                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 06a0826n.06
                                 Filed: November 13, 2006

                                     Nos. 05-2378 and 05-2461


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

       Petitioner,

v.                                                      ON APPEAL FROM THE NATIONAL
                                                        LABOR RELATIONS BOARD
FAMILY FARE,              INC.,   d/b/a    GLEN’S
MARKET,

       Respondent.

                                                 /




BEFORE:          CLAY and SILER, Circuit Judges; and STAFFORD, District Judge.*

       CLAY, Circuit Judge. Petitioner, the National Labor Relations Board (“NLRB” or “the

Board”), applies to this court seeking enforcement of a Board order which found Respondent, Family

Fare, Inc., d/b/a Glen’s Market (“Glen’s Market”), to be engaging in unfair labor practices in

violation of the National Labor Relations Act (“the Act”), 29 U.S.C. §§ 158(a)(1) and (5),1 by


       *
         The Honorable William H. Stafford, Jr., United States District Judge for the Northern
District of Florida, sitting by designation.
       1
           29 U.S.C. § 158(a) provides in relevant part:

       it shall be an unfair labor practice for an employer – (1) to interfere with, restrain, or
       coerce employees in the exercise of the rights guaranteed in section 157 of this title;
       . . . (5) to refuse to bargain collectively with the representatives of his employees,
                                     Nos. 05-2378 and 05-2461

refusing to bargain with a union recently certified as the representative of a unit of Respondent’s

employees. Respondent cross-petitions requesting that this Court overturn the Board’s denial of its

objections to the election, as well as the Board’s refusal to direct a new election.

       For the reasons that follow, this Court DENIES Respondent’s cross-petition for review, and

GRANTS the Board’s application for enforcement.

                                         BACKGROUND

I.     Factual History

       Respondent operates one of its fifty-six grocery stores in Oscada, Michigan (“Oscada store”).

There are three levels of supervisory employees at the store. The top management level is that of

store director, held by Karen Gonsler. The next level consists of assistant store directors.2 The third

level of supervisory employees are the department managers. There are ten departments and

corresponding managers in the store: customer service, meat, deli, bakery, produce, grocery, night

stock, dairy, general merchandising, and frozen. The department managers conduct bi-annual

performance evaluations of the hourly employees working in their departments. The store director

then reviews these performance evaluations, using them to determine wage increases.3


       subject to the provisions of section 159(a) of this title.
       2
       Although the store had three assistant store directors in November 2001, Petitioner and
Respondent agree that the Oscada store employed only one assistant store director as of January
2002, when the election at issue occurred.
       3
        The Regional Director primarily relied upon the department managers’ involvement in
performance evaluations to conclude that they were “supervisors” as defined in the Act.
Additionally, the Regional Director found that while department managers have some involvement
in scheduling employees, granting leave requests, responding to grievances, and routine direction
of employees, they operate “within relatively fixed parameters” and with insufficient discretion to

                                                  2
                                     Nos. 05-2378 and 05-2461

       Vicki Doran, the deli department manager, initiated a union organizing campaign at the

Oscada store in mid-October 2001 with the assistance of the bakery department manager, Matt

Kovachevich. Respondent expressly opposed the union campaign. The first union meeting was held

at Doran’s house on October 19, 2001. At that meeting, Doran and others explained the advantages

of the union, including higher wages and better benefits. Doran also told the attendees at the meeting

that unionization of the store might result in the termination of the store director, Karen Gonsler.

       The record shows that prior to the election, Doran and Kovachevich engaged in prounion

activities. In October 2001, Doran approached employee, Gail Davis, asked her to fill out a union

card, and gave Davis additional cards to distribute. Davis said that Doran talked to her and other

employees in the coffee shop where the employees took their breaks. Davis testified that Doran

spoke about the union so frequently that she and other employees wanted to avoid the discussion and

took their breaks elsewhere. Doran also gave union authorization cards to dairy manager, Doug

Witkovsky, who in turn returned signed cards to Doran. Witkovsky testified that Doran called him

at home during the early days of the campaign to encourage him to join the organizing committee

and to discuss the union. Another employee, Judy Howey, also testified that Doran called her at

home in October to inform her about the organizing campaign, and a week later, Doran visited

Howey’s home to ask her to sign a union card and to tell her about the benefits of the union.

