UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FAM SVC AGCY

v.

NLRB


98-1204a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: In June 1996, the Service Employees  International
Union Local 790, AFL-CIO ("Union") began a  campaign to unionize a
daycare site operated by Family  Service Agency San Francisco ("FSA"),
a private agency  hired by state and local authorities to provide
child care to  underprivileged children. The Union set about
organizing  the supervising teachers, who were in charge of six class-
rooms at the site, as well as the assistant teachers, teachers' 
aides, and the facility's office and support workers. In Octo- ber
1996, the Union filed a petition with the National Labor  Relations
Board ("NLRB" or "Board") seeking a representa- tion election among
these employees. FSA objected to the  proposed bargaining unit on the
ground that supervising  teachers were statutory supervisors and so
disqualified under  the National Labor Relations Act ("NLRA" or "the
Act")  from inclusion. After a hearing, the Board's Regional Di-
rector found that they were not supervisors and ordered an  election
in the petitioned-for unit. On appeal, the Board  amended this ruling
to permit the supervising teachers to  vote subject to challenge. See
Joint Appendix ("J.A.") at 42  (Order of Dec. 19, 1996).


The election was held on January 8, 1997. The union won  25 to 12, with
one challenged ballot. At the pre-election  conference, FSA did not
challenge the ballots cast by super- vising teachers. After the
election, it filed the following  objections: (1) the Union destroyed
the laboratory conditions  of the election by improperly appealing to
racial prejudice  during the election campaign; (2) the election was
tainted by  the involvement of supervisory teachers in the election
pro- cess; (3) Union supporters engaged in improper electioneer- ing
during the voting; (4) the Union engaged in misconduct 


when its agents improperly invaded the workplace; and (5)  the
election was invalid because the Union failed to file  reports
required by the Labor-Management Reporting and  Disclosure Act
("LMRDA"), 29 U.S.C. ss 431(a), 431(b), 432  & 435.1 The Board's
hearing officer, after four days of  testimony, issued a report which
recommended that all of the  objections be overruled. FSA filed
exceptions with the  Board, but the Board rejected them and instead
adopted the  hearing officer's findings and conclusions. The Decision
and  Certificate of Representative issued on October 17, 1997.  FSA
refused to bargain with the Union on the ground--the  same raised in
its objections--that the election was not  conducted lawfully. J.A. at
107 (Answer to Complaint). The  Union filed a complaint with the
Board, charging that FSA  violated sections 8(a)(1) and (5) of the
National Labor Rela- tions Act ("NLRA" or "the Act"), 29 U.S.C. s
158(a)(1) and  (5), and the NLRB General Counsel subsequently brought
an  unfair labor practice charge against the agency. The Board 
granted the NLRB's motion for summary judgment, and FSA  asks that we
deny enforcement of the Board's order to  bargain collectively.2 The


We hold that FSA is estopped from attempting to litigate  the question
whether the election was tainted by the involve- ment of supervisors.
FSA waived its right to a ruling on  whether the supervising teachers
are statutory supervisors 




__________

n 1 FSA also objected that the Union improperly threatened em- ployees,
made promises of monetary reward and made misrepresen- tations during
the campaign. The Board's rejection of these objec- tions was not
raised here.


2 Certification by the Board is not an "order" subject to judicial 
review, see American Fed'n of Labor v. NLRB, 308 U.S. 401 (1940),  so
review of certification proceedings must await a final order by  the
Board in an unfair labor practice proceeding (often called a 
"technical refusal to bargain") under sections 10(e) and (f) of the 
NLRA, as amended, 29 U.S.C. ss 160(e) and (f). The record of the 
certification proceeding becomes part of the record for review in the 
unfair labor practice case pursuant to section 9(d), 29 U.S.C.  s


during the prior representation proceeding, and may not  bring that
issue before this court. We also find that the  Board reasonably
concluded that FSA's other objections  lacked merit.


