                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1171



LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC,

                                                      Petitioner,

          versus


NATIONAL LABOR RELATIONS BOARD,

                                                      Respondent,


UNITED FOOD AND COMMERCIAL WORKERS, LOCAL No.
1996,

                                                      Intervenor.



                            No. 06-1237



NATIONAL LABOR RELATIONS BOARD,

                                                      Petitioner,

          versus


LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC,

                                                      Respondent.



On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (10-RC-15475; 10-CA-
35752)
Argued:   September 19, 2006          Decided:   December 15, 2006


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.


ARGUED: Clifford H. Nelson, Jr., CONSTANGY, BROOKS & SMITH,
Atlanta, Georgia, for Laurel Baye Healthcare, LLC, of Lake Lanier.
Jewel Lynn Fox, NATIONAL LABOR RELATIONS BOARD, Office of the
General Counsel, Washington, D.C., for the Board. ON BRIEF: Leigh
E. Tyson, CONSTANGY, BROOKS & SMITH, Atlanta, Georgia, for Laurel
Baye Healthcare, LLC, of Lake Lanier. Ronald Meisburg, General
Counsel, John E. Higgins, Jr., Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Meredith Jason, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for the Board. James D. Fagan, Jr., STANFORD
FAGAN, L.L.C., Atlanta, Georgia, for Intervenor United Food and
Commercial Workers Union Local 1996.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Laurel Baye Healthcare (“Laurel Baye”) petitions this court

for review of the December 28, 2005, Decision and Order of the

National Labor Relations Board (the “Board”), directing Laurel Baye

to bargain with the United Food and Commercial Workers Union, Local

1996 (“Local 1996”) and determining that Laurel Baye violated

§ 8(a)(1) and § 8(a)(5) of the National Labor Relations Act, see 29

U.S.C.A. § 158(a)(1), (3) (West 1998), by failing to provide

information and bargain as ordered.           The Board cross petitions for

enforcement of its Decision and Order.                 We deny Laurel Baye’s

petition for review and grant the Board’s cross-petition for

enforcement.


                                       I.

       Laurel Baye operates a nursing care facility for geriatric and

disabled residents in Buford, Georgia.            On August 31, 2004, Local

1996 filed a petition to represent a proposed collective bargaining

unit, set by the Regional Director as “[a]ll full-time and part-

time    service   and    maintenance        employees,    [Certified    Nursing

Assistants    (“CNA’s”)],    restorative       aids,     activity   assistants,

medical    records      clerks,   central       supply    clerks,    and   unit

secretaries” at the facility.       J.A. 518.      The election was held on

November 26, 2004. Fifty employees were eligible to vote. Thirty-

two votes were cast for and eight votes were cast against Local

1996.    Ten eligible employees did not vote.

                                       3
     On December 3, 2004, Laurel Baye filed objections to the

election with the Board, asserting that the election was invalid

because agents and other supporters of Local 1996 had engaged in

pre-election activities that destroyed the laboratory conditions

necessary for a fair and free election.               Following an evidentiary

hearing, the ALJ issued a report and recommendation that Laurel

Baye’s objections be overruled in their entirety.                     Laurel Baye

filed exceptions to the hearing officer’s decision and, on June 27,

2005,     the    Board    issued      a    Decision     and   Certification    of

Representative, adopting the ALJ’s findings and recommendations and

certifying      Local    1996   as   the   exclusive     collective    bargaining

representative for the unit.

     In    order   to    obtain      further   review    of   the   certification

decision, Laurel Baye thereafter refused to recognize and bargain

with Local 1996, or to furnish information requested by Local 1996

in its role as bargaining representative, prompting Local 1996 to

file an unfair labor practice charge with the Board.                  The Board’s

General Counsel issued a complaint against Laurel Baye, alleging

violations of § 8(a)(5) and § 8(a)(1) of the Act.1


     1
      Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer “to refuse to bargain collectively with the
representatives of his employees.”      29 U.S.C.A. § 158(a)(5).
Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the
exercise of [their protected] rights.” 29 U.S.C.A. § 158(a)(1).
Because 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.” Rosslyn Concrete Constr.

