 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 23, 2012                 Decided June 22, 2012

                        No. 11-1199

           NATIONAL LABOR RELATIONS BOARD,
                     PETITIONER

                             v.

         DOWNTOWN BID SERVICES CORPORATION,
                   RESPONDENT

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE
            WORKERS, DISTRICT LODGE 98,
                    INTERVENOR


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


     Bernard P. Jeweler argued the cause and filed the briefs
for respondent.

     Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for petitioner. With her on
the brief were John H. Ferguson, Associate General Counsel,
Linda Dreeben, Deputy Associate General Counsel, and Julie
B. Broido, Supervisory Attorney. Renee D. McKinney,
Attorney, entered an appearance.
                              2
     Stefan P. Sutich was on the brief for intervenor
International Association of Machinists & Aerospace
Workers, District Lodge 98 in support of petitioner.

   Before: SENTELLE, Chief Judge, HENDERSON and
BROWN, Circuit Judges.

    Opinion for the Court filed by Circuit Judge BROWN.

    Opinion concurring in part and dissenting in part filed by
Chief Judge SENTELLE.

    Concurring opinion filed by Circuit Judge HENDERSON.

     BROWN, Circuit Judge: The National Labor Relations
Board seeks enforcement of an order finding Downtown BID,
a non-profit business improvement corporation, committed an
unfair labor practice (ULP) when it refused to bargain with
the International Association of Machinists and Aerospace
Workers (the Union) following an employee election.
Downtown BID (the Company) contends agents or supporters
of the Union unlawfully threatened and harassed employees
and otherwise engaged in electioneering that interfered with
the fairness and outcome of the election. The Board
overruled these objections and certified the Union. Because
the Board’s findings and conclusions are supported by
substantial evidence and consistent with Board precedent, we
grant the Board’s application.

                              I

     Around March 2009, in response to an initial overture by
employee Jennings Brown, the Union began an organizing
campaign to represent the Company’s approximately 117
safety and maintenance workers (SAMs). Union officials,
                              3
including Roosevelt Littlejohn, the Union’s business
representative and the main organizer of the Downtown BID
campaign, solicited union authorization cards from the SAMs.
Littlejohn also held six open informational meetings where he
presided alone, discussing the Union and answering
questions. Starting in June, Brown and several of his co-
workers volunteered to support the Union, joined an
organizing committee, and began to solicit authorization cards
as well. Still, all of the Union’s literature and all of the
authorization cards were drafted by Littlejohn and had only
Littlejohn’s name and contact information on them.

     Brown and some of his Union-supporting co-workers
soon took the campaign in an aggressive and deeply troubling
direction. In separate incidents, a few of these pro-Union
employees threatened several of their co-workers, telling them
they would be fired if they did not support the Union. Some
of those employees were so disturbed by these threats that
they contacted the Company’s administrative department; the
Company reassured them that neither Brown nor the Union
could get them fired and that no one would be fired based on
the outcome of the election. Some pro-Union SAMs also
harassed co-workers with profanity and racial epithets, though
one of those harassed also testified such language was
unfortunately not uncommon in the workplace. Finally, a
poster in an employee locker room was anonymously defaced
with profane and racist language. According to Littlejohn,
neither he nor the Union had any knowledge that employees
were campaigning for the Union in an aggressive or harassing
manner. He also had no knowledge of the threats of job-loss,
and emphasized—credibly, in the ALJ’s estimation—that
such conduct was not authorized or approved by the Union.

     When voting ultimately took place that July, Brown was
selected by the Union as its election observer—simply
                              4
because, as Littlejohn testified, “[w]e couldn’t get anybody
else.” ALJ Hearing Tr. at 248. Brown greeted voters and
approached one as if to embrace him or her, but he was
admonished not to by the Board’s election observer and
returned to his seat. One other potential voter was reported to
have turned and left once he saw Brown in the room, and
another employee also testified she received a “severe look”
from Brown, though she voted freely anyway. Id. at 154,
158–60. Brown also took a phone call during a break in the
voting and identified the Company’s observer by name to the
person with whom he was speaking. When the voting ended,
56 ballots had been cast in favor of the Union and 51 against
the Union. There was one challenged ballot that was not
resolved.

     The Company timely filed objections to the election,
arguing that the narrow victory was the result of threats,
harassment, and unlawful electioneering by Brown and his
cohorts. An ALJ heard two days of testimony in March 2010,
after which he recommended that the Board overrule all of the
Company’s objections and certify the Union. The Board
adopted the ALJ’s findings and certified the Union on
December 23. Downtown BID Servs. Corp., Case 5-RC-
16330 (N.L.R.B. Dec. 23, 2010) (“Election Decision”).