        Carolyn Toppi, store produce manager, testified that Kovachevich asked her how she

planned on voting and requested that she stay with the union, but she refused. According to Toppi,

Kovachevich stopped speaking to her after she told him she did not support the union. Both Doran


support a finding of supervisory status on those grounds alone. (J.A. at 79-81)

                                                  3
                                     Nos. 05-2378 and 05-2461

and Kovachevich testified that they did engage in union campaign activities. None of the employees

who testified at the hearing before the hearing officer worked in Doran or Kovachevich’s

departments. Moreover, none of the testifying employees who declined to sign union authorization

cards reported negative repercussions as a result of their decisions.

       During the run-up to the election, Respondent and its parent company, Spartan Stores, Inc.

(“Spartan”), issued several letters to employees and held mandatory meetings aimed at discouraging

employees from voting for the union. On December 20, 2001, Spartan issued a memo informing

employees of the decision to exclude the customer service, meat, deli, bakery, and produce managers

from the eligible voting unit. It expressly cautioned that these managers could no longer “[a]ttend

union meetings, [i]nterrogate associates regarding union representation, [or m]ake any promises or

threats to associates related to union activity.” (J.A. at 252)

       The Board conducted the secret ballot election on January 18, 2002. There were twenty-eight

votes for the union and twenty votes against it. Eight challenged ballots were cast. The union was

certified on February 22, 2005, as the exclusive collective bargaining unit of the relevant employees,

which included all clerks, cashiers, meat cutters, department specialists, and courtesy clerks.

Excluded from representation were the store director, assistant store director, customer services

manager, meat manager, deli manager, bakery manager, produce manager, managers in training,

seasonal employees, guards and supervisors.

II.    Procedural History

       On November 7, 2001, Local 876, United Food and Commercial Workers International

Union, AFL-CIO (“the Union”), filed a petition with the NLRB seeking to represent a unit of


                                                  4
                                     Nos. 05-2378 and 05-2461

employees in the Oscada store. On November 26, 2001, prior to the election, an NLRB hearing

officer conducted a hearing to consider the supervisory status of seven of Respondent’s department

managers. Respondent contended that the managers were supervisors within the meaning of the

Act4, and were therefore ineligible to vote. On December 19, 2001, the Board’s Regional Director

issued his Decision and Direction of Election, in which he found that five of the managers at issue

were in fact supervisors, including the two department managers at issue in this case, deli department

manager, Vicki Doran (“Doran”), and bakery manager, Matt Kovachevich (“Kovachevich”).

       The Union filed a request for review of the Regional Director’s decision, which Respondent

opposed. The Board issued an order denying the review, but permitted the five managers to vote in

the election subject to challenge. Following the election, Respondent filed timely objections,

alleging that the prounion activities of Doran and Kovachevich prior to the election had interfered

with the employees’ free choice in the election. On March 8, 2002, the Board issued a notice of

hearing to resolve the issues raised by Respondent’s objections and referred the matter to a hearing

officer for Report and Recommendation.




       4
           The Act defines a “supervisor” as:

       [A]ny individual having authority, in the interest of the employer, to hire, transfer,
       suspend, lay off, recall, promote, discharge, assign, reward or discipline other
       employees, or responsibly to direct them, or to adjust their grievances, or effectively
       to recommend such action, if in connection with the foregoing the exercise of such
       authority is not of a merely routine or clerical nature, but requires the use of
       independent judgment.