                                           4
     In response, Laurel Baye admitted its refusal to bargain and

to furnish information, but again contested the validity of Local

1996’s certification based on its earlier objections.                 In response

to the General Counsel’s motion for summary judgment, Laurel Baye

asserted   an   additional   claim     that,      because     Local    1996    had

disaffiliated   from   the   AFL-CIO       on   July   29,   2005,     after   the

election, an evidentiary hearing should be held to explore the

continued validity of Local 1996’s certification as the employees’

bargaining representative. The Board granted the General Counsel’s

motion for summary judgment, ordering Laurel Baye to bargain with

Local 1996 and to furnish the requested information.                 Laurel Baye

then filed this petition for review, and the Board filed the cross

petition for enforcement.


                                     II.

     We begin with Laurel Baye’s challenge to the validity of the

election   based   upon   the   alleged         destruction    of     laboratory

conditions by agents and other supporters of Local 1996.                   It is

well settled that the Board is vested “with a wide degree of

discretion in establishing the procedure and safeguards necessary

to insure the fair and free choice of bargaining representatives by

employees” through an election.        NLRB v. A.J. Tower Co., 329 U.S.

324, 330 (1946); see NLRB v. Kentucky Tennessee Clay Co., 295 F.3d



Co. v. NLRB, 713 F.2d 61, 63 n.1 (4th Cir. 1983).

                                     5
436, 441 (4th Cir. 2002).     “The results of an 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.”     Kentucky Tennessee, 295 F.3d at 441

(internal quotation marks, citation, and alterations omitted).

     However, “because the employees’ right to exercise a fair and

free choice in a representation election is the mandate, elections

must be conducted in laboratory conditions, free from behavior that

improperly influences the outcome.”   Id. (internal quotation marks

and citations omitted); see also NLRB v. Georgetown Dress Corp.,

537 F.2d 1239, 1242 (4th Cir. 1976).    The employer may rebut the

presumption that the election is valid, but only if it presents

“specific evidence not only that the alleged acts of interference

occurred but also that such acts sufficiently inhibited the free

choice of employees as to affect materially the results of the

election.”   Overnite Transp. Co. v. NLRB, 294 F.3d 615, 623 (4th

Cir. 2002) (internal quotation marks omitted); see also NLRB v.

Urban Tel. Corp., 499 F.2d 239, 242 (7th Cir. 1974) (“For conduct

to warrant setting aside an election, not only must the conduct be

coercive, but it must be so related to the election as to have had

a probable effect upon the employees’ actions at the polls.”).

     In evaluating a challenge to the “laboratory conditions” of an

election, “the source of the [coercive or threatening] behavior is


                                6
an important consideration.”           Kentucky Tennessee, 295 F.3d at 441.

“[A]n election will be set aside for improper conduct by a union or

union agents when threats, acts of coercion, or other improprieties

occurred and ‘materially affected the election results.’”                 Id. at

442 (quoting NLRB v. Herbert Halperin Distr. Corp., 826 F.2d 287,

290 (4th Cir. 1987)).     But an election will be set aside for third-

party   conduct   “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).

                                        A.

     In its challenge to the election conditions, Laurel Baye

claims that two of its former employees, CNA Patricia Cunningham

and CNA Melissa Lott, were acting as union agents during the

critical pre-election time period and, in that capacity, directly

threatened three management employees and one unit employee and

generally   engaged   in        threatening    speech    in     the   workplace.

According to Laurel Baye, the actions of Lott and Cunningham,

exacerbated by three additional “threatening” incidents on the part

of other persons, destroyed the laboratory conditions to such a

degree that it interfered with the unit employees’ ability to make

a free and reasoned choice in the election.