I. Background


Teachers and administrators work in close proximity at  FSA's Bryant
Street site, serving 160 children aged two  weeks to three years old.
Each classroom is staffed by a  supervising teacher, an assistant
teacher, and teachers' aides.  When the Union began its organizing
campaign in June 1996,  racial discord already characterized relations
between Afri- can-American and Latina3 employees. The supervisor of
the  center, Vivian Storey, who is African-American, testified that 
at some point before the Union's arrival, a Latina co-worker  told
Storey that she could not socialize with her African- American
co-workers anymore because she had been ha- rassed by another Latina.
J.A. at 510. In addition, the  employees took racially segregated
lunch periods, with Latina  workers eating from 12:30 to 1:30 and
African-Americans  from 1:30 to 2:30 p.m. J.A. at 552.


The Language Issue


The pivotal issue that drove a wedge between Latina and 
African-American workers--the alleged presence of a policy  limiting
use of Spanish in the classroom and front office-- surfaced well
before the unionization campaign. In early  1996, there were a series
of meetings among administrators  in which the staff addressed, among
other things, complaints  about Sandra Ramirez, who worked in the
center's front  office and dealt with agency clients. J.A. at 751-58
(testimo- ny of Claudette Darley, operations manager). At one such 
meeting, according to Darley, one of Ramirez' supervisors,  Ramirez
was instructed to speak English whenever she was  in a group of people
that included non-Spanish speakers. 




__________

n 3 We use the term "Latina" to refer to employees whose first 
language is Spanish because the Spanish-speaking employees at  issue
in this case are all women.


J.A. at 767. Ramirez was told of an incident in which three 
African-American parents were standing in the office while  the Latina
staff conversed in Spanish, and Ramirez was  warned that this could be
considered insulting by non- Spanish-speaking parents. Id.; see also
J.A. at 797 (notes  from 1/11/96 staff meeting).


The language issue arose again on June 5, 1996, when a  staff meeting
was held among the teachers in Room 2.  Among the teachers who
attended were Phyllis Hogan, the  African-American supervising teacher
for the room; Edith  Ruiz, a Latina teachers' aide; and Johnny
Overton, an Afri- can-American substitute teachers' aide. According to
testi- mony and contemporaneous hand-written notes from the  meeting
(it is not clear from the record who served as note- taker) a parent
had complained about the Latina staff's  speaking Spanish to her son.
The notes from the meeting set  forth the following: "It is
appropriate to speak Spanish to  children whose primary language is
Spanish, as long as it is  in accordance with their parents' wishes.
It is appropriate to  speak Spanish to Spanish-speaking parents in
order to convey  information or explain things more clearly." J.A. at
796  (emphasis in original). "If a non-Spanish-speaking parent or 
staff member is nearby when Spanish is being spoken, a staff  member
will attempt to give a short explanation in English of  what is being
discussed so they don't feel unwelcome or  uncomfortable; Ex: 'Hi ___.
I was just explaining this  memo to ___. I'll be right with you.' "


Some time later in June, according to Ruiz, Ruiz was  speaking Spanish
to a parent and Hogan came into the room.  Hogan "touched me on the
shoulder and she told me, 'Re- member.' And then she told me ... that
we were going to  have a short meeting," Ruiz testified. J.A. at 706.
Once the  children went down for their naps, Hogan asked Ruiz wheth-
er she remembered that she should not speak Spanish, ac- cording to
Ruiz, and Ruiz asked for a written policy regarding  the language
issue. J.A. at 706-07. This was followed by a  tense interaction
between Storey, who subsequently inter- vened, and Ruiz; Ruiz
testified that Storey told her she was  in America and should speak
English, J.A. at 706, but Storey 


denied this and recalled that she told Ruiz each employee  needed to
be sensitive to other cultures, J.A. at 527. "My  words was to her
that there is a whole lot of rules and  regulations that I do not
like," Storey testified, "and I said if  I could not follow the rules
and stuff, then it was time for me  to leave." Id.


