Overnite Transport v. NLRB , 294 F.3d 615 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OVERNITE TRANSPORTATION COMPANY, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,  No. 01-1388
and
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
Intervenor.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.  No. 01-1498
OVERNITE TRANSPORTATION COMPANY,
Respondent.

On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board.
(18-CA-15496)
Argued: January 25, 2002
Decided: July 1, 2002
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
2 OVERNITE TRANSPORTATION CO. v. NLRB
Enforced by published opinion. Judge Luttig wrote the opinion, in
which Judge Niemeyer and Judge King joined.
COUNSEL
ARGUED: Christopher A. Johlie, MATKOV, SALZMAN, MAD-
OFF & GUNN, Chicago, Illinois, for Overnite. William M. Bernstein,
Senior Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Marc Allen Stefan, BUTSAVAGE &
ASSOCIATES, P.C., Washington, D.C., for Intervenor. ON BRIEF:
Kenneth T. Lopatka, Kenneth F. Sparks, Brian V. Alcala, MATKOV,
SALZMAN, MADOFF & GUNN, Chicago, Illinois, for Overnite.
Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Frederick
C. Havard, Supervisory Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Board. Carey R. Butsavage,
BUTSAVAGE & ASSOCIATES, P.C., Washington, D.C., for Inter-
venor.
OPINION
LUTTIG, Circuit Judge:
Overnite Transportation Company is a trucking company that oper-
ates approximately 176 terminals in North America. Some local
unions affiliated with the International Brotherhood of Teamsters
filed petitions with the National Labor Relations Board seeking to
represent employees at four of these terminals — in Lexington, Ken-
tucky; Buffalo, New York; Detroit, Michigan; and Bowling Green,
Kentucky. Elections were held; the Board found that the IBT locals
won at all four terminals and certified the locals as exclusive bargain-
ing agents. After Overnite refused to bargain with the locals, the
Board ordered it to do so. J.A. 1722-28. Overnite petitions for review
of the Board’s order. For the reasons that follow, we deny Overnite’s
petition for review and enforce the Board’s order.
OVERNITE TRANSPORTATION CO. v. NLRB 3
I.
Overnite first challenges the Board’s bargaining unit determina-
tions at the Lexington and Buffalo terminals. In Lexington, IBT Local
651 petitioned to represent two separate employee units: a "driv-
ers/dockworkers" unit, which included approximately 243 road driv-
ers, city drivers, jockeys, and linehaul workers, and a "mechanics"
unit, comprising 53 mechanics and other shop employees. Although
Overnite argued for a single bargaining unit at Lexington comprised
of all its employees at the depot, the Board’s Regional Director held
that the separate units sought by Local 651 were appropriate. J.A.
549-57.1 In Buffalo, IBT Local 375 petitioned to represent only the
32 drivers and dockworkers who worked at that terminal. Again,
Overnite sought to include the three mechanics who worked at the
Buffalo terminal in the bargaining unit, but to no avail. Although the
Regional Director agreed with Overnite that the mechanics should be
included in the bargaining unit, the Board reversed, holding that the
mechanics need not be included.2 J.A. 882-85; 1016-19.
Section 9(b) of the National Labor Relations Act authorizes the
Board to decide "the unit appropriate for the purposes of collective
bargaining," 29 U.S.C. § 159(b), and the Board enjoys broad discre-
tion in determining the appropriate bargaining unit. See Arcadian
Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir. 1978). Section
9(c)(5) of the Act, however, imposes a statutory constraint on the
Board’s discretion:
In determining whether a unit is appropriate for the purposes
specified in subsection (b) of this section the extent to which
the employees have organized shall not be controlling.
The "extent of organization" refers generally to "the groups of
employees on which the union has focused its organizing efforts." See
1
The union won the election among the Lexington driv-
ers/dockworkers unit by a vote of 127 to 123, and lost the election in the
separate Lexington mechanics unit by a 42 to 9 vote.
2
The union won the election in the mechanics-excluded Buffalo unit
by a vote of 16 to 14.
4 OVERNITE TRANSPORTATION CO. v. NLRB
NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580 (4th Cir. 1995) (cit-
ing 1 The Developing Labor Law at 452).