                                         7
       We begin with the alleged conduct of Lott and Cunningham.

Approximately two weeks after Local 1996 filed its petition for

representation, Cunningham was suspended from employment pending an

investigation of insubordination, and Lott was terminated from

employment.      Between ten and thirty minutes after her termination,

Lott called Kristal Randolph in the Human Resources office and

requested her final paycheck.2           Randolph could hear Cunningham

speaking in the background.       At some point during the call, the

conversation turned to Courtney Bell, Laurel Baye’s Human Resources

Coordinator.       Randolph testified that Lott and Cunningham “made

threats to [Bell],” claiming that “they were wrongfully terminated,

. . . that they knew where [Bell’s] grandmother lived . . . [and]

mom lived, and that they would come after her,” or send someone

else “after her, too.”       J.A. 99.    In addition, Cunningham called

out to Randolph, “this is Patricia, let her know that I’m going to

get her,” J.A. 99, and “tell that bitch that I’m going to fuck her

up.”       J.A. 100.    The women also mentioned Charles James, the

Assistant Director of Nursing, and Nancy Levin, the Director of

Nursing, telling Randolph “they’re going to get them, too.”        J.A.

101.       The telephone call lasted approximately five minutes.




       2
      Randolph was a member of management until mid to late
September, when her position changed to Medical Records Clerk,
which is a unit position. Although it is unclear whether she was
a unit employee or management employee on the day of the call, she
was a unit employee at the time of the election.

                                     8
     Randolph     immediately     informed    Bell   and    other    members    of

management about the telephone call and, after an unsuccessful

attempt to file a report at the police station, Bell called the

police and her parents from a phone at the nurse’s station and

reported the threats.          Several unit employees in the area were

close enough to overhear Bell reporting the substance of the

telephone calls and were aware that a police officer came to the

facility to prepare a report of the incident.                    Cunningham was

terminated the following day. There is no evidence that Local 1996

or the upcoming election was mentioned in conjunction with this

incident.     However,    Local     1996     officials     did    point   to    the

terminations of Lott, Cunningham, and three additional employees as

examples of employer action necessitating union representation in

the Laurel Baye workforce.

     Laurel Baye also presented testimony that, prior to their

terminations,     Lott   and    Cunningham    wore   Union       insignia,     told

employees that “either you’re with us or you’re against us” when

walking in the halls, J.A. 144, and were overheard commenting, when

discussing word of an anonymous call made to a management employee,

“now things are getting started.” J.A. 229.                      There was also

testimony that Lott or Cunningham called CNA Alicia Earls, who is

related to Lott, a “bitch” and “Uncle Tom” upon discovering that

Earls, in the course of a routine breakfast pick-up, returned with

breakfast   for   supervisors     as   well   as   unit    employees.        Earls


                                       9
testified   at   the   hearing    but     was   not   questioned      about   this

incident.   Although she testified that she did not vote in the

election, she also testified that she was not working that day.

She did not testify that she refrained from voting because of this

name-calling incident.

     The threatening behavior of Lott and Cunningham, Laurel Baye

argues,   was    exacerbated     by   three     additional    incidents       which

occurred during the pre-election time period.              First, in September

2004, Robert White, an outside contractor who handled housekeeping

in the Laurel Baye facility, informed management that he received

a threatening telephone call at his home from an anonymous caller

claiming to be associated with the union.                 Apparently White had

posted a sign prohibiting solicitation of housekeeping employees

during working hours.      White did not testify at the hearing, but

Bell testified that White mentioned an anonymous caller told him

“that they didn’t know why he was getting involved, that the

situation did not involve him, . . . and that he just needed to

stay out of it.”    J.A. 293.     Alicia Earls also testified that White

told her he had received a threatening call, but provided no

details about the call.

     Second,     Brenda   Walker,     a      management    employee    in     staff

development, testified that, approximately one week before the

election, she told a group of employees that a union had not

delivered on its promises to her family members and emphasized to


                                        10
the employees the importance of being educated about the union.              A

few days later, Walker received a telephone call from an anonymous

caller who asked her, “[W]ho told you to make that speech?”             Walker

was warned that, “[I]f you know what’s good for you, you’ll mind

your own business.”        J.A. 139. Walker hung up on the caller and

reported the threat to the police.

       In the final incident, Activities Director Wendy Schrilla

testified     that   CNA    Deborah   Cuffy   reported     that     a    union

representative called her at home and eventually came to her home

around 9 p.m. on a Sunday night.            Cuffy did not testify, but

Schrilla     testified     that   Cuffy    said   she    told     the    union

representative she was not interested, and, when they persisted,

Cuffy’s husband informed Cuffy “that was enough of this.”                J.A.