Also at the end of June, the teachers in Room 7/9 held a  staff meeting
at which they discussed the use of Spanish.  Notes from this meeting
reflect mounting tension over the  issue. Marva Stephens, the
African-American supervising  teacher in the classroom at the time,
indicated on the "Meet- ing Outcome" form that "[t]o identify speech
and language  problems, staff will use English then Spanish to enhance
 receptive language skills, and to assist development by speak- ing
English." J.A. at 804. But Lourdes Perez, a Latina  teachers' aide,
wrote in Spanish her own version of what  happened at the meeting on
the "Meeting Outcome" form.  Perez testified that her notation reads:
" 'Today, June 26, our  supervisor once again has forbidden us. She
does not want  us to talk Spanish in the rooms. And that she does not
care  what the Union' has said...." J.A. at 726. At the hearing, 
Storey denied directing Stephens to implement an "English- only"
language policy. J.A. at 570.


The Organizing Campaign


In their testimony Storey and other higher-ranking em- ployees all
unequivocally denied that FSA ever had an "En- glish-only" language
policy, but Latina employees felt that  their supervisors were
increasing pressure on them to stop  speaking Spanish. When the Union
began to hold meetings  among employees in the prospective bargaining
unit in the  summer of 1996, J.A. at 512, the language issue was one
of  the first workplace problems that the Latina employees men- tioned
to Union organizer Ruben Garcia. J.A. at 719 (testi- mony of Lourdes
Perez); J.A. at 735 (testimony of Ruben  Garcia). Garcia testified
that he referred the employees to  La Raza Central Legal, a public
interest law organization  which specializes in Latino issues, in an
effort to extricate the 


union from the language issue because it "in my experience [ ]  shows
to be a divisive issue." J.A. at 735. Garcia also  testified that the
Union never distributed literature address- ing the language issue.
J.A. at 739. Not surprisingly, the  union drive was still racially
divisive. Two African-American  employees, Art Marshall, the cook at
FSA, and Ann Douglas,  a substitute teachers' aide, testified that
they initially attend- ed some Union meetings. As the campaign
continued into  the fall, however, Garcia conducted the meetings
primarily in  Spanish, with English translation. Marshall and Douglas 
thought that they were being denied a full understanding of  what was
said at the meetings, and Marshall, who had  approached Garcia several
times about his concerns that  African-Americans had been left out of
the organizing efforts,  felt that the Union did not care about the
concerns of  African-American workers. Marshall said:


... I even told him [Garcia], hey man, ... some of the  blacks kind of
like want to bow out of this because we  feel like our issues aren't
being met and most of the  Chicano issues are.


He said, well, we'll get with that, you know.... I even  told him how
to go about bringing the blacks back into  the thing, but he kind of
like ignored it, overlooked it  or--that's the way I look at it.


....


I just said that I think we should, you know, we should  try to get
together, you know, and keep blacks involved  in this, because I was
still strongly for the Union and  then he kept saying, ... we'll deal
with it, and that never  came. It never happened.


... I think the issues were for the Spanish and not me  as a black
man.


J.A. at 639-41. Hogan and teachers' aide Shereece Cooks,  also
African-American, were approached at different times by  Latino
employees about the Union, but they neither received  any Union
literature nor were they asked to sign authoriza- tion cards. Overton
testified that she was never approached 


by a Union organizer or supporter.4 By mid-fall, Marshall  and Douglas
stopped attending Union meetings. After the  election, when a Union
organizer called Douglas and invited  her to a victory party, it was,
in her view, a day late and a  dollar short; Douglas refused to
attend. J.A. at 621-22.


The Press Event


Workplace tensions skyrocketed when, on September 20,  1996, a
television station came to Bryant Street and inter- viewed Latina
employees about the language issue during the  12:30 lunch hour.
According to a San Francisco Examiner  article that featured the same
interviews, the employees  accused the management at FSA, and Storey
in particular, of  preventing them from speaking Spanish on the job
through  harassment and intimidation. J.A. at 773. Assistant teacher 
Reyna Ferreira was quoted as saying, " 'Whenever [Vivian  Storey, the
site supervisor] or the other superiors hear us  speak Spanish, they
come up and say "English, English,  English." ' " Id. Perez was also
quoted: " 'Our supervisors  look at us like we're bad, like we're
criminals because we  speak Spanish.' ... 'Vivian says to us, "You are
in America.  You have to learn English." ' " Id. No African-American 
employees or managers from the Bryant Street site were  interviewed,
although Shereece Cooks testified that she saw  the Latina employees
ask Art Marshall if he would go on  camera. J.A. at 577-78.


