted).

      We evaluate appeals to racial sentiments in representative

elections using the standard the Board established in Sewell Mfg.

Co., 138 N.L.R.B. 66, 70 (1962).             In that case, the Board stated

“that ‘a deliberate, sustained appeal to racial prejudice’ could

create conditions that ‘ma[ke] impossible a reasoned choice of a

bargaining representative.’” Case Farms of N.C., Inc. v. NLRB, 128

F.3d 841, 845 (4th Cir. 1997).               Thus, a new election would be

required if “[t]he [racial] remarks . . . suggest an atmosphere

inflamed by racial tension . . . or represent a deliberate attempt


                                         9
by the union to divert the employees from legitimate issues by

insinuating an irrelevant appeal to race.”    Herbert Halperin, 826

F.2d at 293.

                                 1.

     While we do not condone Scott’s behavior, his mean slur

against Ly does not warrant invalidating the election.3 “[A]ppeals

to race or ethnicity    must be ‘inflammatory’ in order to violate

the Sewell standard.”   Case Farms, 128 F.3d at 845.   “[A]ppeals to

the racial or ethnic prejudices of the workers themselves, often in

the form of slurs or insults” against the employer or employer’s

management, have been held to be inflammatory, as have “[a]ttempts

to portray an employer as bigoted.”    Id. at 846.   Scott’s remarks

fall in neither category.    Scott did not, for example, refer to

Standard Register as “Viet Cong” to prod Ly toward voting for the

Union.   Cf. M & M Supermarkets, Inc., v. NLRB, 818 F.2d 1567, 1569,

1573 (11th Cir. 1987) (concluding that an employee’s comments that

“[u]s blacks were out in the cotton field while they, the damned



     3
      We reject Standard Register’s contention that the Board erred
by analyzing Scott’s remarks according to the standard of conduct
that applies to parties to the election. Simply put, the Board was
giving Standard Register the benefit of the doubt in determining
which standard applies. If a new election is not required when
Scott’s remarks are analyzed under the standard governing parties
to the election, a new election most assuredly will not be required
when the remarks are analyzed under the more lenient standard that
applies to third party conduct.      We expect better behavior by
parties to the election, and we will be more inclined to require a
new election when the parties misbehave than when third parties
misbehave.

                                 10
Jews, took their money from the poor hardworking people . . .

inflamed racial and religious tensions against the Jewish owners of

the company and destroyed the laboratory conditions necessary for

a free and open election”).                Neither did Scott portray Standard

Register as bigoted against people of Vietnamese origin.                               Cf. KI

(USA) Corp. v. NLRB, 35 F.3d 256, 257 & n.1 (6th Cir. 1994)

(setting    aside       a    representation          election    at   a   Japanese-owned

company in which a union flier reproduced comments of a Japanese

businessman calling American workers “lazy, uneducated . . . [and]

half-witted” and implying that the businessman’s comments reflected

the views of the company’s management).

       Elections        often       stir   up        strong     feelings,        and    union

representation elections are no different.                        Given the frequently

heated nature of elections, it is foreseeable that individuals

supporting one side may ignore civility and make offensive or

hateful comments against an individual supporting the opposing

side.   See Herbert Halperin, 826 F.d at 292 (“[W]e think that it is

unrealistic to expect every election dialogue to be completely

sanitized.”).          While the use of offensive language is not to be

condoned, we will not require a new election unless the language

amounts to “an inflammatory appeal to racial or ethnic sentiment.”

Case    Farms,    128       F.3d    at   845.        Scott’s     remark   was     certainly

insulting,       but    it    did    not    rise      to   the    level     of    being    an




                                                11
inflammatory appeal to ethnic sentiment.           We therefore agree with

the Board that Scott’s remark does not warrant a new election.

                                     2.

     Standard Register also contends that the election results

should be invalidated because of Harry Thornton’s statements to

Sandy Adkins that she would have to pay $100 if she did not sign a

union authorization card.      In NLRB v. Savair Mfg. Co., 414 U.S. 270

(1973), the Supreme Court held that a union could not condition a

waiver of the union initiation fee on an employee signing a union

authorization card because such conduct “allows the union to buy

endorsements and paint a false portrait of employee support during

its election campaign.”       Id. at 277.

