10-4631
NLRB v. New Country Audi, Inc.

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 17th day of January, two thousand twelve.

Present:          PIERRE N. LEVAL,
                  ROSEMARY S. POOLER,
                  DEBRA ANN LIVINGSTON,
                              Circuit Judges.

_______________________________________________

NATIONAL LABOR RELATIONS BOARD,

                                 Petitioner,

                        v.                                            10-4631

NEW COUNTRY AUDI, INC.,

                        Respondent.
_______________________________________________

For Petitioner:                  Michelle M. Devitt, Jill A. Griffin, Lafe E. Solomon, Celeste J.
                                 Mattina, John H. Ferguson & Linda Dreeben, National Labor
                                 Relations Board, Washington, D.C.

For Respondent:                  Michael R. Hekle & Greg Riolo, Jackson Lewis LLP, White
                                 Plains, N.Y.

       Petition to enforce an order of the National Labor Relations Board (Liebman, Chairman,
Becker and Hayes, Members).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the National Labor Relations Board be and it hereby is
ENFORCED.

        The National Labor Relations Board (the “Board”) petitions this Court to enforce its
order, dated November 9, 2010, against New Country Audi, Inc. (the “Company”). We assume
the parties’ familiarity with the facts of the matter, the procedural history of the matter, and the
issues raised by the petition.

        “[T]he narrow question” in this case is “whether the Board abused its discretion in
certifying the election.” NLRB v. Arthur Sarnow Candy Co., 40 F.3d 552, 556 (2d Cir. 1994).

        In general, “an election will not be set aside on the grounds of objectionable conduct
occurring prior to the filing of the petition” by the union with the Board seeking to represent the
workers in question. ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 938 n.8 (2d Cir. 1981).
While there is an exception to this general rule—for “clearly proscribed conduct likely to have
had a significant impact on voting post-petition,” NLRB v. Semco Printing Ctr., Inc., 721 F.2d
886, 893 n.5 (2d Cir. 1983)—the remarks at issue in this case were at most enthusiastic political
grandstanding that could not possibly “have had a significant impact on voting.” Id.

       We also do not think that an employee’s mere mention of the whereabouts of a co-worker
could have “inhibit[ed] the free choice of the voters” in any way. Claussen Baking Co., 134
N.L.R.B. 111, 112 (1961). Furthermore, we cannot conclude that this incident established that
the union had “kept a running tally during the voting on how . . . employees cast their ballots.”
Janler Plastic Mold Corp., 208 N.L.R.B. 167, 168 (1974).

       Finally, the Company was not “entitled to a hearing,” given that it did not present any
evidence that established “the existence of substantial and material factual issues which, if
resolved in its favor, would require the setting aside of the representation election.” NLRB v.
Hale Mfg. Co., 602 F.2d 244, 248 (2d Cir. 1979) (internal quotation marks omitted).

      We have considered the Company’s remaining arguments and find them unpersuasive.
Accordingly, the order of the National Labor Relations Board is ENFORCED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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