The identity of the organizer of this press event was  disputed during
the hearing, and FSA argues here that the  Union sponsored it. Garcia
denied this and testified that he  thought a lawyer from La Raza had
contacted the media.  Garcia was present at the event but he did not
speak on  camera; witnesses saw him chatting with employees after 
they had been interviewed. Sandra Ramirez was under the 




__________

n 4 Various witnesses acknowledged, however, that Garcia visited  the
Latina lunch hour, and not the later one attended by African-
Americans, because Storey and other supervisors usually ate during 
the later period.


impression that the other Latina employees at FSA had  contacted the
press.


After this publicity, African-American employees were livid  and the
racial divide widened. "[F]rom then on, they [Afri- can-American
co-workers] changed their attitude towards us  a lot and they didn't
treat us the same, and ... they looked at  us badly," Lourdes Perez
testified. J.A. at 491. Ann Doug- las said that the Latina employees
"stopped speaking, some of  them. When I would walk [into her
classroom] in the morn- ing and say good morning, some of them would
speak, some  wouldn't, and I would go on one side of the room, on the
other  side with my kids...." J.A. at 618. Marshall said that he 
feared physical violence would erupt. J.A. at 649. In Octo- ber,
Cooks, Overton and Douglas all complained to Storey  that they felt
they were being taunted by the Latina employ- ees who continuously
spoke only Spanish in their presence, an  occurrence that became more
frequent after the press inter- views.


The Radio Interview


In November 1996, Garcia arranged an interview with  himself, Ramirez
and Perez at a Spanish-language radio  station in San Francisco. The
three talked, in Spanish, about  the language policy problem at FSA.
Perez said in the  interview that "Even with the parents themselves
who don't  understand the language, English, we're told that we have
to  talk to them in English even though they [ ] talk to us in 
Spanish...." J.A. at 779. Garcia explained that his Union  was trying
hard to organize the public sector because "there  are many conditions
similar to what Sandra and Lourdes are  expressing here." J.A. at 792.
He continued, "[W]e also  found that there were other workers,
non-Latinos who were  also suffering from mistreatment and from, from
low wages  and exploitation that they were enduring. That is we came
to  find out that there were many more problems than about  Spanish
but the Spanish problem was one that stood out  because of the
magnitude of it." J.A. at 793. Ramirez and  Perez played a tape of the
interview during the lunch hour of 


the Latina employees, although there is no evidence that any 
African-American workers heard the broadcast. Jones testi- fied that
she heard someone utter the words, in English,  "black monkey," but
she did not know whether the words  came from the tape or from Perez,
who was in the room. The  transcript from the interview does not
contain those words in  English or Spanish. J.A. at 774-95. Soon
after, at Thanks- giving, the traditional school-wide potluck
degenerated into  two separate luncheons, one for African-Americans


The Workplace Visits


During the organizing period, Garcia and another Union  organizer,
Doris Mitchell,5 occasionally came to the Bryant  Street premises to
talk to employees, usually during the 12:30  lunch hour. Storey
testified that she saw Mitchell "six or  seven times" on the premises,
but Storey's only confrontation  with Mitchell occurred in August
1996, when she came across  Mitchell conversing with employees in the
lunchroom. Storey  opened the door and closed it, and thought she
heard Mitchell  shouting and laughing at her. This happened again, and
 Storey left. Mitchell left shortly thereafter. J.A. at 540-41. 
Later, in early December, Storey had an encounter with  Garcia, who
was in the lunchroom during the 12:30 period.  Storey asked Garcia to
leave, and he refused. J.A. at 544.  Storey left to go to her office
to call the police, and Garcia  "came up to the office and he said to
me he had every right  to, in a loud manner, to be there." Id. Garcia
announced  that he would stay until 1:30 and then depart--which he
did.  The police were never summoned and there were apparently  no
witnesses to the encounter in the office. J.A. at 545.