     The Union requested bargaining and the Company
refused. This move by the Company sets up judicial review
of an election certification that is otherwise insulated from
direct review. Boire v. Greyhound Corp., 376 U.S. 473, 476–
77 (1964) (“Board orders in certification proceedings . . . are
not directly reviewable in the courts . . . [but are instead]
normally reviewable only where the dispute concerning the
correctness of the certification eventuates in a finding by the
Board that an unfair labor practice has been committed . . .
.”); Hard Rock Holdings, LLC v. NLRB, 672 F.3d 1117, 1120
                                  5
(D.C. Cir. 2012). In due course, a complaint was issued
against the Company for its refusal to bargain, 29 U.S.C. §
158(a)(5), and the Board, rejecting the Company’s claims that
the Union had been wrongfully certified, found on April 4,
2011 that the Company committed the ULP as charged and
ordered the Company to recognize and bargain with the
Union.1 Downtown BID Servs. Corp., 356 N.L.R.B. No. 130
(Apr. 4, 2011) (“ULP Decision”).

     The Board now seeks enforcement of that April 4 Order.
Because the Company does not deny its refusal to bargain, the
validity of the Order turns on the validity of the representation
election. The scope of our review of the Board’s rulings
regarding the election is “extremely limited,” Amalgamated
Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559,
1564 (D.C. Cir. 1984), and we must respect the Board’s
“broad discretion” to assess representation elections, AOTOP,
LLC v. NLRB, 331 F.3d 100, 103 (D.C. Cir. 2003). If the
Board’s decision to certify a union is consistent with its
precedent and supported by substantial evidence in the record,
we may not disturb it. 29 U.S.C. § 160(e); see Pirlott v.
NLRB, 522 F.3d 423, 432 (D.C. Cir. 2008).

                                  II

    The Board applies a different standard when it reviews
the misconduct of a union agent acting within the scope of his
agency relationship than when it reviews either misconduct

1
  “A violation of Section 8(a)(5) [of the National Labor Relations
Act] is also a violation of Section 8(a)(1), which makes it an unfair
labor practice for an employer to ‘interfere with, restrain, or coerce
employees in the exercise’ of their statutory right to bargain
collectively through representatives of their own choosing.” S.
Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1356 n.6 (D.C.
Cir. 2008).
                               6
that occurred outside any such relationship or misconduct of a
third party. The first question to address is thus whether
Brown or any of his aggressive colleagues were agents of the
Union and, if so, what the scope of that agency relationship
was.

     Agency status is determined by common law agency
principles. Mar-Jam Supply Co., 337 N.L.R.B. 337, 337
(2001). As at common law, an agency relationship exists
when a person has either actual authority or apparent
authority to act on behalf of a union. Id. The agency
relationship, established in either manner, “must be
established with regard to the specific conduct that is alleged
to be unlawful.” Cornell Forge Co., 339 N.L.R.B. 733, 733
(2003).

     The Company claims Brown and his colleagues had
actual authority to act for the Union because they solicited
authorization cards on the Union’s behalf. Under the Board’s
decision in Davlan Engineering, 283 N.L.R.B. 803, 804
(1987), “employees who solicit authorization cards should be
deemed 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.” The Company is therefore correct that Brown and
his colleagues were agents of the Union, but the purpose and
scope of their agency relationship is limited to their
statements regarding “purported union policies” made in the
course of soliciting. Id. The name-calling, profanity, and
other generally reprehensible behavior of which they are
guilty were unrelated to the subject matter of the authorization
cards. The Board was therefore justified in concluding those
were outside the scope of the agency relationship.
                                7
     The Board also concluded that the job-loss threats made
by Brown and others did not reasonably represent “purported
union policies” and were therefore outside the scope of the
agency relationship as well.2 Although the Company has the
exclusive authority to fire people, the record shows a few
employees were not so sanguine. The Company claims some
SAMs may not have known this basic fact because they are
“not schooled in union matters,” Resp’t Br. 35, but an
inference is not evidence. Moreover, those SAMs who took
the job-loss threats seriously apparently asked for and
received assurances from the Company that no one would be
fired whatever the outcome of the election.