Overnite contends that the Board violated section 9(c)(5) by
excluding the mechanics from the units sought by the Teamsters in
Lexington and Buffalo. As evidence of this statutory violation, Over-
nite relies on the Board’s decision to include mechanics in a single
bargaining unit at its Memphis terminal when the Teamsters
requested a mechanics-included unit there.3 Claiming that the Mem-
phis terminal is "factually indistinguishable" from the Lexington ter-
minal, Overnite argues that the Board’s exclusion of mechanics from
the Lexington drivers/dockworkers unit and the Buffalo unit was
"controlled" by the Teamsters’ desire to focus its organizing efforts
on mechanics-excluded units at those terminals.
A.
We first address, but do not resolve, the parties’ differing construc-
tions of section 9(c)(5). The Board, correctly noting that there may be
more than one "appropriate" bargaining unit under section 9(b), and
that the Board is "free to select any one of these appropriate units as
the bargaining unit," Arcadian Shores, 580 F.2d at 119, believes that
section 9(c)(5) applies only to Board determinations that a proposed
bargaining unit is an appropriate unit — in other words, a candidate
for selection as the unit in which the election will be held. Section
9(c)(5) imposes no constraint, in the Board’s view, on its ability to
choose which of the "appropriate" units will be the unit selected for
the purposes of collective bargaining. Accord Country Ford Trucks,
Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C. Cir. 2000) ("[T]he NLRB
may simply look at the Union’s proposed unit and, if it is an appropri-
ate unit, accept that unit determination without any further inquiry.").
On this reading, the plain language of section 9(c)(5) addresses only
the question of whether a unit is appropriate; it does not regulate the
Board’s ultimate selection between competing appropriate units.
Overnite interprets section 9(c)(5) to prohibit the Board’s actual
selection of a bargaining unit from being "controlled" by the extent
3
The union lost the election in the mechanics-included Memphis unit.
OVERNITE TRANSPORTATION CO. v. NLRB 5
of organization. The Board crossed that line, according to Overnite,
by adopting a policy of selecting whatever bargaining unit the union
requests, so long as that petitioned-for unit is "appropriate" under the
"community of interests" test. See J.A. 1016. Overnite further con-
tends that our precedents foreclose the Board’s construction of section
9(c)(5), in particular statements found in Singer Sewing Machine Co.
v. NLRB, 329 F.2d 200, 205 (4th Cir. 1964) ("[I]f the evidence estab-
lishes that the extent of union organization was the controlling factor
in the selection of the Pittsburgh City District as the appropriate unit,
the resulting order finding the refusal to bargain to be an unfair labor
practice is invalid.") (emphasis added), and Arcadian Shores, 580
F.2d at 120 ("[T]he burden rests with [a party seeking to establish a
section 9(c)(5) violation] to establish that the extent of union organi-
zation was the dominant factor in the Board’s determination of the
bargaining unit.") (emphasis added).
B.
We leave this issue for another day,4 because we conclude that
even under Overnite’s construction of section 9(c)(5), which we will
assume applies but do not adopt, Overnite has not presented sufficient
evidence to show that the extent of organization was "controlling" in
the Board’s selection of mechanics-excluded bargaining units in Lex-
ington and Buffalo. Nowhere does the NLRA define "controlling" for
purposes of section 9(c)(5), but several possibilities present them-
selves. The broadest interpretation of "controlling" would prohibit the
Board from even considering extent of organization as a factor in its
4
The competing readings of section 9(c)(5) present a particularly
knotty question of statutory construction, as what seems to be the plain
language of the statute is difficult to reconcile with statements found in
our precedents. We note, however, that none of these decisions cited by
Overnite, which include NLRB v. Lundy Packing Co., 68 F.3d 1577 (4th
Cir. 1995), NLRB v. Glen Raven Knitting Mills, 234 F.2d 413 (4th Cir.
1956), and Singer Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir.
1964), actually analyzed this statutory interpretation issue in section
9(c)(5), nor did they consider and reject the Board’s proffered construc-
tion of the statute before us. When confronted with potentially inconsis-
tent, yet binding, authority, the best course of action is to decide the case
on other grounds, if at all possible.
