     Case: 15-60861   Document: 00513693997     Page: 1   Date Filed: 09/27/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                 No. 15-60861                         FILED
                                                              September 27, 2016
                                                                 Lyle W. Cayce
CON-WAY FREIGHT, INCORPORATED,                                        Clerk

             Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD,

             Respondent Cross-Petitioner




                On Petition for Review and Cross-Application
                    for Enforcement of an Order of the
                      National Labor Relations Board


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Con-way Freight, LLC (“Con-way”) petitions for review of a union
election at its Laredo, Texas facility, and for review of a National Labor
Relations Board (“Board”) Decision and Order finding that Con-way engaged
in unfair labor practices. The Board cross-applies for enforcement of its Order.
Con-way’s petition is DENIED; the Board’s cross-application is GRANTED.
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                                 No. 15-60861
                                        I
      Con-way provides freight services across North America and employs
over 100 drivers and dockworkers at its Laredo, Texas facility. In 2014, a group
of Con-way employees in Laredo contacted the International Brotherhood of
Teamsters, Local 657 (“Union”) regarding possible unionization. Two
representatives of the Union met with a group of Con-way employees and
explained that, once a sufficient number of employees signed representation
cards, the Union could petition the Board to conduct an election for purposes
of collective bargaining representation. The Union representatives visited with
Con-way employees multiple times, collecting signatures. Several employees
also volunteered to provide additional signature and membership cards to
coworkers and to campaign in support of the Union.
      Once enough signatures were collected, the Union petitioned the Board
for an election. An election was scheduled for the following month. Leading up
to the election, a small number of employees reported feeling harassed and
intimidated by pro-Union coworkers, with some employees testifying that they
were threatened with termination if they did not support unionization. In
addition, several anti-Union employees’ vehicles were vandalized in the weeks
prior to the election, though no culprits were ever identified.
      Before the election, the Board agent held a pre-election conference with
the parties. Con-way was represented by an experienced labor attorney, its
own assistant general counsel, and its selected observer. The Union was
represented by one of the representatives who had previously met with Con-
way employees and its selected observer. The Board agent arranged to hold the
election in the training room at the Con-way facility. Neither Con-way nor the
Union objected to the Board agent’s arrangement of the voting area at the pre-
election conference.