The Vote


On January 8, 1997, the day of the election, there was a  pre-election
meeting with the NLRB agent to discuss the  rules for voting.
Witnesses agreed that the Board agent did 




__________

n 5 Mitchell is African-American and ran the first few Union meet- ings
in the summer of 1996, until Garcia took over.


not establish a "no-electioneering" zone and did not issue  rules
governing the conduct of employees during the voting  period. An FSA
employee, Jaynie Lara, was appointed to  read the voting "script" to
the workers in each classroom and  to escort employees from their
classrooms or the office to the  lunchroom, where votes were cast. At
one point during the  hour and a half voting period, according to
Lara, she told an  on-call cook, Arturo Martinez, to sit in a chair
outside the  lunchroom, which was off the main hallway, and wait his
turn  to vote. For approximately 20 minutes, Martinez spoke to  the
voters who, one-by-one, entered and exited the lunch- room. Lara
estimated the number of voters whom Martinez  addressed as 10.
Martinez told the employees in Spanish to  "stick together" and "vote
for the union," according to Lara,  and also asked them how they had
voted. J.A. at 434. Lara  also recalled that three employees stood
clustered in the door  of Room 7/9 for about half an hour during the
voting and  made similar comments to voters; two employees behaved 
similarly in the doorway of Room 5 for about 20 minutes. It  appears
from the record that one of these rooms is across the  hall from the
lunchroom, and the other diagonal from it.  Also, after Lara had read
her script to the voters in Room 7/9  and Room 5, the supervising
teacher in each room--Ana  Hernandez and Esperanza Reveles,
respectively--told the  voters to make sure they voted for the


II. Discussion


We will affirm the Board's decision to order collective  bargaining in
the face of objections to the Union's representa- tion if the decision
is reasonable and if the Board's underlying  findings of fact are
supported by substantial evidence on the  record as a whole. See E.N.
Bisso & Son v. NLRB, 84 F.3d  1443, 1445 (D.C. Cir. 1996). The Board
must determine  whether the challenged conduct tended to interfere
with  employees' free exercise of the franchise. See Amalgamated 
Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559,  1562 (D.C.
Cir. 1984). This is a fact-intensive determination  especially suited
for Board review. See id. ("important in  counseling deference to
Board decisions ... is the fact that 


the Board's particular expertise qualifies it--rather than the 
courts--to decide whether to call for a rerun election"). A  hearing
officer "is '[ ] far better situated than are we to draw  conclusions
about a matter as ephemeral as the emotional  climate of the
[workplace] at the time of the election.' " E.N.  Bisso & Son, 84 F.3d
at 1444 (citation omitted). As a general  matter, the burden is on the
party seeking to overturn a  Board-conducted representation election
to establish that the  election was not fairly conducted. See
Amalgamated Cloth- ing Workers of America v. NLRB, 424 F.2d 818, 827
(D.C.  Cir. 1970) (citing Southwestern Portland Cement Co. v.  NLRB,
407 F.2d 131, 134 (5th Cir. 1969)). A court will  overturn the Board's
decision to certify a bargaining unit only  where the activities of
union supporters created " 'an atmo- sphere of fear and coercion which
made a free and fair  election impossible.' " Amalgamated Clothing &
Textile  Workers Union, 736 F.2d at 1562 (quoting Daylight Grocery 
Co. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982)).