6 OVERNITE TRANSPORTATION CO. v. NLRB
unit determination decisions. The Supreme Court rejected this con-
struction out of hand in NLRB v. Metropolitan Life Insurance Co.,
380 U.S. 438, 442 (1965) ("Section 9(c)(5) [does not] prohibit the
Board from considering the extent of organization as one factor,
though not the controlling factor, in its unit determination."). See also
General Instrument Corp. v. NLRB, 319 F.2d 420 (4th Cir. 1963)
("[A]lthough the extent of organization may not be controlling, it may
be a factor."). The stingiest reading of the statutory prohibition would
only prevent unit determinations in which extent of organization was
the sole factor used in the decision. Our court has steered a middle
path between these extremes, holding that section 9(c)(5) allows the
Board to consider the extent of organization as one factor in its unit
determination decisions, but prohibits the extent of union organization
from being "the dominant factor in the Board’s determination of the
bargaining unit." Lundy Packing Co., 68 F.3d at 1580 (quoting Arca-
dian Shores, 580 F.2d at 120 (emphasis added)).
The Board chose a mechanics-included unit at Overnite’s Memphis
terminal and mechanics-excluded units at the Lexington and Buffalo
terminals. Insisting that the labor situation at its Memphis terminal is
"factually indistinguishable" from its Lexington terminal (but not its
Buffalo terminal), Overnite claims the Board simply "gave the union
any unit it want[ed]." But this, by itself, does not necessarily prove
that extent of organization was "controlling" in the Board’s unit deter-
mination. Simply because that factor may have been determinative in
the selection of the Memphis and Lexington bargaining units does not
make it controlling under section 9(c)(5); any permissible factor may
tip the balance in a close case. See Texas Pipe Line Co. v. NLRB, 296
F.2d 208, 213 (5th Cir. 1961) ("By definition such a factor, in a close
case, may be determinative; otherwise the factor is deprived of all sig-
nificance.").
Instead, Overnite’s burden, under its construction of section
9(c)(5), is to show that the extent of organization was the dominant
factor in the Board’s unit determinations. See Lundy Packing Co., 68
F.3d at 1580; Arcadian Shores, 580 F.2d at 120. A comparison of the
Regional Directors’ decisions in the Memphis and Lexington unit
determinations reveals this not to be the case. In the Memphis unit
determination, the Regional Director relied on community of interest
factors, as well as caselaw supporting the inclusion of mechanics and
OVERNITE TRANSPORTATION CO. v. NLRB 7
drivers in the same bargaining unit, in finding that the mechanics
were an "essential link" in Overnite’s operations. Appellant’s Br. at
Add. 24. In the Lexington decision, the Regional Director did explic-
itly acknowledge that "a [union’s] desires concerning the composition
of the unit(s) which it seeks to represent constitute a relevant consid-
eration," J.A. 553, but also buttressed its decision with caselaw find-
ing separate bargaining units to be appropriate under circumstances
similar to those at Lexington. J.A. 553. The reasons given by the
Regional Directors in the Memphis and Lexington unit determinations
reveal that extent of organization was, at most, a factor considered in
the unit determinations; it was not the dominant factor.5
In addition, Overnite’s claim that the Memphis and Lexington
facilities are "factually indistinguishable" lacks credibility given the
characterizations it made before the Board’s Regional Director in the
Memphis case. To give just two examples, in the Memphis case Over-
nite argued to the Regional Director that the mechanics’ "contact with
the other employees is minimal." Appellant’s Br. at Add. 24. Now,
Overnite would have us believe that at all its terminals, including
Lexington, Buffalo, and Memphis, "[m]echanics frequently interact
with employees working in other classifications. For example, road
drivers must bring their tractors into the shop for inspection upon
arrival at the terminal . . . . Likewise, city drivers frequently interact
with mechanics when they call the shop for assistance with their units
. . . ." Appellant’s Br. at 15-16. Also in the Memphis case, Overnite
claimed that the mechanics "are paid more than the other employees."
Appellant’s Br. at Add. 24. Now, Overnite says the mechanics at all
Overnite terminals "are part of the same pay structure as drivers,
dockworkers, jockeys, and other terminal employees" and "operate
under the same wage progression program as the other employees."
Appellant’s Br. at 14-15. It is difficult for an appellate court to accuse
the Regional Directors of unprincipled decisionmaking based on rep-
resentations that are completely contrary to what one of the Regional
Directors heard below. But, again, even if we were to assume that the
Memphis and Lexington facilities were completely identical, Overnite
5
See NLRB v. Southern Metal Service, Inc., 606 F.2d 512, 514 (5th Cir.
1979) ("Explicit recognition of [a union’s] desire as a factor in the bal-
ancing process does not make it "controlling" within the prohibition of
the statute.").
