National Labor Relations Board v. New Country Audi, Inc.

448 F. App'x 155

• Court: Court of Appeals for the Second Circuit
• Decided: January 17, 2012
• Docket: 10-4631
• Status: Unpublished

Opinion

SUMMARY ORDER

The National Labor Relations Board (the “Board”) petitions this Court to enforce its order, dated November 9, 2010, against New Country Audi, Inc. (the “Company”). We assume the parties’ familiarity with the facts of the matter, the procedural history of the matter, and the issues raised by the petition.

“[T]he narrow question” in this case is “whether the Board abused its discretion in certifying the election.” NLRB v. Arthur Sarnow Candy Co., 40 F.3d 552, 556 (2d Cir.1994).

In general, “an election will not be set aside on the grounds of objectionable conduct occurring prior to the filing of the petition” by the union with the Board seeking to represent the workers in question. ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 938 n. 8 (2d Cir.1981). While there is an exception to this general rule — for “clearly proscribed conduct likely to have had a significant impact on voting post-petition,” NLRB v. Semco Printing Ctr., Inc., 721 F.2d 886, 893 n. 5 (2d Cir.1983) — the remarks at issue in this case were at most enthusiastic political grandstanding that could not possibly “have had a significant impact on voting.” Id.

We also do not think that an employee’s mere mention of the whereabouts of a coworker could have “inhibit[ed] the free choice of the voters” in any way. Claussen Baking Co., 134 N.L.R.B. 111, 112 (1961). Furthermore, we cannot conclude that this incident established that the union had “kept a running tally during the voting on how ... employees cast their ballots.” Janler Plastic Mold Corp., 208 N.L.R.B. 167, 168 (1974).

Finally, the Company was not “entitled to a hearing,” given that it did not present any evidence that established “the existence of substantial and material factual issues which, if resolved in its favor, would require the setting aside of the representation election.” NLRB v. Hale Mfg. Co., 602 F.2d 244, 248 (2d Cir.1979) (internal quotation marks omitted).

We have considered the Company’s remaining arguments and find them unpersuasive. Accordingly, the order of the National Labor Relations Board is ENFORCED.