               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0574n.06
                             Filed: July 7, 2005

                                          No. 04-1910

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


NATIONAL LABOR RELATIONS               )
BOARD,                                 )
                                       )
      Petitioner,                      )
                                       )
and                                    )                ON PETITION FOR
                                       )                ENFORCEMENT OF AN
INTERNATIONAL CHEMICAL                 )                ORDER OF THE NATIONAL
WORKERS UNION COUNCIL,                 )                LABOR RELATIONS BOARD
                                       )
      Intervenor,                      )
                                       )                        OPINION
v.                                     )
                                       )
APL LOGISTICS, INC.,                   )
                                       )
      Respondent.                      )
_______________________________________)


Before: MOORE and COOK, Circuit Judges, and GWIN,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. This case involves a challenge to the validity

of a union election. The National Labor Relations Board (the “Board”) petitions for enforcement

of its order requiring Respondent APL Logistics, Inc. (“APL”) to cease and desist from refusing to




       *
        The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
bargain with Intervenor/Charging Party International Chemical Workers Union Council of the

United Food and Commercial Workers (the “Union”). We ENFORCE the Board’s order.1

                                         I. BACKGROUND

        A number of facts are not in dispute. On July 3, 2003, the Union filed a petition to represent

warehouse employees at APL’s facility in Shepherdsville, Kentucky. The Union and APL agreed

to hold a union election on August 14, 2003, to take place in two separate time slots: the first from

6:30 a.m. to 8:00 a.m., and the second from 3:00 p.m. to 4:00 p.m. As the Board agent arrived late,

the election did not actually begin until 7:10 a.m, forty minutes later than scheduled. All sixty-seven

eligible employees voted. The Union won the election by a single vote, with thirty-four votes cast

for the Union and thirty-three votes cast against the Union.

        APL filed seven objections to the conduct of the election. The Board’s Acting Regional

Director ordered that an evidentiary hearing be conducted on APL’s objection involving alleged

threats against APL employees, but recommended that all other objections be overruled. The

hearing was conducted on September 23, 2003. Following the hearing, the hearing officer

recommended that APL’s objection involving alleged threats also be overruled. On January 7, 2004,

the Board adopted the hearing officer’s recommendation that the objection involving alleged threats

be overruled, and the Acting Regional Director’s recommendation that all other objections be



        1
         After proof briefs were filed, Respondent APL Logistics, Inc. (“APL”) filed a motion to
strike certain portions of the brief filed by Intervenor/Charging Party International Chemical
Workers Union Council of the United Food and Commercial Workers (the “Union”). Insofar as the
motion requests that the Union’s statement of facts be struck for failing to include sufficient citations
to the record, the motion is DENIED. Insofar as the motion requests that references to documents
attached to the Union’s motion to re-open the hearing be struck from the record, the motion is
DENIED AS MOOT, as we have not found it necessary to consider those documents and are not
remanding the case for a new hearing.

                                                   2
overruled. The Board certified the Union as the “exclusive collective-bargaining representative”

of the relevant employees.      Joint Appendix (“J.A.”) at 769 (Decision and Certification of

Representative). APL then refused to bargain with the Union, and the Union brought a charge with

the Board on February 24, 2004, and an amended charge on March 17, 2004. On May 24, 2004, the

Board found that APL “has engaged in unfair labor practices affecting commerce” and ordered APL

“to cease and desist [in refusing to bargain with the Union], to bargain on request with the Union,

and, if an understanding is reached, to embody the understanding in a signed agreement.” J.A. at

888 (May 24, 2004 NLRB Decision and Order). The Board later applied to our court for

enforcement of its May 24, 2004 order.

                                           II. ANALYSIS

A. Jurisdiction

         The Board had jurisdiction over the Union’s refusal-to-bargain charge pursuant to 29 U.S.C.

§ 160(a). We have jurisdiction over the Board’s application for enforcement pursuant to 29 U.S.C.

§ 160(e).

B. Application for Enforcement

         APL argues that the Board’s order should not be enforced because allegedly the Board

abused its discretion in four ways: (1) in failing to conclude that the opening of the polls forty

minutes late invalidated the election; (2) even if the Board could not conclude that the opening of

the polls forty minutes late invalidated the election, in failing to hold an evidentiary hearing on this

issue; (3) in failing to consider the cumulative effect of all of APL’s objections; and (4) in failing

to conclude that the Union improperly threatened APL employees to coerce them to vote for the

Union.


                                                   3
       We review the Board’s findings of fact, and its application of law to fact, for substantial

evidence on the record as a whole. 29 U.S.C. § 160(e); Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d

837, 845 (6th Cir. 2003); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-91 (1951)

(setting out substantial-evidence standard). Under this deferential standard of review, we conclude

that APL’s arguments lack merit.