     While we in no way condone the tactics in which Brown
and his colleagues engaged, we cannot say the Board
exceeded its discretion or acted inconsistently with its
precedents by placing the responsibility of evaluating the
plausibility of statements and threats on employees and by
concluding, based on the circumstances in this case, that the
impulsive statements of pro-Union employees could not
reasonably be equated with Union policy. The Board’s
conclusion is bolstered by the fact that nothing in the record
suggests either the Union or Brown and his colleagues had
special leverage with the Company that would permit them to
effectuate these threats. Cf. Janler Plastic Mold Corp., 186
N.L.R.B. 540, 540 (1970) (rejecting an employer’s objection
that union threats of job-loss tainted an election because “no
evidence was offered to show that any employee had reason
to believe that the [e]mployer favored [the union] [or] . . . was
disposed to discharge any employees for voting against [the

2
  The Board also noted that the record does not show that Brown
and his colleagues made the job-loss threats “when they were
soliciting authorization cards.” Election Decision, at 2. We do not
rely on this finding.
                                 8
union]”); compare Serv. Emp. Int’l Union Local 87, 322
N.L.R.B. 402, 407 (1996) (finding a union to be responsible
under Davlan for job-loss threats made by a supervisor
soliciting signatures for the union when that supervisor “had
the authority to hire, assign, and responsibly direct
employees”).3 The Board’s characterization of the job-loss
threats recounted here is thus consistent with prior precedents,
see HCF, Inc., 321 N.L.R.B. 1320, 1320 (1996); Holland
Indus., Inc., 284 N.L.R.B. 739, 739 (1987), so we cannot say
the Board was unjustified in finding they fell outside the
scope of the Davlan agency relationship.

     Because the Board’s conclusion relating to the job-loss
threats is “reasonable, consistent with its prior decisions,
supported by substantial evidence, and consistent with
common law determinations on similar facts,” we cannot
disturb it. Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265
(D.C. Cir. 1998). Though Brown and his colleagues were
agents of the Union under Davlan when they solicited
authorization cards, that agency relationship was limited to
statements made about Union policies and therefore did not
cover “the specific conduct that is alleged to be unlawful.”
Cornell Forge Co., 339 N.L.R.B. at 733.

     The Company raises two additional agency-related
arguments regarding only Brown. First, the Company argues
Brown had apparent authority to act for the Union. Apparent
authority “exists where the principal engages in conduct
that[,] reasonably interpreted, causes the third person to
3
  In Service Employees International Union Local 87, the Board
adopted the ALJ’s decision, but because no party had filed
substantive exceptions to that decision, 322 N.L.R.B. at 402 n.1, the
Board’s adoption is not considered precedential, Stanford Hosp. &
Clinics v. NLRB, 325 F.3d 334, 345 (D.C. Cir. 2003). We refer to it
only to highlight the difference from the context of this case.
                                9
believe that the principal consents to have the act done on his
behalf by the person purporting to act for him.” Overnite
Transp. Co., 140 F.3d at 266 (emphasis added). “[W]hile it
may be the case that several employees . . . believe [a co-
worker] acted on behalf of the union, the union cannot be held
responsible for [his] conduct [when] it did nothing to confer
apparent authority on him.” Id. Though it is quite clear that
many SAMs thought Brown represented the Union—and that
Brown may have fancied himself a Union representative—
there was sufficient evidence in the record for the ALJ and the
Board to conclude that the Union never engaged in any
conduct that would reasonably create that impression. The
Union never held out Brown as its representative; by contrast,
the Union held out Littlejohn, its own organizer, as its duly
authorized representative. It was Littlejohn, not Brown, who
personally created and initiated the distribution of leaflets and
authorizing cards. Those cards bore Littlejohn’s name and
telephone number, not Brown’s, thus indicating to employees
that he was the sole contact person for the Union. Finally,
Littlejohn, not Brown, arranged and presided over
informational meetings, alone in front of an audience of
SAMs which often included Brown.

