N. of Market Senior Serv. v. Nat'l Labor Bd.

• Decision Date: 10 March 2000
• Docket Number: No. 99-1178,99-1178
• Citation: 204 F.3d 1163
• Parties: (D.C. Cir. 2000) North of Market Senior Services, Inc.,Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1163

204 F.3d 1163 (D.C. Cir. 2000)

North of Market Senior Services, Inc.,Petitioner v. National Labor Relations Board, Respondent

No. 99-1178

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 2000

Decided March 10, 2000

[Copyrighted Material Omitted]

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

Paul B. Johnson argued the cause and filed the briefs for petitioner.

Sonya Spielberg, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel.

Peter D. Winkler, Supervisory Attorney, entered an appearance.

Before: Edwards, Chief Judge, Ginsburg, Circuit Judge, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

The petitioner in this case, North of Market Senior Services ("North of Market"), a medical care provider for low-income senior citizens, challenges the National Labor Relations Board's ("Board" or "NLRB") order requiring it to bargain with the Service Employees International Union, Local 790 ("Union"). Following a representation election held on January 6, 1998, the Union was certified on September 28, 1998, as the exclusive bargaining agent for a unit of employees at North of Market. The employer's objections to the election were considered, without a hearing, and overruled by the Board's Regional Director in a written Report that was subsequently adopted by a three-member panel of the Board, over one dissent. Board Member Peter Hurtgen dissented from the Board's failure to provide a hearing on two of the objections raised by North of Market. North of Market then refused to bargain, prompting the issuance of an unfair labor practice complaint by the Board's General Counsel. On Motion for Summary Judgment, a three-member panel of the Board found that North of Market had unlawfully refused to bargain, in violation of sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act, and ordered the employer to bargain with the Union as the employees' exclusive representative.

The Board now seeks enforcement of its order. North of Market, in turn, argues that certain impermissible actions of the Board's agent who conducted the election and Union representatives who were present during the balloting process so tainted the election procedure that the results should be set aside or, at a minimum, the case should be remanded for a hearing on the employer's objections.

On the morning of the election, the Board agent who conducted the election sent Union agents into North of Market's facilities to tell employees that they could vote between 11:00 a.m. and 1:00 p.m. For approximately half an hour, the Union agents walked through the employer's facilities, telling employees that they had been sent by the Board to tell them when the polls were open. The Union agents even went so far as to walk into private medical examination rooms where patients were being examined. As the Union agents talked with employees on the employer's premises, they openly rejected a manager's assertion that employees needed to take their lunch break to vote. The manager who accompanied the Union agents filed a declaration saying that she was "powerless to stop this rampage through [the employer's] facility or to counter what the union agents were doing or saying." Decl. of Gloria Valoris, reprinted in Deferred Appendix ("D.A.") 85.

North of Market contends that the election should be invalidated, because the disputed conduct impugned the integrity of the election and interfered with the employees' free and uncoerced choice in the election. North of Market argues, in the alternative, that, at the very least, the Board erred in denying it a hearing on its objections. We agree. When a party objecting to an election presents specific, prima facie evidence that an election is invalid, the Board is required to hold a hearing. See 29 C.F.R. 102.69(d) (1999);Swing Staging, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir. 1993). North of Market has presented such evidence in this case. Thus, the petition for review is granted in part and the case is remanded. On remand, the Board must either invalidate the election results and schedule a new election or hold a hearing on the objections raised by North of Market to determine whether to hold a new election.

I. Background

In the fall of 1997, the Union began a campaign to organize the employees of North of Market's San Francisco facility. On November 24, 1997, the Union filed a petition to represent the employees of that facility. The election was set for January 6, 1998. North of Market complains about a number of different incidents surrounding the election. However, only two charges raised by North of Market--the claims that the actions of the Board agent and Union representatives destroyed the integrity of the election and interfered with free and uncoerced voting--warrant our attention.