243.      Cuffy resigned her employment after this incident, but

Schrilla testified that Cuffy did not provide a reason to her.

Union organizer Taylor admitted that he visited Cuffy at her home,

but there was no evidence that Taylor or anyone else engaged in

threatening or coercive behavior towards Cuffy or that Cuffy quit

her job because of union harassment.

                                      B.

       To evaluate whether an agency relationship exists between a

company employee and a union, we apply the general common law of

agency as developed by the Act.        See Kentucky Tennessee, 295 F.3d

at 442.     “‘[T]he question of whether the specific acts performed


                                      11
were actually authorized or subsequently ratified shall not be

controlling.’”       Id. (quoting Georgetown Dress, 537 F.2d at 1244).

“Rather, ‘[t]he final inquiry is always whether the amount of

association between the [u]nion and the [employee organizers] is

significant       enough    to   justify    charging    the    [u]nion     with   the

conduct.’”      Id. (quoting PPG Indus., Inc. v. NLRB, 671 F.2d 817,

822 n.8 (4th Cir. 1982)).

     In an affidavit signed October 7, 2004, Eric Taylor, Local

1996’s Organizing Director, stated that “Cunningham, Lott, and [one

additional person] were our ‘Committee’ and attended every meeting”

and that “[o]ther employees clearly saw these employees as leaders

of the [u]nion campaign.”             J.A. 375.    At the hearing, however,

Taylor recanted, denying that Lott and Cunningham were agents of

Local 1996 or leaders of the campaign, and referring to them as

simply   “key      employees     that   attended       some    meetings”    in    the

organizing effort.         J.A. 93.

     The ALJ recognized that “Taylor had previously described Lott

and Cunningham as leaders of the organizing campaign and on the

[Local 1996’s] Committee,” but found “no evidence that other

employees regarded Lott and Cunningham as the leaders of the

organizing campaign or that [Local 1996] ever held them out to

employees    as    its     agents.”     J.A.    469.     The    ALJ   additionally

concluded that the alleged threats did not justify setting aside

the election.


                                           12
     On   review,   the    Board   affirmed    the    ALJ’s    findings   and

conclusions.    With regard to the agency question, the Board also

concluded that Laurel Baye had failed to establish that Lott and

Cunningham were actual or apparent agents of Local 1996. The Board

found that neither the threats by Lott and Cunningham, nor the

anonymous threats to Brenda Walker and Robert White, rose “to the

level of objectionable conduct because the Employer failed to show

that the threats individually or cumulatively created a general

atmosphere of fear and coercion.”         J.A. 518.

     Having reviewed the record and the findings of the Board, we

find it unnecessary to consider the import of Taylor’s troublesome

and at least facially contradictory assertions regarding the status

of Lott and Cunningham, or the question of whether and under what

circumstances   Lott      and   Cunningham    crossed   over    from   being

disgruntled former employees to union agents.             Rather, we must

uphold the Board’s findings and conclusions because, even if Lott

and Cunningham could be considered agents of Local 1996 based upon

their pre-termination activities or the union’s later ratification

of their actions, the alleged coercive and threatening conduct

relied upon by Laurel Baye is woefully insufficient to prove that

“the free exchange of ideas on unionization among the employees”

was stifled “so as to materially affect the election results.”




                                     13
Kentucky Tennessee, 295 F.3d at 445 (internal quotation marks and

alteration omitted).3

     As an initial premise, we note that the vast majority of the

challenged conduct on the part of Lott and Cunningham consisted of

relatively vague threats made against management officials in a

single, five-minute telephone call placed within thirty minutes of

disciplinary action being taken against them.            No mention was made

of the union or the upcoming election at the time, and the

telephone call preceded the election by more than two months.

Although there is evidence that Bell repeated the threat in an area

where unit employees may have overheard it, there is no evidence

that Lott or Cunningham repeated the threat against management to

any unit employee or that they directed any threat to a unit

employee.     In short, the evidence reveals that the telephone call

and the threats against management officials arose out of an

entirely personal dispute between Lott and Cunningham, on the one

hand, and management officials, on the other, resulting from

adverse employment actions taken against Lott and Cunningham. And,

there    is   no   evidence   that   the    threats   impacted   the   election

results, which the union won by a four-to-one margin.