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      After the pre-election conference concluded, the voting began. Employees
entered the training room one at a time and filled out their ballots behind a
shielded voting lectern. The Board agent and each party’s observer were
present in the polling place. The election was close, but the Union won: 55 yea
votes against 49 nays, with an additional four challenged ballots that went
uncounted.
      Following the election, Con-way filed a number of objections and the
Board ordered a hearing. The hearing officer recommended overruling all of
Con-way’s objections. The Board adopted the officer’s recommendation, and
certified the Union as the employees’ collective bargaining representative.
Con-way refused to negotiate with the Union following the election, leading the
Union to file an unfair labor practice charge with the Board. The Board
eventually issued a final Decision and Order, finding that Con-way engaged in
an unfair labor practice when it failed to bargain with the Union. Con-way
petitioned this court for review of the election and the Board’s subsequent
Order. The Board cross-applied for enforcement.
                                      II
      “Congress has given the Board wide discretion in the conduct and
supervision of representation elections, and the Board’s decision warrants
considerable respect from reviewing courts.” NLRB v. Hood Furniture Mfg. Co.,
941 F.2d 325, 328 (5th Cir. 1991). “Our review is limited to determining
whether the Board has reasonably exercised its discretion, and if the Board’s
decision is reasonable and based upon substantial evidence in the record
considered as a whole,” the Board’s decision will be upheld. Id. “There is a
strong presumption that ballots cast under specific [Board] procedural
safeguards reflect the true desires of the employees.” Id. “A party seeking to
overturn a Board-supervised election bears a heavy burden. Its allegations of
misconduct must be supported by specific evidence of specific events from or
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                                 No. 15-60861
about specific people. Further, an election may be set aside only if the
objectionable activity, when considered as a whole . . . influence[d] the outcome
of the election.” Boston Insulated Wire & Cable Sys. v. NLRB, 703 F.2d 876,
880 (5th Cir. 1983) (internal quotations and citations omitted).
                                       III
      Con-way raises five separate arguments for setting aside the results of
the election: (1) the Board agent failed to ensure the secrecy and privacy of the
election; (2) the Board erroneously held that a group of pro-Union employees
were not agents of the Union; (3) Union agents engaged in objectionable
electioneering; (4) the election was held in an atmosphere of fear and
intimidation sufficient to taint the results; and (5) we should invalidate the
election results because the closeness of the election, combined with the
evidence supporting the four other grounds, is sufficient to taint the results.
We address each of these in turn.
                                       A.
      Con-way argues that the Board agent compromised the integrity of the
election by failing to use a proper voting booth, failing to correctly assemble
the cardboard shield used in place of a voting booth, and by not securing the
secrecy of the polling area. Ballots were cast in a three-sided cubicle-shaped
device specifically designed for elections, called the “Poll Master II.” The
training room that was used as the polling place shared a door with the
breakroom, where voters entered and exited. Persons in the breakroom could
see the front of the booth when the door opened, but they could not see what a
voter was doing inside the booth. The Poll Master II consists of a three-sided
cardboard shield for privacy, a plastic base into which the cardboard shield is
inserted, and aluminum height-adjustable legs onto which the shield and base
may be placed. The Board agent inserted the shield into the base, and then
placed the shield and base on top of a table in the polling place rather than on
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                                     No. 15-60861
the aluminum legs. Con-way maintains that because the table was slightly
lower than the legs would have been, observers were able to see more of the
voters’ upper torso and arms while voting. Con-way argues that this increased
exposure to prying eyes may have intimidated voters and caused them to
change their vote. We disagree. Observers were simply not able to see how
voters filled out their ballots. 1
                                           B.
      Con-way contends that a group of pro-Union employees who campaigned
for unionization constituted an in-house “Union Committee,” and were
therefore the Union’s agents. We apply common law agency principles in the
labor law context. See Poly-Am., Inc. v. NLRB, 260 F.3d 465, 480 (5th Cir.
2001). “One of the primary indicia of agency is the apparent authority of the
employee to act on behalf of the principal.” Id. “The test of agency in the union
election context is stringent, involving a demonstration that the union placed
the employee in a position where he appears to act as its representative.” Tuf–
Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir. 1983) (emphasis in original).
An employee who engages in “vocal and active” support does not become an
agent on that basis alone. United Builders Supply Co., 287 N.L.R.B. 1364, 1364
(1988) (holding that an employee’s status as a leading union supporter was
insufficient to establish general union agency).
      Here, the Union never appointed any employee to serve on any type of
committee on its behalf. No employee served as the primary communication
conduit between the Union and other Con-way employees. The Union
dispatched its own representatives who visited the facility on multiple
occasions, meeting with employees to explain the election process and garner


      1  At oral argument, counsel for Con-way suggested that, by seeing the upper arm and
shoulder, an observer might be able to read a voter’s body language and determine which
side of the yes/no ballot was being marked. We find that argument unavailing.
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                                  No. 15-60861
support. There were, to be sure, employees who distributed membership cards
to their coworkers and advocated for unionization, but, as the hearing officer
noted, “[t]hese interested employees were equals, just employees working
concertedly as a group in their common interest.” In any union election, it is
very likely that pro-union employees will make concerted efforts to persuade
their colleagues. Such attempts at persuasion do not make employees agents
of a union.
                                       C.
      J. J. Martinez (“Martinez”) was the Union observer during the election.
Con-way argues that, while observing the proceedings, Martinez engaged in
improper electioneering, surveillance, and list-keeping. Martinez made some
ambiguous remarks to a few voters when they entered the polling place, such
as “here we are;” “this is how we do it;” and “you know what you have to do.” It
is true that “sustained conversation” between parties to the election and
employees preparing to vote “constitutes conduct which,” “regardless of the
remarks exchanged,” “necessitates a second election.” Milchem, Inc., 170
N.L.R.B. 362, 362 (1968). “[A]pplication of this rule,” however, is “informed by
a sense of realism.” Id. At 363. Martinez’s brief, isolated remarks do not violate
the Milchem rule. See Hood Furniture, 941 F.2d at 329 (noting that “prolonged
conversations” are required to violate the Milchem rule). Martinez also
apparently flashed a thumbs-up signal to some voters, but there is no evidence
that these signals were “clearly linked to any instructions to vote for the
Union.” U-Haul Co. of Nevada, Inc., 341 N.L.R.B. 195, 196 (2004).
      In his role as observer, Martinez checked off the names of eligible voters
as they entered the room to receive their ballots. It is “well-established” that
an election may be set aside “if employee voters know, or reasonably can infer,
that their names are being recorded on unauthorized lists.” Days Inn Mgmt.
Co. v. N.L.R.B., 930 F.2d 211, 215 (2d Cir. 1991) (internal quotation omitted).
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There is no evidence here that Martinez created or maintained a separate list
of voters in violation of Board rules.
       Although we do not condone Martinez’s sometimes unprofessional
behavior, the Board reasonably exercised its discretion in concluding that none
of his actions were sufficient to “destroy the atmosphere necessary for a free
choice in the election and thus to warrant setting the election aside.” Hood
Furniture, 941 F.2d at 329.
                                             D.
       Con-way further argues that the election is invalid because it was
conducted in an atmosphere of fear and intimidation. Specifically, Con-way
alleges that Union agents and third parties threatened job loss for employees
who did not vote for the Union, that the Union created a secret “hit list” to
threaten anti-Union employees, and that a small number of anti-Union
employees’ vehicles were vandalized around the time of the election.
       The evidence indicates that rumors of termination for those who voted
against the Union were unsourced, unconfirmed, and reached only a small
number of employees. Such isolated rumors of job loss are not enough to create
an atmosphere of fear and intimidation sufficient to undermine the results of
an election. 2
       Con-way failed to present any solid evidence proving that any alleged
“hit-list” existed. Only one employee claimed to have heard rumors of such a
list. The evidence suggests that there were instead typical and permissible