On the morning of the election, Board Agent Wayne Chin held a pre-election conference with Gloria Valoris, the Executive Director of North of Market, and Union organizers Jen Lai and Louisa Blue. The description of the events that follows is gleaned entirely from Gloria Valoris' perspective, as her affidavit and declaration are the only evidence in the record as to what happened that morning. According to Ms. Valoris, Jen Lai told Mr. Chin that she had heard that supervisors were telling employees that they could only vote on their lunch hour between 12:00 p.m. and 1:00 p.m. If this was true, it was wrong, because the polls were scheduled to be open from 11:00 a.m. to 1:00 p.m. Ms. Valoris asserted that it was not true. She said that employees had been told that they had to vote during their lunch break, but that they could take their lunch hour any time between 11:00 a.m. and 1:00 p.m. At this point, with the polls opening in less than half an hour, Mr. Chin made a poor judgment call.

Mr. Chin decided that the employees should be informed about the correct voting time. At first he considered sending Ms. Valoris into the facility to deliver the message to the employees. Then he changed his mind and told her that she should have a non-supervisor make the announcement. He changed his mind again and settled on a final course of action:"He ... said that the two union agents should make the announcement to employees that they could vote any time between 11 and 1." Aff. of Gloria Valoris, reprinted in D.A. 90-91. Ms. Valoris states that it was her "impression that [she] was to just escort them through the office to show them where employees were working." Id. at 90.

The Union agents apparently were not shy in carrying out their assignment: Wearing their Union insignia in full view, they patted employees on the arm or back, shook their hands like good buddies, and told them that they had been sent by the NLRB to say that employees could vote any time between 11 and 1. The Union agents added that employees did not need to take their lunch break to vote. This was contrary to Ms. Valoris' view, and she followed the Union agents around telling employees that they could take their lunch any time between 11 and 1, but that they did have to take their lunch to vote. The Union agents, however, frustrated her efforts to get that message across. "Whenever I would make that statement," she said, "the union agents would contradict my instructions, telling employees that they had been sent by the Board agent to tell them that they could vote whenever they wanted and it did not have to be on their lunch hour." Decl. of Gloria Valoris, reprinted in D.A. 85. All of this took place from approximately 10:50 a.m. until 11:15 a.m., fifteen minutes into the election.

During this time, the Union agents also walked into patient examination rooms, delivering their message to the employees there. According to Ms. Valoris, "[t]hey barged into exam rooms unannounced and without any permission from me."Id. Ms. Valoris says that elderly patients were being treated in these rooms and that some of them were in various states of undress. Ms. Valoris states that she "was powerless to stop this rampage through our facility or to counter what the union agents were doing and saying, particularly in light of their repeated statement to employees that they had been sent by the NLRB." Id. The election otherwise continued as planned.

The Union won by a vote of 15 to 11, and North of Market filed timely objections to the election. The Regional Director investigated, but held no hearing, and recommended overruling the objections. The Board, with one member dissenting, adopted the Regional Director's findings and recommendations. North of Market Senior Servs. Inc., Case No. 20-RC17350 (Sept. 28, 1998). The dissenting member believed that the conduct described above warranted a hearing. Id. at 2 n.2. The Union was certified, but North of Market, in order to obtain judicial review of the decision to certify the Union, refused to bargain. An unfair labor complaint was issued against North of Market. The Board, on a Motion for Summary Judgment, held that North of Market violated 29 U.S.C. 158(a)(1) and (5) and ordered North of Market to bargain with the Union. North of Market Senior Servs., Inc., 327 N.L.R.B. No. 197 (Mar. 24, 1999). This appeal followed.

III. Discussion

The Board's discretion to assess the propriety and results of representation elections is broad. Thus, it is well established that a court will overturn a Board decision to certify an election in only the rarest of circumstances. See E.N. Bisso & Son, Inc. v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996). A party seeking to overturn an election bears a heavy burden of showing that the election is invalid. See Swing Staging, Inc. v. NLRB, 994 F.2d 859, 861 (D.C. Cir. 1993). But a...