     3
      Although Laurel Baye relies upon all incidents in support of
its invalidation claim, counsel for Laurel Baye agreed at oral
argument that they cannot prevail under the third-party standard
and, therefore, must establish that Cunningham and Lott were agents
to set aside the election results.

                                       14
     The incident between Lott, Cunningham, and Earls was likewise

isolated in nature and, given Earls’ familial relationship to Lott,

could easily be viewed as more personal in nature than related to

the union.    Indeed, there is no evidence as to whether Earls

actually supported or opposed the union; rather, Cunningham           and

Lott were simply angry because Earls had brought breakfast to

unnamed supervisors.    We frankly do not construe the “with us or

without us” comments as threatening either, but even viewed in

their most damaging light, the sole evidence of comments directed

at unit employees collectively amounts to little more than name-

calling and innocuous posturing.        More importantly, there is no

evidence that Earls or any other unit employee abstained from

voting or voted differently because of these incidents.

     The additional incidents pointed to by Laurel Baye, even

considered cumulatively with the telephone call, likewise fail to

render invalidation of the election appropriate, as none rise to

the level of threatening or coercive behavior sufficient to inhibit

the electorate’s fair and free choice at the election.                The

telephone calls to Walker and White, a management employee and

outside   contractor,   respectively,   were   isolated   incidents   and

anonymously made.   There is no evidence that they were placed by

Lott or Cunningham, or any other union official.            Evidence of

dissemination of these alleged “threats” was limited, and there is

no evidence that any unit employee abstained from voting or voted


                                  15
against unionization as a result.           Similarly, although there is

evidence that Cuffy quit her job after a union official visited her

home, there is no evidence that her decision to quit was motivated

by behavior that she viewed to be threatening.

     For the foregoing reasons, we conclude that Laurel Baye failed

to rebut the presumption that the election was valid and uphold the

Board’s rejection of Laurel Baye’s challenge to the election in

this proceeding.


                                  III.

     We turn briefly to consider Laurel Baye’s claim that it may be

justified in refusing to bargain with Local 1996 because, on

August 1, 2005, after the Board certified Local 1996 as the

exclusive bargaining representative for the unit, it disaffiliated

from the AFL-CIO and joined with other local unions to form the

organization “Change to Win.” Laurel Baye contends that the Change

to Win union is a materially different labor organization from the

AFL-CIO and the Board erred in refusing to hold an evidentiary

hearing   to   explore   the   issue   of    whether   the   current   labor

organization is the same organization approved by the electorate

and certified by the Board in the underlying representation case.

     The Board ruled that a hearing was unnecessary because Local

1996's    disaffiliation   from    the      AFL-CIO,   without   more,    is

insufficient to raise a genuine issue as to the continuity of the

identity of the certified bargaining representative, see NLRB v.

                                   16
Harris-Woodson Co., 179 F.2d 720, 722-23 (4th Cir. 1950) (noting

that the employees’ choice of a local union as their bargaining

representative “was not affected by its change either of name or

affiliation”); see also NLRB v. Wayerhaeuser Co., 276 F.2d 865, 873

(7th   Cir.   1960)   (holding   that    “[a]   mere   change   of   name   or

disaffiliation with the AFL-CIO is not sufficient” to raise doubts

about the identity of a certified bargaining representative), and

because, in any event, the disaffiliation came after Laurel Baye

refused to bargain as ordered.

       On appeal, Laurel Baye has pointed to no authority in support

of its position, nor any argument beyond mere disaffiliation as the

basis for its request.       Accordingly, we find no error in the

Board’s rejection of Laurel Baye’s request.


                                   IV.

       For the foregoing reasons, we deny Laurel Baye’s petition for

review and grant the Board’s cross-application for enforcement.


                                  PETITION FOR REVIEW DENIED AND
                                  CROSS-APPLICATION FOR ENFORCEMENT
                                  GRANTED




                                    17
