N.L.R.B. v. VSA, Inc.

Decision Date12 May 1994
Docket NumberNo. 93-1677,93-1677
Citation24 F.3d 588
Parties146 L.R.R.M. (BNA) 2266, 62 USLW 2729, 128 Lab.Cas. P 11,098 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VSA, INCORPORATED, d/b/a Carolinas, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Christopher Warren Young, N.L.R.B., Washington, DC, for petitioner. Mark E. McQueen, Berens & Tate, P.C., Omaha, NE, for respondent. ON BRIEF: Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles Donnelly, Supervisory Atty., N.L.R.B., Washington, DC, for petitioner.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Enforcement granted by published opinion. Judge ELLIS wrote the majority opinion, in which Judge Murnaghan joined. Judge NIEMEYER wrote a dissenting opinion.


ELLIS, District Judge:

The principal question presented in this appeal is whether a union's promise to waive initiation fees for everyone, if elected, impermissibly taints the union's subsequent election. Because we conclude that it does not, and because we conclude that the Regional Director and National Labor Relations Board ("the Board") did not abuse their discretion with regard to other employer objections to the election, we grant enforcement of the Board's Order requiring VSA to recognize and bargain with the Union.


VSA, Inc. ("VSA"), a Greensboro, N.C. based company, distributes food products to retail vendors. In October 1991, the Chauffeurs, Teamsters and Helpers Union, Local No. 391 ("Union"), filed a petition with the Board, seeking certification as the representative for all drivers employed in the transportation division of VSA's Greensboro facility. 1 Pursuant to a stipulated election agreement, the Board conducted a secret-ballot election on November 22, 1991, with the Union prevailing by a vote of 11 to 8.

Thereafter VSA, believing that the election was tainted, filed timely objections with the Board's Regional Director. Specifically, VSA alleged that Union representatives had conditioned a waiver of Union initiation fees upon a showing of pre-election support for the Union, thereby improperly inducing employees to vote for the Union. VSA further alleged that Union representatives and supporters had threatened employees, creating an atmosphere of fear which inhibited "employees' free choice when voting." 2 In VSA's view, these and other incidents had "contaminated" the election process, making impossible a free and uncoerced election.

The Regional Director conducted an independent, confidential investigation of VSA's allegations and then issued a report concluding that none of VSA's allegations were sufficient to warrant setting the election aside. The report accordingly recommended that VSA's objections be overruled. VSA filed timely objections to this report, arguing that the Regional Director erred when he "totally dismissed the affidavits of three Company witnesses who stated that the Union Business Agent told them there would be no initiation fee if the Union was elected, but there would be initiation fees if there was a second attempt to organize." VSA also took issue with the Regional Director's conclusion that VSA's allegations, even if true, did not warrant invalidating the election. Finally, VSA argued that it had submitted evidence raising material issues of fact sufficient to warrant an evidentiary hearing.

In April 1992, the Board formally adopted the Regional Director's findings and certified the Union as the exclusive bargaining representative of employees in the designated unit at VSA. Following certification, VSA refused to bargain with the Union. As a result, the Union filed an unfair labor practice charge against VSA, which prompted the issuance of a complaint and notice of hearing alleging that VSA had violated Sections 8(a)(5) and 8(a)(1) 3 of the National Labor Relations Act ("NLRA") by refusing to bargain with the Union. VSA filed an answer admitting in part and denying in part the allegations, as well as asserting that the Board's certification of the Union had been improper.

In December 1992, the Board issued a Decision and Order, inter alia, concluding that VSA had violated Sections 8(a)(1) and 8(a)(5) of the NLRA through its refusal to bargain with the Union. 4 Accordingly, the Decision and Order required VSA to cease and desist from interfering with, restraining, or coercing employees in the exercise of their statutory rights, and further required VSA to bargain with the Union, to embody any understanding or agreement reached during bargaining in a signed agreement, and to post a remedial notice. In May 1993 the Board's General Counsel filed an application for enforcement of the Board's Order. VSA contested the application on the grounds that the Board's decision (1) ignored "critical evidence," (2) incorrectly resolved material issues and (3) contravened settled precedent. The Board rejected these contentions, and now seeks judicial enforcement of its Order.