       1. The Late Opening of the Polls

       APL’s primary argument is that the election must be set aside based on the late opening of

the polls. We disagree. Late opening of the polls is not sufficient to set aside an election. Midwest

Canvas Corp., 326 NLRB 58, 58 (1998). Nonetheless, if one of three additional factors are present,

the Board may judge it appropriate to set aside an election where the polls did not open as

scheduled: “(1) the votes of those possibly excluded could have been determinative; (2) the record

also showed accompanying circumstances that suggested that the vote may have been affected by

the Board agent’s late opening or early closing of the polls; or (3) it was impossible to determine

whether such irregularity affected the outcome of the election.” Id. (quotations and footnotes

omitted).

       As no eligible voter was excluded, APL essentially concedes that the first Midwest Canvas

factor is not relevant. As to the second factor, APL relies on NLRB v. Superior of Missouri, Inc.,

233 F.3d 547 (8th Cir. 2000), to argue that the vote in this case may have been affected by the late

opening of the polls. In Superior of Missouri, there was evidence suggesting substantial employee

anger at the company as a result of a postponed election, as well as rumors that the company had

bribed the Board agent not to show up. By contrast, in the present case no evidence suggested

employee anger or suspicion as a result of the Board agent’s late arrival. The fact that third-shift


                                                 4
employees were forced to vote ten minutes after their shifts had expired is insignificant. There is

no evidence in the record that these employees were either specifically aware that they would not

be paid for this time, or angry that they would not be compensated for the ten minutes in question.

       APL’s remaining arguments, citing Pea Ridge Iron Ore Co., 335 NLRB 161 (2001); Nyack

Hospital, 238 NLRB 257 (1978); B&B Better Baked Foods, Inc., 208 NLRB 493 (1974); Kerona

Plastics Extrusion Co., 196 NLRB 1120 (1972), are best analyzed as relying on some combination

of the second and third Midwest Canvas factors. However, these precedents do not carry the weight

APL would like them to bear. Although these decisions might be sufficient to support a Board

finding in APL’s favor, they are insufficient to permit us to reverse the Board’s decision against

APL. Some do have language arguably supporting APL’s point, see, e.g., Pea Ridge, 335 NLRB

at 161; Nyack Hospital, 238 NLRB at 260; B&B Better Baked Foods, 208 NLRB at 493; Kerona

Plastics, 196 NLRB at 1120, but each is also clearly distinguishable.

       In Pea Ridge, B&B Better Baked Foods, and Nyack Hospital, a sufficient number of voters

were potentially disenfranchised to permit invalidation of the election under the first Midwest

Canvas factor. See Pea Ridge, 335 NLRB at 161; Nyack Hospital, 238 NLRB at 260; B&B Better

Baked Foods, 208 NLRB at 493. APL does correctly argue that in Nyack Hospital, the Board

required a new election in the unit of office clerical employees (one of three employee units at issue

in the case), despite the fact that the employees possibly precluded from voting were not sufficient

in number to determine the results of that election. See Nyack Hospital, 238 NLRB at 260 n.22.

However, as this decision could have resulted from the Board’s desire to take the same action with

respect to all three units of hospital employees, the Board’s decision not to invalidate the present

election under Nyack Hospital survives substantial-evidence review. Similarly, Kerona Plastics


                                                  5
provides APL with some support, as it clearly appears to be an invalidation under what is now the

third Midwest Canvas factor. Nonetheless, Kerona Plastics can also be distinguished, as Kerona

Plastics involved an early closing rather than a late opening of the elections, under circumstances

that may have, as the employer argued, given “rise to rumors that the Board agent favored the

Employer . . . [and] affected votes cast in the afternoon session.” Kerona Plastics, 196 NLRB at

1120. In light of these precedents, the Board’s decision not to set aside the election based on the late

opening of the polls survives substantial-evidence review.2

       2. Alleged Improper Union Threats Against APL Employees

       APL contends that the Board erred in declining to overturn the election on grounds of

improper Union threats against APL employees. However, the Board’s decision not to set aside the

election on this ground rested primarily on credibility determinations made by its hearing officer.

See J.A. at 769 n. 3 (noting that two of the three participating Board members relied, in adopting the

hearing officer’s conclusion, solely on the hearing officer’s finding that the “none of the alleged

objectionable conduct occurred,” rather than the hearing officer’s alternative conclusion that even




       2
         APL also argues that Petitioner National Labor Relations Board (the “Board”) abused its
discretion in declining to grant an evidentiary hearing on the election’s delayed start. See, e.g.,
Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 119 (6th Cir. 1992). However, the only evidence APL
put forward on this issue was that, due to the late opening of the elections, “[e]verything and
everybody (the Company, the Union and the employees) was very confused about the disruption
over the election and the uncertainty whether the election would be conducted.” Joint Appendix
(“J.A.”) at 35 (Gillson Affidavit). As the Acting Regional Director accepted this statement as true
in making his recommendation to the Board, APL has not established any issue of material fact.
Accordingly, the Board did not abuse its discretion in declining to schedule an evidentiary hearing.