29 U.S.C. § 152(11).

                                                  5
                                      Nos. 05-2378 and 05-2461

        At the hearing on March 18 and 19, 2002, the parties stipulated, for purposes of resolving

the proceeding, that Bob Erwin, whose ballot was challenged, was ineligible to vote in the election

and that the challenge to his ballot should be sustained. This rendered the remaining ballots “non-

determinative insofar as they [were] insufficient in number to affect the results of the election.” (J.A.

at 168) The hearing officer recommended overruling Respondent’s objections in their entirety,

finding that there was “no need to revisit the supervisory issue.”5 (J.A. at 171, 172)

        On June 3, 2002, Respondent filed exceptions to the hearing officer’s Report and

Recommendation challenging, inter alia, the hearing officer’s conclusions that the supervisory union

campaigning was not inherently coercive and did not constitute offerings of rewards. The Board

filed its response to Respondent’s exceptions on June 10, 2002. Subsequently, on February 22,

2005, the Board issued its Decision and Certification of Representative in which it adopted the

hearing officer’s recommendation and found that a certification of representative should be issued.

        The General Counsel for the Union filed an unfair labor practices complaint before the NLRB

on April 5, 2005, alleging that Respondent had violated 29 U.S.C. §§ 158(a)(1) and (5) by refusing

the Union’s request to bargain. Respondent answered. The Union filed a motion for partial

summary judgment on May 5, 2005. On May 9, 2005, the regional office of the NLRB issued an

order transferring the proceeding to the Board and a notice to show cause why the motion should not

be granted, to which Respondent replied.




        5
         In analyzing Respondent’s objection involving supervisory campaign involvement, the
hearing officer relied upon the Regional Director’s previous finding that “Doran and Kovachevich
are statutory supervisors as defined in the Act.” (J.A. at 171.)

                                                   6
                                     Nos. 05-2378 and 05-2461

       On June 10, 2005, the Board found that Respondent’s refusal to bargain was an unfair labor

practice under §§ 158(a)(1) and (5), and directed Respondent to bargain with the Union. On October

13, 2005, the Board filed an application for enforcement of its order against Respondent6. On

November 1, 2005, Respondent filed its response and a cross-petition to review the Board’s June 10,

2005 order.

                                            DISCUSSION

SUBSTANTIAL EVIDENCE ON THE RECORD SUPPORTS THE BOARD’S DECISION
TO OVERRULE RESPONDENT’S ELECTION OBJECTIONS IN WHICH RESPONDENT
ALLEGED, INTER ALIA, THAT IMPROPER PROUNION SUPERVISORY CONDUCT
TAINTED THE ELECTION

       A.      Standard of Review

       This Court’s scope of review of Board findings is well-established. Kux Mfg. Co. v.

N.L.R.B., 890 F.2d 804, 808 (6th Cir. 1989). The Court reviews the Board’s factual findings and

application of law under the substantial evidence standard7. Id.; N.L.R.B. v. St. Francis Healthcare

Ctr., 212 F.3d 945, 952 (6th Cir. 2000). “Where there is substantial evidence in the record as a

whole to support the Board’s conclusions, they may not be disturbed upon appeal.” Kux Mfg. Co.,



       6
        This Court has jurisdiction over this petition for enforcement pursuant to 29 U.S.C. § 160
(e), which provides in relevant part:

       The Board shall have power to petition any court of appeals . . . wherein the unfair
       labor practice in question occurred or wherein such person resides or transacts
       business, for the enforcement of such order and for appropriate temporary relief or
       restraining order, and . . . the court . . . shall have jurisdiction of the proceeding, and
       of the question determined therein . . . .
       7
       The findings of the Board with respect to questions of fact if supported by substantial
evidence on the record considered as a whole shall be conclusive. 29 U.S.C. § 160(e).

                                                   7
                                     Nos. 05-2378 and 05-2461

890 F.2d at 808 (citations omitted). “The burden of proof on parties seeking to have a Board-

supervised election set aside is a heavy one . . . . An objecting party must show by specific evidence

not only that the improper conduct occurred, but also that it interfered with the employees’ exercise

of free choice . . . .” Werthan Packaging, Inc., 345 N.L.R.B. No. 30, 2005 WL 2094924, at *3

(2005) (citations and quotations omitted). An objecting party cannot satisfy the burden by merely

showing that an election “f[e]ll short of perfection.” N.L.R.B. v. Duriron Co., 978 F.2d 254, 256 (6th

Cir. 1992). “This burden is not met by proof of misconduct, but rather, specific evidence is required,

showing not only that unlawful acts occurred, but also that they interfered with the employees’ free

choice to such an extent that they materially affected the results of the election.” Kux Mfg., 890 F.2d

at 808 (internal citations and quotations omitted). “The Board has broad discretion to determine

whether the circumstances of an election have allowed the employees to exercise free choice in

deciding whether to be represented by a union.” Duriron, 978 F.2d at 256-57.