       2 It is debatable whether such threats would make an employee more or less likely to
vote for a union in the first place. After all, “alleged misrepresentation of mandatory union
membership” might well “inure[] to the benefit of the Company rather than the Union.”
NLRB v. Golden Age Beverage Co., 415 F.2d 26, 31 (5th Cir. 1969). An undecided employee
might find such strong-arm tactics unseemly or unsettling, for example, and might be
inclined to vote against unionization for that reason.
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                                     No. 15-60861
campaign lists, used to gauge and track employee support for the Union prior
to the election. Such lists do not impact the integrity of an election.
      Four employees testified that, around the time of the election, their
vehicles were vandalized. All four employees had been opponents of the Union.
There is no evidence in the record identifying the vandals, however, and so the
evidence of damage has limited probative value. See NLRB v. White Knight
Mfg. Co., 474 F.2d 1064, 1067 n.3 (5th Cir. 1973) (“The rule is well established
that where the challenged conduct is not attributable to either of the parties it
can be given less weight than if the conduct were attributable to the parties
themselves.”). There is also no evidence indicating that employees’ votes were
impacted by the vandalism. We acknowledge that vehicular vandalism is
serious. Nonetheless, given the small number of incidents and the lack of
evidence linking the vandalism to Union supporters, we conclude that the
Board reasonably exercised its discretion in finding that the vandalism did not
create an atmosphere of fear and intimidation such that employees were
unable to freely cast their votes.
                                          E.
      Con-way lastly argues that the close vote, combined with all other
evidence, mandates setting aside the election. “The closeness of the election is
obviously relevant.” NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir.
1972). But “[t]he cumulative impact of a number of insubstantial objections
does not amount to a serious challenge meriting a new election.” Lamar Co.,
LLC v. NLRB, 127 F. App’x 144, 151 (5th Cir. 2005). The bulk of Con-way’s
objections are based on “isolated events involving unknown persons or other
rank and file employees rather than Union representatives.” Hood Furniture,
941 F.2d at 330. These objections, and the evidence Con-way offers in support,
are insufficient to “make a prima facie showing that the atmosphere of free
choice [was] destroyed by the alleged conduct.” Id.
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                                 No. 15-60861
                                 *     *        *
      There is no doubt that this election was imperfect. In particular,
Martinez, the Union observer, acted unprofessionally inside the polling place.
We do not condone this behavior. We do not, however, “sit to determine
whether optimum practices were followed.” Avondale Indus., Inc. v. NLRB, 180
F.3d 633, 637 (5th Cir. 1999) (internal quotation omitted). Rather, we
determine “whether on all the facts the manner in which the election was held
raises a reasonable doubt as to its validity.” Id. (internal quotation omitted).
Taken as a whole, the facts here do not raise “a reasonable doubt” as to the
validity of this election.
                                      IV
      Con-way Freight’s petition is DENIED. The Board’s cross-application for
enforcement is GRANTED.




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