8 OVERNITE TRANSPORTATION CO. v. NLRB
has merely demonstrated that extent of organization was a factor in
its unit determination, which Metropolitan Life Insurance allows.
More troubling, perhaps, is the Board’s statement, in its decision
denying Overnite’s motion for reconsideration of its unit determina-
tion at the Buffalo terminal, that "[t]he Board’s declared policy is to
consider only whether the unit requested [by the union] is an appro-
priate one, even though it may not be the most optimum or most
appropriate unit for collective bargaining." J.A. 1016 (emphasis
added). This could mean that the Board considered only two factors
in the Buffalo unit determination: 1) extent of organization, and 2)
whether the proposed unit is an appropriate one under the "commu-
nity of interests" test. As Overnite puts it, the union gets the unit it
wants so long as that unit is appropriate. While Overnite suggests that
this standard is a per se violation of section 9(c)(5) (adopting,
arguendo, Overnite’s construction of that statute), we disagree. The
Board’s announced standard may lead to some decisions where the
extent of organization will be the dominant factor in unit selection
(such as in cases where the community of interest considerations in
support of the union’s proposed unit are weak), but not all cases will
be like that. And that did not happen here, where the Board supported
its decision to exclude the mechanics from the Buffalo unit with
numerous community of interest factors. J.A. 882.6 While we are sen-
sitive to Overnite’s concern that the Board could circumvent Over-
nite’s construction of section 9(c)(5) by reciting "community of
interest" factors as window dressing to mask what is in reality the
dominance of union organizational concerns, the mere fact that the
Board found a mechanics-included unit at Overnite’s Memphis termi-
nal does not convince us that the community of interest factors given
by the Board in this case for excluding the mechanics at Buffalo or
Lexington were pretextual.
Thus, even under Overnite’s construction of section 9(c)(5), which
we do not adopt but rather assume arguendo applies, we find no statu-
6
The Board relied, among other things, on the lack of regular inter-
change between the mechanics and other employees in the unit, the
mechanics’ specialized skill and training, the distinct shifts worked by
the mechanics, and the lack of common supervision over the mechanics
and the other employees at the Buffalo terminal. J.A. 882.
OVERNITE TRANSPORTATION CO. v. NLRB 9
tory violation in the Board’s unit determinations at Lexington or Buf-
falo.
II.
We next turn to Overnite’s contention that the Board improperly
excluded the ballots of Wayne McDaniel and Roger Riddell in the
Lexington driver/dockworker unit election. Local 651 prevailed in
that election by a four-vote margin, not counting the votes contained
in seven challenged ballots. The Board sustained the challenges to
McDaniel’s and Riddell’s ballots, but overruled the challenges to
three of the seven ballots. The Board, however, did not open and
count those three ballots because they could not, in light of the
union’s four-vote lead, be outcome-determinative.
If Overnite is correct that McDaniel’s and Riddell’s ballots were
improperly excluded, these ballots (combined with the three ballots
that the Board held were improperly excluded) could affect the out-
come of the election. Accordingly, we address Overnite’s claim that
the Board should have counted McDaniel’s and Riddell’s ballots.
The Board refused to count the ballots because it concluded that
McDaniel and Riddell were "operations clerks" who were excluded
from the Lexington drivers/dockworkers bargaining unit pursuant to
an oral stipulation. J.A. 1240. Overnite insists that McDaniel and Rid-
dell are not "operations clerks" and, in any event, claims that the
Board misconstrued its stipulation. The now-disputed "stipulation"
was made at a hearing on December 15, 1995:
HEARING OFFICER JACOBSON: All right. In addition
there are two OS&D clerks and four operations clerks who
the parties agree are office clerical employees who should
be excluded from the unit, is that correct?
MR. STEFAN:7 That’s correct.
MR. SALZMAN:8 Yes.
7
Mr. Stefan represented Local 651 at the hearing.
8
Mr. Salzman represented Overnite at the hearing.
10 OVERNITE TRANSPORTATION CO. v. NLRB
J.A. 312. The stipulation contains a dangling modifier — "who should
be excluded from the unit." Overnite believes it only modifies the six
individuals referenced in the stipulation (which do not include
McDaniel and Riddell), whereas the Board thinks it modifies not only
those six individuals but all office clerical employees. Either reading
is permissible, but the Board’s decision to exclude the ballots of
McDaniel and Riddell does not stand or fall on how we parse the oral
stipulation.
