By George Kennedy
On March 15, 2016, the Fourth Circuit issued its amended published opinion in the case of Pac Tell Group, Inc. v. National Labor Relations Board. The Fourth Circuit held that the decision of the National Labor Relations Board [“the NLRB”] over a dispute between an employer and the union representing its employees was supported by substantial evidence and therefore denied the employer’s petition for review.
Union Election at U.S. Fibers
The origin of this dispute centers around the decision of factory workers employed by U.S. Fibers to unionize. U.S. Fibers is a South Carolina-based company which recycles polyester fibers. The United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied-Industrial and Service Workers International Union, Local 7898 [“the union”] hoped to recruit U.S. Fibers employees to join and filed an election petition with the NLRB. The NLRB granted the union’s request and directed an election at the U.S. Fibers plant. The union won the election, meaning that the union gained the right to be the exclusive collective bargaining representative for U.S. Fibers employees.
Following the unionization of its employees, however, U.S. Fibers refused to recognize the union or engage in collective bargaining with it. The employer asserted that the NLRB’s certification of the union was improper and that the results of the election should be set aside. The employer raised two issues in support of its position: (1) that the NLRB improperly designated four employees who participated in the union election as non-supervisors and (2) that these same employees engaged in objectionable conduct in regards to the election. The NLRB disagreed, and ordered that the employer recognize the union and bargain with the union upon request. In response, the employer sought review of the NLRB order at the Fourth Circuit.
Standards of Review
As the Fourth Circuit held, the standards of review for judging the actions taken by the NLRB when resolving union election issues are generally quite deferential. The Fourth Circuit maintained that it will presume that the results of union elections are valid, and therefore it will not set aside the results of the election unless the NLRB “has clearly abused its discretion.” For factual findings made by the NLRB, the Fourth Circuit will affirm such findings so long as they “are supported by substantial evidence considering the record as a whole.”
U.S. Fibers first argued that the NLRB erred in concluding that four employees were not supervisors as the term is defined under 29 U.S.C. § 152(11). To be considered a supervisor under the statute, an employee must perform one or more listed supervisory functions as well as exercise his or her authority using “independent judgment.” U.S. Fibers sought to establish that these four employees were supervisors because supervisors are generally prohibited from interfering with their employees’ freedom of choice in union elections.
U.S. Fibers made four separate arguments to show that the four employees were supervisors as defined under 29 U.S.C. § 152(11). The NLRB rejected each one of these arguments in turn and the Fourth Circuit upheld the NLRB’s decision to do so. The Fourth Circuit affirmed the NLRB’s findings on the matter under the deferential “substantial evidence” standard. The Fourth Circuit held that the record provided ample support for each of the NLRB’s findings. Therefore the Fourth Circuit was without justification to review the NLRB’s determination that the four employees at issue were not supervisors and thus were not prohibited from interaction with subordinate employees in regards to the union election.
U.S. Fibers then made a subsequent argument to the effect that even if the four employees at issue were not supervisors as defined under 29 U.S.C. § 152(11), they nevertheless engaged in objectionable conduct in the lead-up to the election. U.S. Fibers argued that the conduct of these employees was objectionable enough to constitute grounds for setting aside the results of the union election. The NLRB again disagreed with U.S. Fibers, and the Fourth Circuit affirmed the NLRB’s decision. As the Fourth Circuit explained, misconduct by non-supervisory employees is only grounds to set aside the results of a union election “if such conduct ‘was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.’” The Fourth Circuit held that the NLRB did not abuse its discretion in holding that the conduct complained of did not rise to the level required to set aside election results. As the Fourth Circuit reasoned, the conduct complained of was merely general comments about potential future job loss as a result of refusing to vote for unionization. Therefore, the Fourth Circuit held that the NLRB was more than justified in rejecting U.S. Fibers’ arguments on the subject.
Petition for Review Denied
Accordingly, the Fourth Circuit denied U.S. Fibers’ petition for review of the NLRB’s order and granted the NLRB’s cross-application for enforcement of its order.