       B.      Objectionable Conduct

       Substantial evidence supports the Board’s conclusion that Respondent’s supervisors did not

engage in objectionable prounion conduct sufficient to taint the election process. In Harborside

Heathcare, Inc., 343 N.L.R.B. No. 100, 2004 WL 2915828 (2004), the Board clarified the legal

standards applicable when an employer challenges the results of an election alleging objectionable

prounion conduct. Under Harborside, the Board must consider two factors:

       (1) Whether the supervisor’s prounion conduct reasonably tended to coerce or
       interfere with the employees’ exercise of free choice in the election. This inquiry
       includes: (a) consideration of the nature and degree of supervisory authority
       possessed by those who engage in the prounion conduct; and (b) an examination of
       the nature, extent, and context of the conduct in question. (2) Whether the conduct
       interfered with freedom of choice to the extent that it materially affected the outcome

                                                  8
                                     Nos. 05-2378 and 05-2461

       of the election, based on factors such as (a) the margin of victory in the election; (b)
       whether the conduct at issue was widespread or isolated; (c) the timing of the
       conduct; (d) the extent to which the conduct became known; and (e) the lingering
       effect of the conduct.

Id. at *6. According to the Board, “an express promise or threat is not a requirement for finding

prounion supervisory conduct objectionable.” Id. Nevertheless, the Harborside inquiry seeks to

foreclose conduct – however implicit or subtly framed – that, in the aggregate, pressures employees

to support or oppose unions out of fear of retaliation or hope for preferential treatment by the

supervisor. Id. at *2 (“Whenever a supervisor engages in prounion or antiunion activities directed

at employees he or she supervises, the potential exists for these activities to put pressure on

employees, who are unlikely to forget the power the supervisor has over their work life.”). Under

Harborside, objectionable conduct includes both “actual threats” and “implied threats of retaliation.”

Id. at *6. The Board looks to “the conduct and speech of the supervisor” to determine whether, as

a whole, it “amount[s] to implicit threats or coercion.” Id. Nevertheless, some showing of coercion

is required to sustain a finding of objectionable conduct. Compare Millard Refrigerated Servs., 345

N.L.R.B. No. 95, 2005 WL 2477120, at *4 (2005) (finding objectionable conduct where several

supervisors solicited union cards from employees, including those directly on their crew; one

supervisor told employees “if the union does not get in, everybody will probably be fired” and that

same supervisor told the group he would “make [their lives] a living hell” if they didn’t support the

union) with Werthan Packaging, 345 N.L.R.B. No. 30, 2005 WL 2094924, at *2 (finding no

objectionable conduct where a supervisor approached an employee wearing a prounion button, asked

her how she intended to vote and whether she had filled out an authorization card, and told the

employee it would be in the best interest of her family to vote ‘no’).

                                                  9
                                      Nos. 05-2378 and 05-2461

        Harborside dealt with the allegedly objectionable prounion conduct of a charge nurse, Robin

Thomas (“Thomas”), at a nursing home. 343 N.L.R.B. No. 100, 2004 WL 2915828, at *3. Thomas

engaged in intimidating and threatening behavior, including ordering a subordinate employee to

attend meetings, threatening that the employee would lose her job if she did not vote for the union

because the employee had signed an authorization card, repeatedly harassing the employee about not

attending meetings, and threatening the employee two days before the election that her “days here

are numbered if this union doesn’t get in, tell your coworkers they need to vote for the union!” Id.

at *3-4. Thomas also had threatening and intimidating conversations with other employees in which

she repeatedly referenced their job security and threatened that they could lose their jobs if they voted

against the union. Id at *3. Additionally, Thomas pressured at least one employee into wearing a

union pin. Id. at *4. The pervasiveness and intensity of the supervisor’s interactions with one

employee were such that the employee filed a grievance against the supervisor, alleging that the

supervisor “continuously harassed her about supporting the Union.” Id. at *9.