At the very least, Overnite agreed with the union that four of the
operations clerks should be excluded from the bargaining unit. Once
that step was taken, the Board could permissibly keep any other oper-
ations clerks out of the bargaining unit in keeping with its "commu-
nity of interests" standard. Indeed, it would be difficult for a
reviewing court to sustain as "appropriate" any bargaining unit that
included (or excluded) only a portion of a group of workers with iden-
tical job functions. So the Board could permissibly exclude the ballots
of other operations clerks, even if we adopted Overnite’s narrow
interpretation of the stipulation. That means the Board could sustain
the challenges to McDaniel’s and Riddell’s ballots — so long as the
Board accurately characterized McDaniel and Riddell as "operations
clerks."
And we have no doubt that it did, notwithstanding Overnite’s pro-
test that neither McDaniel nor Riddell is classified as an operations
clerk. (McDaniel is classified as a dockworker, and Riddell is classi-
fied as a dock leadman.) Overnite does not dispute the Board’s find-
ings that McDaniel became a full-time operations clerk in 1985, and
his reclassification as a dock worker in 1994 was only because of a
change in Overnite’s classification or wage structure. J.A. 1182.
McDaniel’s duties did not change after this reclassification and he tes-
tified that he has not worked on the dock at all since 1985. Id. Nor
does Overnite dispute the Board’s finding that Riddell works exclu-
sively in the road dispatch office and performs the functions of an
operations clerk, notwithstanding his classification as dock leadman.
Id. By focusing, as the Board did, on the McDaniel’s and Riddell’s
actual job duties rather than their nominal classifications given by
Overnite, we are satisfied that the Board properly classified them as
operations clerks and properly sustained the challenges to their bal-
lots.
OVERNITE TRANSPORTATION CO. v. NLRB 11
III.
Overnite also seeks to set aside the election results in Lexington,
Buffalo, Detroit, and Bowling Green on the grounds that the Locals
engaged in unlawful election-day surveillance at these terminals. The
results of a Board-supervised representation election are presump-
tively valid, see NLRB v. Columbia Cable T.V. Co., 856 F.2d 636,
638 (4th Cir. 1988), and Overnite must rebut this presumption with
"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." NLRB
v. Hydrotherm, Inc., 824 F.2d 322, 334 (4th Cir. 1987) (quoting
NLRB v. Handy Hardware Wholesale, Inc., 542 F.2d 935, 938 (5th
Cir. 1976)).
A.
We begin with Lexington. Overnite complains that agents of Local
651 photographed employees as they entered the Lexington terminal
to vote on election day. Board precedent allows unions to photograph
employees during a unionization campaign, so long as the photogra-
phy is unaccompanied by express or implicit threats or other forms of
coercion. See Randell Warehouse of Arizona, 328 NLRB No. 153(1999),9 enforcement denied on other grounds, Randell Warehouse of
Arizona, 252 F.3d 445 (D.C. Cir. 2001). Overnite argues, first, that
Local 651’s surveillance was accompanied by threats and coercion,
and second, that the Board’s use of the Randell Warehouse standard
is an unreasonable interpretation of the NLRA.
Most of Overnite’s examples of "express or implied threats or coer-
cion" are exaggerated, and, moreover, are unrelated to the photo-
9
Randell Warehouse overruled the Board’s decision in Pepsi-Cola Bot-
tling Co., 289 NLRB 736 (1988), which held that union videotaping of
employees during an election campaign is objectionable conduct that
warrants setting aside the election, unless the union offers the employees
"a legitimate explanation" for the videotaping.
The Randell Warehouse standard has no bearing on union photography
of employees engaged in picket line activities. See 328 NLRB No. 153n.9.
12 OVERNITE TRANSPORTATION CO. v. NLRB
graphs taken on election day. The comments uttered by pro-Teamster
employee Bill Stamper to pro-Company employees were vulgar, but
hardly constitute "threats."10 Although pro-Company employee Bill
Clark testified that he overheard someone say "[h]e’ll regret the day
that he ever took it upon himself to support the Company," J.A. 1326,
this incident was unconnected to the photography that took place on
election day.