                                                   6
if the conduct did occur, it would not be objectionable).3 Therefore, our review of the Board’s

decision is highly deferential. See Mt. Clemens, 328 F.3d at 844.4

       APL argues that there was not substantial evidence on the record as a whole for the hearing

officer’s findings that three specific threats were not made: (1) the alleged threat by Jeannine Belt

(“Belt”) to have Randolph Scott (“Mr. Scott”) fired; (2) the alleged threat by Michelle Gehm

(“Gehm”) against Randall Akridge (“Akridge”); (3) the alleged threats by Belt against Kimberly

Esterday (“Esterday”). However, APL does not seriously argue that there was no evidence to

support the hearing officer’s findings. Rather, APL argues that it was “simply contrary to good

sense,” Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984), for the

hearing officer to credit Gehm and Belt rather than Mr. Scott, Rebecca Scott (“Mrs. Scott”),

Akridge, and Esterday.

       APL simply does not present sufficient reasons to allow us to overturn the hearing officer’s

findings on substantial-evidence review. In regard to the alleged threat by Belt against Mr. Scott,

Gehm stated that she did not remember hearing Belt make the threat, and Belt specifically denied



       3
        The hearing officer set out his credibility determinations in significant detail. See J.A. at
544-48 (October 14, 2003 Report of Hearing Officer Eric A. Taylor).
       4
         APL relies heavily on one case where we did overturn a credibility determination by an
Administrative Law Judge (“ALJ”), Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288 (6th
Cir. 1984). However, the facts of this case were highly unusual. The ALJ had credited the
testimony of an employee who conceded making a false statement under oath in his earlier affidavit
“due to his not wanting to admit what he had told [another employee] to the NLRB investigator” and
expected to become shop steward if the union won the election, despite the contrary testimony of
five other witnesses. Id. at 1290-91. Moreover, the court found no basis in the record for many of
the reasons the ALJ relied on in discrediting those five witnesses. Id. at 1292. Finding that the
ALJ’s credibility determinations were “simply contrary to good sense,” the court overturned the
Board’s decision to accept the ALJ’s determinations. Id. at 1293. There is no evidence in the record
suggesting that the present case involves a similar situation.

                                                 7
having made it. Alleged inconsistencies between Belt’s and Gehm’s testimony regarding where

Gehm was standing during the visit, where Mr. Scott was standing during the visit, whether Belt

made any statement as Belt and Gehm were leaving, and whether Mrs. Scott was standing outside

or not are insufficient to require the hearing officer to discredit either Belt’s or Gehm’s testimony.

Moreover, Mr. Scott’s attendance problems (putting him in serious danger of being fired under the

company’s points system) cast doubt on his testimony. Together with the hearing officer’s

observation of the demeanor of the various witnesses, there was clearly substantial evidence for the

hearing officer’s finding that Belt did not threaten Mr. Scott.

       As to the alleged threat by Gehm against Akridge, Gehm testified that she called simply

because Akridge had asked her to remind him to come in and vote. She also stated that although she

said, “If you don’t get your butt in here and vote, I’m going to have to hurt you,” she followed this

with “I love you” and “was laughing all the way through the [message].” J.A. at 243 (Gehm Test.).

Gehm also testified that Akridge was “like [an] older brother to [her],” and that they laughed and

joked around regularly. J.A. at 243 (Gehm Test.). Together with the hearing officer’s observation

of the demeanor of the various witnesses, there was clearly substantial evidence for the hearing

officer’s finding that whatever Gehm said could not reasonably have been interpreted as a threat

against Akridge.

       In regard to the alleged threat by Belt against Esterday, the Union presented documentary

evidence that Belt was traveling on a specific date that Esterday insisted Belt had visited her home.

Together with the hearing officer’s observation of the demeanor of the various witnesses, there was

clearly substantial evidence for the hearing officer’s decision to believe Belt’s assertion that she did

not threaten Esterday, rather than Esterday’s claim to the contrary.


                                                   8
       3. Cumulative Error

       Finally, APL’s cumulative-error argument is without merit. Other than the conceded late

opening of the polls, the only alleged misconduct that the Board found to have taken place was the

placement of a sticker stating “Vote No! I enjoy working for Communist scum,” on the rear window

of an employee’s truck. J.A. at 42 (Sept. 15, 2003 Report of NLRB Acting Regional Director Earl

L. Ledford). No evidence was introduced suggesting that the Union or its agent placed the sticker

on the truck, that the Union was aware the sticker was placed on the truck, or that the sticker was

discussed or seen by other employees. The Board adopted the Acting Regional Director’s finding

that this apparent third-party conduct did not require that the election be invalidated. The

combination of this conduct with the late opening of the polls should not require a different result.

                                       III. CONCLUSION

       We ENFORCE the Board’s order.




                                                 9