        The Harborside Board concluded that Thomas’ “supervisory prounion conduct . . . was

objectionable in that it interfered with the employees’ freedom of choice so as to materially affect

the election outcome.” Id. at *2. According to the Board, Thomas’s ability to reward and retaliate

against employees, coupled with her repeated and confrontational references to job loss, “could

reasonably lead [the employees] to believe that she was not merely expressing her personal opinion,

but predicting a real prospect that they could lose their jobs.” Id. at *8. In other words, given

Thomas’s status, “the employees could reasonably conclude that [she] had the ability to affect their

job tenure if the Union lost the election.” Id.


                                                   10
                                     Nos. 05-2378 and 05-2461

       The Board in Harborside further held that “absent mitigating circumstances, supervisory

solicitation of an [union] authorization card has an inherent tendency to interfere with the employee’s

freedom to choose to sign a card or not,” and that such supervisory solicitation “may be

objectionable.” Id. at *9. Harborside strongly suggests that the Board, in applying this holding, may

appropriately consider the extent of the supervisor’s power over his subordinates, and that

supervisory solicitation is inherently coercive only where the supervisors at issue possess some

minimal quanta of authority and discretion. Id. at *10 (“[O]ur concern is that, if the[] people

[soliciting] are supervisors, the interference with employee free choice emanates from their

supervisory authority . . . .”); see also id. (finding supervisory solicitation of authorization cards

objectionable in part “because of the power of the supervisor over an employee”). The Board’s

subsequent application of Harborside further supports this proposition.8 In effect, the inquiry into

the nature and extent of supervisory authority underlies the Board’s decisions that supervisory

solicitation of authorization cards constitutes inherently coercive conduct. Notably, the Board in

Millard Refrigerated Services distinguished the Board’s decision in the instant case on this very

basis. 345 N.L.R.B. No. 95, 2005 WL 2477120, at *5 (“[I]n Glen’s Market, the supervisors’

authority was limited, the Board relying solely on participation in the evaluation process to establish



       8
           See Millard Refrigerated Services, 345 N.L.R.B. No. 95, 2005 WL 2477120, at *4 (2005)
(“Given the broad authority that the involved supervisors had over the solicited employees, and in
the absence of mitigating circumstances, we concluded that, under the first prong of Harborside, the
supervisors’ card solicitation is objectionable.”); Chinese Daily News and Commc’n Workers of
America, AFL-CIO, 344 N.L.R.B. No. 132, 2005 WL 1564871, at *3 (2005) (“We find, based on
the nature and extent of Lin’s supervisory authority and the nature, extent, and context of his conduct
. . . , that Lin’s solicitation and collection of authorization cards from the . . . employees whom he
supervised was inherently coercive.”).

                                                  11
                                     Nos. 05-2378 and 05-2461

supervisory status; whereas here, there was ‘overwhelming’ evidence that the leads possessed a wide

range of supervisory authority . . . .”). Applying Harborside and its progeny to the case at hand, this

Court concludes that substantial evidence supports the Board’s conclusion that the prounion

supervisory conduct here did not reasonably tend to interfere with the employees’ exercise of free

choice and, consequently, does not rise to the level of objectionable.

        1.     Whether the Supervisors’ Conduct Reasonably Tended to Coerce or Interfere with
               the Employees’ Exercise of Free Choice

        The first Harborside factor directs this Court to consider whether the supervisors’ conduct

reasonably tended to coerce or interfere with the employees’ exercise of free choice in the election.

Harborside, 343 N.L.R.B. No. 100, 2004 WL 2915828, at *7. Subsumed within this inquiry, this

Court must consider both “the nature and degree of supervisory authority possessed” by the

individuals at issue and the “nature, extent, and context” of their allegedly objectionable conduct.

Id. at *6.

        a.     Nature and Degree of Supervisory Authority

        In this case, the Board relied on the Regional Director’s previous determination that

department managers Doran and Kovachevich were statutory supervisors under the Act, finding it

unnecessary to further examine the issue. Substantial evidence on the record supports the Regional

Director’s finding. However, like all department managers at Respondent’s store, Doran and

Kovachevich were low-level supervisory employees and did not possess significant supervisory

authority.