Overnite does reference one arguably threatening incident that
occurred on election day, where Mark Stratton, a pro-union employee
who had been taking photographs of employees, drove his tractor
trailer into a hole that splashed mud on a group of pro-Company
employees. J.A. 1291-97. The hearing officer, however, found that
the incident was accidental, J.A. 1484, and we are in no position to
second-guess his fact-finding and evaluation of the witnesses’ credi-
bility. While it is still conceivable that the mud-splashing incident,
even though inadvertent, might have made the election-day photogra-
phy seem more coercive or threatening to some of Overnite’s employ-
ees, we cannot conclude that the Board abused its discretion in
finding otherwise, given the record in the case. It was therefore per-
missible for the Board to find the union’s photography at Lexington
unobjectionable under the Randell Warehouse standard.
That leaves the question of whether the Board’s application of the
Randell Warehouse standard to this case is a permissible interpreta-
tion of the NLRA, which forbids labor organizations from "restrain[-
ing] or coerc[ing] employees in the exercise of rights guaranteed in
section 157 of this title." 29 U.S.C. § 158(b)(1)(A). Among those
"rights guaranteed" to employees is the right to refrain from assisting
labor unions, see 29 U.S.C. § 157, and a union’s use of photography
or videotape to record employees’ anti-union preferences during an
organization campaign, may, in some instances, violate the Act by
instilling a fear of retaliation against anti-union employees, either by
physical violence or economic reprisal in the event the union becomes
10
Stamper told pro-Company employee Gerard Snowden, "I’m kicking
ass and taking names," J.A. 1249, but the next day, Stamper apologized
to Snowden for the incident. J.A. 1250. Stamper told another pro-
Company employee that "if you don’t vote for Union you’re a dickhead,"
J.A. 1314, which is not a threat.
OVERNITE TRANSPORTATION CO. v. NLRB 13
certified and gains control over advancement within the company.
Overnite believes the Randell Warehouse standard will countenance
such violations of the Act, by presuming all union photography dur-
ing a campaign to be legitimate unless the employer can show it was
accompanied by "express or implied threats or other coercion."
We have little doubt that there will be some instances of union pho-
tography that will be inherently restraining or coercive of the right of
employees to exercise their section 7 rights. If the Board condones
such actions, under the guise of Randell Warehouse or any other stan-
dard, a Court of Appeals can and should deny enforcement to its
order. We do not think, however, that the Board’s application of Ran-
dell Warehouse to permit the photography at issue at Lexington vio-
lated section 8(b)(1)(A) of the Act. The record reveals that the
photographers only took pictures of unit employees as they entered
the terminal to vote, which does not record how that person voted or
whether he or she supports the union. In the absence of any sugges-
tion that the pictures could be used to retaliate against anti-union
employees, we cannot conclude that the Lexington photographs were
inherently restraining or coercive of the exercise of section 7 rights.
We will enforce the Board’s certification of Local 651.
B.
At Buffalo, Overnite complains that Local 375 agent Mario
Bonafede took photographs of employees as they exited the terminal
on election day. Bonafede’s son also shot eleven minutes of videotape
of trucks entering and leaving the terminal during the evening voting
session. For the reasons discussed above, we do not believe this use
of photography, which simply records the fact that employees voted,
not their pro- or anti-union preferences, necessarily constitutes a vio-
lation of section 8(b)(1)(A) of the Act, absent reason to believe the
photos could be used for a retaliatory purpose. And without evidence
of express or implicit threats or other forms of coercion accompany-
ing the photography, we do not believe the Board misapplied its Ran-
dell Warehouse standard by certifying Local 375. The alleged
incidents involving Dave Maloney (a pro-Company employee) who
testified that he heard a "thud" against his vehicle as he reported to
work on election day) and Bob Carlson (who turned his head away
14 OVERNITE TRANSPORTATION CO. v. NLRB
as his picture was taken) are too isolated and de minimis to warrant
setting aside an election. See Hydrotherm, Inc., 824 F.2d at 334.
C.
In Detroit, Local 299 videotaped or photographed members of the
unit as they arrived for and left work. Again, the Board found that this
photography was not accompanied by express or implied threats or
coercion sufficient to set aside the election under Randell Warehouse.
J.A. 1498-1501.
Overnite relies on examples of alleged threats and coercion in
Detroit that it recited before the Board, yet the Board considered these
incidents and found that they were not nearly as threatening or coer-
cive as Overnite would have us believe. As an example, Overnite
claims that when Larry Schellenberger arrived at work, Jim Rice
yelled at him, "Hey, Larry, there goes an Overnite scab." J.A. 1501.