The standards for judicial review of Board-certified elections are well-settled. To begin with, the results of a Board-supervised representation election are presumptively valid. N.L.R.B. v. Columbia Cable T.V. Co., 856 F.2d 636, 638 (4th Cir.1988). This is not an insubstantial presumption; it can be overcome only by presentation of "specific evidence not only that the alleged acts of interference occurred but also that such acts sufficiently inhibited the free choice of employees as to affect materially the results of the election." Id. at 638, quoting N.L.R.B. v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th Cir.1987). And the burden is on VSA, as the objecting party, to show that the challenged activity prejudiced the outcome of the election. See N.L.R.B. v. Manufacturer's Packaging Company, Inc., 645 F.2d 223, 225 (4th Cir.1981); N.L.R.B. v. Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967); see also N.L.R.B. v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961). Significantly, if the Board's certification decision is reasonable and based on substantial evidence in the record as a whole, then our inquiry is at an end. Hydrotherm, 824 F.2d at 334, quoting N.L.R.B. v. Klingler Electric Corp., 656 F.2d 76, 85 (5th Cir.1981); see also Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Given this rigorous standard, courts appropriately proceed with "judicial caution" before overturning a representation election. See, e.g., Columbia Cable T.V., 856 F.2d at 639; N.L.R.B. v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327-28, 91 L.Ed. 322 (1946) (The Board enjoys "a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees"). Accordingly, we review the Board's certification Order under an abuse of discretion standard. See Hydrotherm, 824 F.2d at 334; Manufacturer's Packaging Co., 645 F.2d at 226 (The Board's determination regarding the validity of an election "is within the sound discretion of the Board" and "should be reversed only when [the Board] has abused its discretion").


VSA's primary objection to enforcement of the Board's Order is that the Regional Director erroneously concluded that statements made during the election campaign concerning a waiver of Union initiation fees did not warrant vacating the election. To support its allegations, VSA submitted affidavits from three VSA employees indicating that R.W. Brown, a Union Business Agent, told employees at several pre-election meetings that initiation fees would be waived if the Union won election as the employees' representative at the November 22, 1991 election, but that if the Union did not win the election and another petition for representation was filed a "year and a day" later, everyone would be charged initiation fees. 5

These facts, VSA argues, are analogous to those in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), where the Supreme Court held that a waiver of initiation fees conditioned upon the signing of union authorization cards prior to a representation election is improper and will result in the setting aside of a union victory. Savair, 414 U.S. at 276-81, 94 S.Ct. at 498-501. 6 It follows, according to VSA, that Savair compels the conclusion that the election here in issue should be set aside. This argument, while superficially appealing, ultimately fails because Savair, closely examined, is factually distinguishable from this case in a way that points persuasively in this case to upholding, rather than setting aside, the election.

In Savair, "recognition slips" were circulated among employees prior to the representation election. Savair, 414 U.S. at 272, 94 S.Ct. at 496. Any employee who signed a slip prior to the election automatically became a member of the union, and did not have to pay an "initiation fee" or "fine." Id. at 272-73, 94 S.Ct. at 496-97. If an employee did not sign a slip and the union subsequently won the election, the employee would have to pay an initiation fee. Id. at 273, 94 S.Ct. at 497. While union officials did not conduct the solicitation of "recognition" slips, the officials did explain to employees that initiation fees would be waived only for those employees who signed the slips prior to the election. Id. at 274, 94 S.Ct. at 497-98. Finally, at least one employee testified that he signed a "recognition slip" specifically to avoid a "fine" if the union won the election. Id. at 275, 94 S.Ct. at 498. On these facts the Supreme Court concluded that "[b]y permitting the union to offer to waive an initiation fee for those...

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