                                                  12
                                     Nos. 05-2378 and 05-2461

        The charge nurse in Harborside had broad authority to finally and substantially impact the

daily work life of her subordinates.9 Unlike the rather sweeping and unchecked supervisory authority

reposed in the charge nurse in Harborside, the department managers here exercise limited authority.

They had little ability to exercise independent judgment; rather, they participated in supervisory tasks

subject to the direction and review of the store director and any assistant store directors. For

example, the Regional Director found that, while department managers created the initial weekly

schedule for employees in their department, the store director reviewed and often modified those

schedules. Moreover, while the department managers had some role to play in employee discipline,

the store director became heavily involved in deciding whether significant disciplinary action, such

as discharge or suspension, was warranted. In their most significant supervisory task – conducting

performance evaluations – the department managers’ input largely determined employee eligibility

for a wage increase.10 Such evaluations occurred at the third and sixth month for new employees,

and every six months thereafter. Consequently, Doran and Kovachevich, although properly classed




       9
           The Harborside Board found that she:

        had the authority to initiate disciplinary action[,] . . . direct nurses, assign nurses’
        schedules, make independent judgments, interview and recommend prospective
        employees, give the principal input on nursing assistants’ evaluations (which affect
        retention and pay raises), immediately suspend and send home employees, request
        employees to stay over, and recommend suspension and termination of employees.

Harborside, 343 N.L.R.B. No. 100, 2004 WL 2915828, at *4.
       10
       The Regional Director concluded on this narrow basis that department managers at
Respondent’s store are, in fact, statutory supervisors under the Act.

                                                  13
                                     Nos. 05-2378 and 05-2461

as statutory supervisors, had little authority to impact the daily work lives of employees in their

respective departments.

       Furthermore, the record establishes that neither Doran nor Kovachevich exercised actual

supervisory authority over the employees identified as persons that they directly approached about

the union and union authorization cards.11 Under Millard, prounion supervisory conduct need not

be targeted toward a direct subordinate to be objectionable where a group of prounion supervisors

work together. 345 N.L.R.B. No. 95, 2005 WL 2477120, at *4. However, in this case, the record

does not show that Doran and Kovachevich were working together and targeting each other’s

supervisees. Consequently, this Court agrees with the Board that “the lack of evidence that Doran

and Kovachevich had supervisory authority over the employees toward whom their conduct was

directed” supports a finding of nonobjectionable conduct in this case. (J.A. at 8)

       b.      Nature, Extent, and Context of the Conduct

       Doran and Kovachevich’s conduct did not rise to the level of coercive, nor did it interfere

with free choice in the election. First, their conduct was not of the frequency and intensity of that

found objectionable in Harborside and its progeny. Compare Harborside, 343 N.L.R.B. No. 100,

2004 WL 2915828, at * 9, with Werthan, 345 N.L.R.B. No. 30, 2005 WL 2094924, at * 3. Although

Doran initiated the union campaign, and spent substantial time trying to recruit people to be involved

in organizing and leading the campaign, the record does not reflect that Doran pressured the



       11
         In fact, of the four employees who testified at the hearing on the election challenge, at least
three held supervisory positions arguably on par with Doran and Kovachevich: Carolyn Toppi, the
produce manager; Judy Howey, the assistant customer service manager; and Doug Witkovsky, the
dairy manager.

                                                  14
                                     Nos. 05-2378 and 05-2461

employees – implicitly or otherwise – to support the union. Even if they spoke frequently about the

union, there is no evidence that they were putting undue pressure on other employees to join, or that

they were engaging in threatening, harassing, or intimidating behavior.12 Furthermore, the evidence

does not suggest that they promised any rewards or implied that rewards would be forthcoming if

employees supported the union.