Yet the Board found that Schellenberger and Rice were friends who
"cut up" together on the job, and that Schellenberger did not feel
threatened or coerced by Rice’s comment. Id. The Board also found
that vulgar comments made to Philip McGaha, such as "f—king scab"
and "traitor," "could not have constituted interference inhibiting or
affecting McGaha’s vote because he had already voted at the time that
these remarks were made." J.A. 1501.
Overnite recites the testimony in the record but does not endeavor
to refute, or even discuss, the Board’s characterization of this evi-
dence. As a reminder to Overnite, we are reviewing the Board’s deci-
sion, not conducting an independent evaluation of the evidence
pertaining to the election in Detroit. Simply repeating the testimony
regarding threats and coercion that the Board heard, without explain-
ing how the Board erred in its factfinding by not crediting this evi-
dence, does nothing to convince a reviewing court to deny
enforcement to the Board’s order. Accordingly, we will enforce the
Board’s certification of Local 299.
D.
Lastly, we turn to Bowling Green. Overnite relies on an affidavit
from employee John Gifford, who says he observed Teamster repre-
OVERNITE TRANSPORTATION CO. v. NLRB 15
sentatives force two Overnite employees to pose for a picture while
holding a "Vote Yes" placard. Overnite conveniently ignores the fact
that both employees testified themselves that the photographs were
voluntary. J.A. 616-17. We find this claim of objectionable conduct
to be without merit, and enforce the Board’s certification of Local 89.
IV.
Because Overnite refused to bargain with the four locals in Lexing-
ton, Buffalo, Detroit, and Bowling Green, the International Brother-
hood of Teamsters called a nationwide strike against Overnite to
protest. Overnite alleges that this strike has been plagued with vio-
lence and seeks a hearing before the Board to present evidence
regarding the Teamsters’ alleged post-election misconduct as grounds
for revoking the four previously-certified elections in Lexington, Buf-
falo, Detroit, and Bowling Green. See Laura Modes Co., 144 NLRB
1592, 1596 (1963) (denying a union a bargaining order where "the
Union evidenced a total disinterest in enforcing its representation
rights through the peaceful legal process provided by the Act in that
it resorted to and/or encouraged the use of violent tactics to compel
their grant"); Union Nacional de Trabajadores, 219 NLRB 862, 863
(1975) (revoking a union’s certification where the union, "by its bru-
tal and unprovoked physical violence . . . has evinced an intent to
bypass the peaceful methods of collective bargaining contemplated in
the Act . . .").
To be entitled to an evidentiary hearing, Overnite must make a
proffer of evidence "which prima facie would warrant setting aside
the election." The Methodist Home v. NLRB, 596 F.2d 1173, 1178
(4th Cir. 1979) (quoting NLRB v. Bata Shoe Co., 377 F.2d 825, 826
(4th Cir. 1967)). Such a proffer, however, may not be conclusory or
indefinite but must relate to "specific evidence of specific events from
or about specific people." Id. (quoting Electronic Components Corp.
of N.C. v. NLRB, 546 F.2d 1088, 1091 (4th Cir. 1976)).
The Board denied a hearing on this issue because it concluded that
any alleged misconduct on the part of the international union could
not be attributed to the four locals under the law of agency. J.A. 1724.
It is the conduct of the local unions, as the certified bargaining repre-
sentatives, rather than the conduct of the IBT, which is a separate
16 OVERNITE TRANSPORTATION CO. v. NLRB
labor organization, that determines whether Laura Modes relief is
appropriate. J.A. 1724. ("[W]e particularly rely on the fact that the
evidence does not show a deliberate plan of violence and intimidation
by any of the certified Locals.").
Overnite’s proffer fails to aver specific facts showing the use or
encouragement of violence by the four local unions it seeks to decer-
tify. Instead, Overnite’s proffer repeatedly blames the international
union for the violence, insisting that the strike "has been orchestrated,
overseen and directed at all times by the IBT and can only be called
off by the IBT." J.A. 1541. Overnite did specifically accuse some
local union officials of violent misconduct, J.A. 1557, but none of
those was an official of any of the four local unions at issue in this
case. Nor does Overnite’s proffer include specific evidence of an
actual or apparent agency relationship that would make the four locals
responsible for the actions of the IBT. The simple observation that the
locals stand to benefit from the international union’s actions does not
render them vicariously responsible for the IBT’s misdeeds.
CONCLUSION
The Board’s order will be enforced in its entirety, and we accord-
ingly deny Overnite’s petition for review.
ENFORCED