      For the Union to have violated Savair and a new election to

be required, however, Thornton’s remarks must be attributable to

the Union.   Standard Register contends that Thornton’s remarks are

attributable to the Union because he was a special agent of the

Union for the purpose of soliciting authorization cards, making the

Union responsible for his statements.

     The Board has stated that “[w]hen a union makes authorization

cards available to employees with the understanding that they will

solicit   other   employees    to   sign   them,   it   thereby   vests   the

solicitors with actual authority to obtain signed cards on its

behalf.” Davlan Eng’g, 283 NLRB 803, 804 (1987). Accordingly, the

Board deems “employees who solicit authorization cards . . .


                                     12
special agents of the union for the limited purpose of assessing

the impact of statements about union fee waivers or other purported

union policies that they make in the course of soliciting.”          Id.;

see also NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th

Cir. 1976) (concluding that under principles of agency law the

union   was   responsible   for   the   misdeeds   of   employees    that

volunteered to, among other things, solicit other employees to sign

authorization cards).

     Standard Register acknowledges that “there is no evidence that

the Union specifically gave authorization cards to Mr. Thornton or

directed him to solicit authorization cards from fellow employees.”

(Appellant’s Br. at 27.)    Nevertheless, Standard Register contends

that the Union should be held responsible for Thornton’s comments

because the Union gave authorization cards to certain employees

without specifically instructing those employees not to involve

other employees like Thornton.

     Substantial evidence supports the Board’s conclusion that

Thornton’s comments are not attributable to the Union and that the

Union therefore did not run afoul of Savair.       According to Adkins,

Thornton told her that “if [she] didn’t go to a meeting to get a[n

authorization] card and sign it, [she would] have to pay a $100

fine, or $100 to get it plus a fine, possibly.”      (J.A. at 63.)    But

it was not until a later date that Thornton offered to get Adkins

an authorization card. And despite Thornton’s offer, Adkins stated


                                   13
that she never saw Thornton with an authorization card.                           These

facts   provided   sufficient       evidence      for    the   ALJ    to   find   that

“Thornton merely announced a vague policy to Adkins at a time that

he   did   not   ask   her    to   sign    a   card”     and   that    because     his

“pronouncement was not made in the act of soliciting Adkins’

signature, . . . he never achieved special agent status.”                   (J.A. at

163.)

      Furthermore, Thornton’s statements to Adkins do not require a

new election because Adkins never signed an authorization card.

The Court in Savair had two main concerns: (1) unions would “buy”

endorsements through fee waivers and then use those endorsements as

a “campaign tool . . . to convince other employees to vote for the

union, if only because many employees respect their coworkers’

views on the unionization issue”; and (2) an employee who endorsed

the union by signing an authorization card “would feel obliged to

carry through on their stated intention to support the union” by

voting for the union in the election.                   414 U.S. 277-78.          Those

concerns are not implicated here.              Because Adkins never signed an

authorization card, her endorsement was not purchased, and there

was no false portrait painted that she supported the union.                        Nor

would she have felt obliged to vote for the Union.                    See Dyna-Fab,

Corp., 270 N.L.R.B. 394 (1984) (“In the case where . . . [a] waiver

of   initiation    fees      did   not   result    in    the   execution     of    any

authorization cards or membership applications, no endorsements


                                          14
were purchased and no false portrait of employee support could have

been painted.   Nor would any employees have felt morally impelled

to vote for the [union] based on a benefit extended by the [u]nion

in connection with signing a card or joining.”).      We therefore

agree with the Board that Thornton’s comments to Adkins do not

require a new election.



                               III.

     Because Scott’s epithet against Ly and Thornton’s comments to

Adkins on fee waivers are not misconduct requiring a new election,

we conclude that substantial evidence supports the Board’s decision

to certify the Union as the collective bargaining representative.

We therefore grant the Board’s application for enforcement of its

order.

                                                    ORDER ENFORCED




                                15
