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National Labor Relations Board v. Downtown Bid Services Corporation

June 22, 2012


On Application for Enforcement of an Order of the National Labor Relations Board

The opinion of the court was delivered by: Brown, Circuit Judge:

Argued April 23, 2012

Before: SENTELLE, Chief Judge, HENDERSON and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion concurring in part and dissenting in part filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge HENDERSON.

The National Labor Relations Board seeks enforcement of an order finding Downtown BID, a non-profit business improvement corporation, committed an unfair labor practice (ULP) when it refused to bargain with the International Association of Machinists and Aerospace Workers (the Union) following an employee election. Downtown BID (the Company) contends agents or supporters of the Union unlawfully threatened and harassed employees and otherwise engaged in electioneering that interfered with the fairness and outcome of the election. The Board overruled these objections and certified the Union. Because the Board's findings and conclusions are supported by substantial evidence and consistent with Board precedent, we grant the Board's application.


Around March 2009, in response to an initial overture by employee Jennings Brown, the Union began an organizing campaign to represent the Company's approximately 117 safety and maintenance workers (SAMs). Union officials, including Roosevelt Littlejohn, the Union's business representative and the main organizer of the Downtown BID campaign, solicited union authorization cards from the SAMs. Littlejohn also held six open informational meetings where he presided alone, discussing the Union and answering questions. Starting in June, Brown and several of his co- workers volunteered to support the Union, joined an organizing committee, and began to solicit authorization cards as well. Still, all of the Union's literature and all of the authorization cards were drafted by Littlejohn and had only Littlejohn's name and contact information on them.

Brown and some of his Union-supporting co-workers soon took the campaign in an aggressive and deeply troubling direction. In separate incidents, a few of these pro-Union employees threatened several of their co-workers, telling them they would be fired if they did not support the Union. Some of those employees were so disturbed by these threats that they contacted the Company's administrative department; the Company reassured them that neither Brown nor the Union could get them fired and that no one would be fired based on the outcome of the election. Some pro-Union SAMs also harassed co-workers with profanity and racial epithets, though one of those harassed also testified such language was unfortunately not uncommon in the workplace. Finally, a poster in an employee locker room was anonymously defaced with profane and racist language. According to Littlejohn, neither he nor the Union had any knowledge that employees were campaigning for the Union in an aggressive or harassing manner. He also had no knowledge of the threats of job-loss, and emphasized--credibly, in the ALJ's estimation--that such conduct was not authorized or approved by the Union.

When voting ultimately took place that July, Brown was selected by the Union as its election observer--simply because, as Littlejohn testified, "[w]e couldn't get anybody else." ALJ Hearing Tr. at 248. Brown greeted voters and approached one as if to embrace him or her, but he was admonished not to by the Board's election observer and returned to his seat. One other potential voter was reported to have turned and left once he saw Brown in the room, and another employee also testified she received a "severe look" from Brown, though she voted freely anyway. Id. at 154, 158-60. Brown also took a phone call during a break in the voting and identified the Company's observer by name to the person with whom he was speaking. When the voting ended, 56 ballots had been cast in favor of the Union and 51 against the Union. There was one challenged ballot that was not resolved.

The Company timely filed objections to the election, arguing that the narrow victory was the result of threats, harassment, and unlawful electioneering by Brown and his cohorts. An ALJ heard two days of testimony in March 2010, after which he recommended that the Board overrule all of the Company's objections and certify the Union. The Board adopted the ALJ's findings and certified the Union on December 23. Downtown BID Servs. Corp., Case 5-RC- 16330 (N.L.R.B. Dec. 23, 2010) ("Election Decision").

The Union requested bargaining and the Company refused. This move by the Company sets up judicial review of an election certification that is otherwise insulated from direct review. Boire v. Greyhound Corp., 376 U.S. 473, 476- 77 (1964) ("Board orders in certification proceedings . . . are not directly reviewable in the courts . . . [but are instead] normally reviewable only where the dispute concerning the correctness of the certification eventuates in a finding by the Board that an unfair labor practice has been committed . . . ."); Hard Rock Holdings, LLC v. NLRB, 672 F.3d 1117, 1120 (D.C. Cir. 2012). In due course, a complaint was issued against the Company for its refusal to bargain, 29 U.S.C. § 158(a)(5), and the Board, rejecting the Company's claims that the Union had been wrongfully certified, found on April 4, 2011 that the Company committed the ULP as charged and ordered the Company to recognize and bargain with the Union.*fn1 Downtown BID Servs. Corp., 356 N.L.R.B. No. 130 (Apr. 4, 2011) ("ULP Decision").

The Board now seeks enforcement of that April 4 Order. Because the Company does not deny its refusal to bargain, the validity of the Order turns on the validity of the representation election. The scope of our review of the Board's rulings regarding the election is "extremely limited," Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559, 1564 (D.C. Cir. 1984), and we must respect the Board's "broad discretion" to assess representation elections, AOTOP, LLC v. NLRB, 331 F.3d 100, 103 (D.C. Cir. 2003). If the Board's decision to certify a union is consistent with its precedent and ...

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