     This case is distinguishable from the case on which the
Company primarily relies. In NLRB v. Kentucky Tennessee
Clay Company, an apparent agency relationship was found to
exist where the union “placed the lion’s share of the
organizing work upon” and relied “squarely and exclusively”
on two employees to carry the union’s message. 295 F.3d
436, 442–46 (4th Cir. 2002). In that case, “there was no
evidence that [the union representative] or any other
professional organizer ever obtained a single signature on an
authorization card, attempted to visit the facility or to speak to
employees on its outskirts, handed out a single pamphlet, or
attempted to initiate contact with a single employee beyond
                                10
those present at the three organizational meetings.” Id. Here,
by contrast, the Union was far more directly involved:
Littlejohn did all the organizing work. It therefore cannot be
said that anything the Union did or did not do created the
appearance of an agency relationship with Brown. In fact, we
have even held that a union can leave it to employees to draft
leaflets themselves without creating an apparent agency
relationship. Amalgamated Clothing & Textile Workers
Union, 736 F.2d at 1565. Since Brown did not even do that
much independent work on behalf of the Union, it was
consistent with precedent for the Board to find that Brown did
not have apparent authority to act for the Union.4

     Second, the Company argues Brown had actual authority
to act for the Union because he was the Union’s election
observer. See Detroit East, Inc., 349 N.L.R.B. 935, 936
(2007) (“It is well settled that election observers act as agents
of the parties that they represent at the election.”). This is not
altogether wrong, but it suffers from the same flaw as the
Davlan argument: that position did not make him an agent of
the Union for every purpose. Brown was an agent of the
Union only with respect to his conduct as an election monitor.
Cornell Forge Co., 339 N.L.R.B. at 733; see also Brinks, Inc.,

4
  The Company also emphasizes that Brown was part of an in-plant
organizing committee, but we have squarely held that “the fact that
[employees] were members of the Union Organizing Committee,
alone, is not sufficient to confer apparent authority on them.”
Overnite Transp. Co., 140 F.3d at 266; see also Amalgamated
Clothing & Textile Workers Union, 736 F.2d at 1565 (noting that
“[t]o hold that the [organizing committee] members were union
agents would be in effect to penalize the union for conduct that it
has little or no power to prevent” and finding no agency
relationship). The Company’s attempt to distinguish these cases
relies on the assumption that the Union was absent from the
process—an assumption we reject.
                                 11
331 N.L.R.B. 46, 46 (2000) (assessing election monitor’s
agency relationship “at the time of his misconduct”). The
job-loss threats and general aggression and harassment at the
center of this case are both distinct from Brown’s conduct as
an election monitor; they are therefore outside the scope of
that agency relationship.5

    For these reasons, we accept as consistent with precedent
and supported by substantial evidence the Board’s conclusion

5
  The Company claims that, in the course of his election monitoring
duties and therefore within his agency relationship, Brown engaged
in unlawful electioneering when he greeted and started to hug some
voters. But we have enforced the Board’s conclusion on similar
facts that “thumbs-up gestures by themselves were not a ground
upon which to overturn the election.” U-Haul Co. of Nev., Inc. v.
NLRB, 490 F.3d 957, 964 (D.C. Cir. 2007). In addition, the
Company notes that one SAM testified she felt unsettled by
Brown’s “severe look,” but she was clear that it did not sway her
vote. ALJ Hearing Tr. at 154, 158–60. The ALJ also heard an
unsubstantiated report that a SAM turned and left the voting area
when he saw Brown in the room. “The Board has repeatedly
declined to impose a zero-tolerance rule on voting-day
electioneering,” Family Serv. Agency San Francisco v. NLRB, 163
F.3d 1369, 1381 (D.C. Cir. 1999), so the Board asks whether
Brown’s conduct as an election monitor “substantially impaired the
exercise of a free choice so as to require the holding of a new
election,” Boston Insulated Wire & Cable Sys. v. NLRB, 703 F.2d
876, 881 (5th Cir. 1983). These “incidents”—a “look” that did not
sway a vote and an uncorroborated statement that someone left the
voting area upon seeing Brown—hardly meet this standard, so the
Board’s conclusion that a do-over was not warranted is supported
by substantial evidence. Finally, the Company also complains that
Brown identified the Company’s election monitor by name on a
phone call he took in the voting area, but it never explains why this
was even inappropriate nor how it could have “substantially
impaired” free choice or the validity of the election.
                              12
that the conduct to which the Company primarily objects took
place outside of any agency relationship with the Union.

                              III

     Because the Board was justified in concluding that
neither Brown nor any of his colleagues acted as agents of the
Union when they threatened and harassed their fellow
employees, those actions are evaluated under the standard
applicable to third-party conduct. The Board will not set
aside an election based on third-party misconduct unless that
misconduct was “so aggravated as to create a general
atmosphere of fear or reprisal rendering a free election
impossible.” Westwood Horizons Hotel, 270 N.L.R.B. 802,
803 (1984). Specifically, the Board considers: (1) the nature
of the threat, (2) whether the threat was directed at an entire
unit, (3) the extent of the dissemination of the threat, (4)
whether the person making the threat was capable of carrying
it out (and whether employees likely acted on that fear), and
(5) whether the threat was made near the time of the election.
See id.