       Second, it cannot be said that Doran and Kovachevich engaged in inherently coercive

conduct when they solicited employees to sign authorization cards and gave out stacks of cards for

others to distribute. Under Harborside, supervisory solicitation of authorization cards constitutes

inherently coercive conduct only where the supervisors at issue possess sufficiently broad and

meaningful authority. See Harborside, 343 N.L.R.B. No. 100, 2004 WL 2915828, at *10; see also

Millard, 345 N.L.R.B. No. 95, 2005 WL 2477120, at *4; Chinese Daily News, 344 N.L.R.B. No.

132, 2005 WL 1564871, at *3. As the Board’s findings suggest, the department managers at

Respondent’s store exercise only limited supervisory authority within well-defined parameters and,

often, subject to the final judgment of the store director. Where statutory supervisors do not actually

exercise power over the solicited employee, such solicitation does not rise to the level of inherently

coercive conduct. Further, in this case, Respondent’s full-scale antiunion campaign and the ultimate



       12
          Cf. Harborside, 343 N.L.R.B. No. 100, 2004 WL 2915828, at *8-9 (finding the charge
nurse “repeatedly threatened employees with the prospect of job loss” and engaged in “continuous,
pervasive, and aggressive campaigning . . . , which included soliciting employees’ signatures on
authorization cards”); Millard, 345 N.L.R.B. No. 95, 2005 WL 2477120, at *4 (noting, among other
things, that one supervisor told his subordinates that if they did not vote for the union, he would
“make [their lives] a living hell”); Chinese Daily News, 344 N.L.R.B. No. 132, 2005 WL 1564871,
at *2 (finding the supervisor distributed authorization cards and “personally watched while seven
of his supervisees signed” them).

                                                  15
                                     Nos. 05-2378 and 05-2461

exclusion of Doran and Kovachevich from participation in the campaign13 mitigate any likelihood

that the supervisors’ solicitation had any impact – however small – on the decision-making process

of the solicited employees.

        Substantial evidence supports the hearing officer’s analysis of the first factor. As stated by

the hearing officer, “[w]hile it is clear that there was supervisory involvement in support of the

union’s organizational drive, there is absolutely no record evidence of supervisory coercion or the

offering of rewards by Doran or Kovachevich, or any supervisor.” (J.A. at 171) Moreover, while

Doran and Kovachevich “may have talked about what the union may be able to do if the employees

selected it as their exclusive collective bargaining representative . . . that is nothing more than

campaign rhetoric and does not constitute the offering of rewards by the supervisors in exchange for

support.” (J.A. at 171-72) Although “an express promise or threat is not a requirement for finding

prounion supervisory conduct objectionable,” Harborside, 343 N.L.R.B. No. 100, 2004 WL

2915828, at * 6, at a minimum, implied threats or coercion must be shown to establish supervisory

misconduct. Id. (“Evidence of actual threats are [sic] not required; implied threats of retaliation are

sufficient.”) (internal citations and quotations omitted). Mere supervisory participation in the initial

organizing campaign without more does not suffice. Consequently, substantial evidence supports

the Board’s finding that Doran and Kovachevich’s prounion activity did not impact the employees’

free choice in the election.


       13
        Respondent succeeded in having Doran and Kovachevich, along with certain other
managers, excluded from participation in the campaign. Respondent also ensured that all eligible
employees were on notice as of December 2001 – prior to the vote – that Doran and Kovachevich
could no longer attend union meetings or even discuss the union with non-managerial employees,
much less impact the employees’ decisions to support or oppose the union.

                                                  16
                                     Nos. 05-2378 and 05-2461

                2.      Whether the Conduct Interfered to the Extent that it Materially Affected the
                        Outcome of the Election

         As to the second Harborside factor, the Board did not reach the issue of whether the

supervisors’ conduct interfered with freedom of choice to the extent that it materially affected the

outcome of the election. In fact, the Board found it unnecessary to answer the question since it did

not view the supervisor’s conduct as coercive or as having interfered with the employees’ exercise

of free choice in the election. Like the Board, this Court finds it unnecessary to reach the second

Harborside factor.

                                          CONCLUSION

         Substantial evidence supports the Board’s decision to deny Respondent’s election objections,

and therefore we DENY Respondent’s cross-petition for review, and GRANT the Board’s

application for enforcement of its June 10, 2005 order directing Respondent to bargain with the

union.




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