     The job-loss threats were serious, but they were only
directed at and disseminated to a few individuals. The record
reveals that, of the 117 SAMs in the unit, six were subjected
to job-loss threats in separate incidents, some of which
occurred at least a month before the election. At the earliest
of these incidents, three SAMs were present to overhear the
threat. The Company argues that, because the election was so
close, this small number of affected voters would have been
enough to tip the scale. But the inquiry for third-party
misconduct focuses more broadly on the “general
atmosphere” of the election, and the small number of affected
employees suggests that the atmosphere was not the sort that
would make a free election “impossible.” See id. In any
                              13
event, even if those factors militated slightly in favor of re-
running the election, we would still defer to the Board’s
decision because the remaining factors so clearly negate the
existence of a general atmosphere of fear. The Company’s
reassurances were sufficient to dissipate any threat.

     Indeed, the Board has held that even job-loss threats from
union representatives themselves would not necessarily void
an election because such a threat would, in the ordinary
circumstance, be “illogical”: “employees could be expected to
conclude that the Employer would not fire employees who
aided its cause” by voting against representation.
Underwriters Labs., Inc., 323 N.L.R.B. 300, 302 (1997),
enforced, 147 F.3d 1048 (9th Cir. 1998); see Janler Plastic
Mold Corp., 186 N.L.R.B. at 540 (finding job-loss threats
from a union unobjectionable); compare Lyon’s Rest., 234
N.L.R.B. 178, 179 (1978) (finding that a reasonable person
could have believed threats of job loss because a unique
“prior bargaining history between the [e]mployer and [the
union’s] sister local [union]” meant that the threats “carried a
sufficient ring of plausibility”). Coming from third parties,
such threats represent an even smaller contribution to an
atmosphere of fear. The Board’s conclusion that the job-loss
threats did not sufficiently taint the voting atmosphere is
therefore one that is consistent with its precedents and one to
which we must defer.

     The remaining harassment also does not rise to the
demanding level necessary for us to conclude the Board erred.
Name-calling, the use of racial epithets, and the anonymous
defacement of posters with bigoted and threatening language
are deplorable, but these isolated incidents do not warrant
setting aside the election under either the Board’s precedents
                              14
or our own.6 See Benjamin Coal Co., 294 N.L.R.B. 572, 573
(1989) (certifying election because “[t]he Union did not . . .
either in its campaign literature or through the conduct of its
five full-time staff organizers working on the campaign, either
echo or condone these highly offensive sentiments”); El Fenix
Corp., 234 N.L.R.B. 1212, 1213–14 (1978) (certifying
election when there was no evidence that the Union made or
endorsed racial slurs); see also Amalgamated Clothing &
Textile Workers Union, 736 F.2d at 1568 (finding the Board’s
decision not to overturn an election based on anonymous
incidents was within its discretion because ordering a rerun
election on that basis would “risk futility” and would “be
devastatingly unfair to the majority of employees who have
voted for the union”). To be sure, no employee should be
bullied or suffer vicious and racially charged attacks in the
workplace, but the Board’s assessment that the general
atmosphere at the Company did not render a free election
“impossible,” Westwood Horizons Hotel, 270 N.L.R.B. at
803, is consistent with its precedents and supported by
substantial evidence in the record.

                              IV

    Given the high level of deference we owe to the Board’s
assessment of the facts and of an election atmosphere, we find
the Board properly certified the Union as the employees’
representative. The Board was justified in concluding that the
misconduct of a few pro-Union employees was not

6
   In addition, one employee gave conflicting testimony as to
whether she was isolated from her work team because she would
not support the Union. She also said she witnessed Brown
pressuring an employee to sign an authorization card, but the
supposedly pressured employee never corroborated this testimony.
Even apart from the questionable evidentiary value of these
statements, they do not warrant setting aside the election.
                             15
attributable to the Union. There is also substantial evidence
to support the Board’s finding that the various forms of
misconduct were not sufficiently pervasive or threatening to
invalidate the representation election.     The Company’s
subsequent refusal to bargain was therefore unlawful, so we
must enforce the Board’s order.

                                                 So ordered.
     SENTELLE, Chief Judge, concurring in part and dissenting
in part: While I concur in the conclusion and most of the
opinion of the court, I write separately to express my misgivings
over the extension of what I think is already a dangerous and
mistaken line of precedent with respect to the Board’s
ascertainment of the existence of an agency relationship. The
idea that the existence of an agency relationship can be
determined by the reasonableness of the representation made by
the possible agent seems to me wholly illogical. There seems to
me to be no inherent reason why actual agents could be
presumed to say only reasonable things and self-appointed
agents could be presumed to say unreasonable ones. Further, as
applied to this case, the Board seems hardly consistent in its
analysis. The evidence before the Board, and indeed accepted
by the Board, supported the proposition that some employees
were so convinced of the reasonableness of the proposition that
the union could get them fired that they sought reassurance from
management. The record does not reveal and could never reveal
how many other employees may have heard the statements but
not sought reassurance. Indeed, to ask that question is rather
like inquiring of a spelunker as to how many miles there are of
unexplored caves. But whether one assumes that the
unsophisticated worker could be deceived by the lack of
reasonableness so apparent to the Board would appear to me to
be a question of the effect of the representation, not its apparent
authorization by way of agency.

     Neither do I think the result in this case is compelled by
Amalgamated Clothing & Textile Workers Union v. NLRB, 736
F.2d 1559, 1565 (D.C. Cir. 1984). That case, whose correctness
I would question, appears to me to be sufficiently fact-specific
as to have little compulsive force as precedent, although I
concede that it does push us in the direction taken by the court.
In the end, I will concur in the judgment, but I dissent from that
portion of the opinion relying upon the “reasonableness” of the
representation made in the determination of agency.
       HENDERSON, Circuit Judge, concurring:
        I agree with my colleagues that “[g]iven the high level
of deference” we accord the certification decision of the
National Labor Relations Board (Board) as well as the
impossibility standard by which the Board assesses a
challenge to a union election based on third-party conduct, we
should uphold the Board. Majority Op. at 14; see also N. Am.
Enclosures, Inc. v. NLRB, 213 F. App’x 2, 4 (D.C. Cir. 2007)
(“[T]he Board’s union certification decision may be
overturned [] if the activities of union supporters created an
atmosphere of fear and coercion rendering a free and fair
election impossible.”). I write separately, however, to
question whether our hands-off approach has provided these
employees with a free and fair opportunity to choose their
collective bargaining representative as guaranteed by the
National Labor Relations Act, 29 U.S.C. §§ 151 et seq.
        First, Jennings Brown and his lieutenants engaged in
unrelenting thuggery, harassment and job-loss threats which
may not have made an untainted election impossible, but
certainly affected the result of the razor-thin Union victory. At
least nine employees heard the job-loss statements, and, as
noted by the Chief Judge, at least three of them “were so
convinced of the reasonableness of the proposition that the
union could get them fired that they sought reassurance from
management.” Concurrence at 1 (Sentelle, C.J.). While we
may never know “how many other employees may have heard
the statements but not sought reassurance,” id., we do know
that if just three employees had changed their vote, the
election would have come out differently (56 votes for the
Union, 51 votes against the Union, one challenged ballot).
        Second, while I agree that “nothing in the record
suggests either the Union or Brown and his colleagues had
special leverage with the Company that would permit them to
effectuate [the job-loss] threats,” Majority Op. at 7, fellow
employees can have a “hereafter” effect on the results of an
                               2
election. Whether the Union wins or loses, beginning the day
after the election, a threatened employee will still have to deal
with his harasser.
        Finally, I echo the Chief Judge’s caution regarding our
treatment of the agency issue, especially our endorsement of
Davlan Engineering, 283 N.L.R.B. 803 (1987). In my view,
when the Board concluded in Davlan that an employee who
solicits authorization cards is a special agent for the “limited
purpose of assessing the impact of statements about union fee
waivers or other purported union policies [he] make[s] in the
course of soliciting,” 283 N.L.R.B. at 804, it unnecessarily
limited the scope of the employee’s agency and in turn
expanded the Board’s application of the ill-begotten
impossibility standard.
         In short, while I cannot say that the Board’s
certification is arbitrary in light of our standard of review, I
believe the Board’s impossibility standard and our deference
to it lead to a dubious result. If the standard is not met here—
where numerous pro-Union employees repeatedly intimidated
enough colleagues to affect the election—then this case casts
serious doubt on the efficacy of the impossibility standard to
preserve the “laboratory conditions” necessary “to determine
the uninhibited desires of the employees.” Serv. Corp. Int’l v.
NLRB, 495 F.3d 681, 684 (D.C. Cir. 2007) (quotation marks,
alteration and citation omitted).