A.Racial Appeals During Election Campaign


FSA objected after the election that "[t]he union and its  supporters
and agents conducted a campaign and engaged in  tactics and conduct
designed to pit Latino workers against  African-American and other
non-Latino workers, thereby  basing their campaign on racial and
ethnic prejudice and  discrimination," and also that "[b]y ... appeals
to racial and  ethnic prejudice, the union unlawfully coerced,
intimidated  and interfered with the rights of eligible voters, and
de- stroyed the laboratory conditions necessary for a valid elec-
tion." J.A. at 44 (letter to NLRB, January 15, 1997). The  hearing
officer rejected this objection, we think reasonably.


We begin with the law that governs the use of race-based  messages in
union campaigns. The principle that the party  challenging the
election bears the burden of proving its  invalidity gives way if the
party that prevailed in the election  used racial propaganda in an
irrelevant and inflammatory  manner. If the prevailing party inflamed
racial prejudice to  garner pro- or anti-union support, then it must
prove that its  race-laden statements were truthful and germane to the


unionization effort. The Board has articulated the perimeters  of
racially charged but permissible campaign statements and  messages:


... [A] relevant campaign statement is [not] to be  condemned because
it may have racial overtones....  We would be less than realistic if
we did not recognize  that such statements, even when moderate and
truthful,  do in fact cater to racial prejudice. Yet we believe that 
they must be tolerated because they are true and be- cause they
pertain to a subject concerning which employ- ees are entitled to have
knowledge....


So long, therefore, as a party limits itself to truthfully  setting
forth another party's position on matters of racial  interest and does
not deliberately seek to overstress and  exacerbate racial feelings by
irrelevant, inflammatory  appeals, we shall not set aside an election
on this ground.  However, the burden will be on the party making use
of  a racial message to establish that it was truthful and  germane,
and where there is doubt as to whether the  total conduct of such
party is within the described  bounds, the doubt will be resolved
against him.


Sewell Manuf. Co., 138 N.L.R.B. 66, 71-72 (1962) (footnote  omitted)
(emphasis in original).


Applying Sewell, we look first to whether the Union delib- erately
drove a wedge between African-American and Latina  co-workers by
racial baiting--namely, by assailing the cen- ter's alleged language
policy in a way that was inflammatory  and irrelevant to the campaign
and by failing to ensure the  inclusion of African-Americans during
the membership drive.6 




__________

n 6 The parties do not dispute that the Union's alleged targeting of 
members based on race should be considered under the Sewell  analysis.
We note and adopt the Fifth Circuit's view on this issue:


That the Union's appeal in this case was predominately to [one  race]
does not in itself tell us either that race was the theme of  the
campaign, or that the Union's appeal was inflammatory.  Rather, we
think the racial one-sidedness of the Union's effort  should be given
the analytical effect in our review of intensify-


Our sister circuits have approached this task by examining  the tenor
and relevance of the union's race-based message as  well as the degree
to which the message formed the "core" of  the unionization drive.
See, e.g., M & M Supermarkets, Inc.  v. NLRB, 818 F.2d 1567 (11th Cir.
1987); NLRB v. Utell  Int'l, Inc., 750 F.2d 177 (2d Cir. 1984); NLRB
v. Silverman's  Men's Wear, Inc., 656 F.2d 53 (3d Cir. 1981); Peerless
of  America, Inc. v. NLRB, 576 F.2d 119 (7th Cir. 1978); NLRB  v.
Bancroft Manuf. Co., 516 F.2d 436 (5th Cir. 1975). The  more
outrageous and inflammatory the statement, the less  important the
question whether it formed the "core" of the  campaign, and the more
difficult it becomes for its sponsor to  prove its relevance and
truth. For example, in Silverman's  Men's Wear, the Third Circuit held
that the NLRB erred in  not holding a hearing based on evidence
proffered by the  employer that a union official called a company
official a  "stingy Jew" in front of 20 employees shortly before the 
election. 656 F.2d at 57-58. Although the statement stood  alone and
did not comprise a core campaign issue, the court  found it to be so
inflammatory that the "Union clearly could  not have met" its burden
of proving it was actually relevant.  Id. at 58; see also M & M
Supermarkets, 818 F.2d at 1573-74  (one employee's reference to
employers as "those damned  Jews" at a single meeting enough to
invalidate election); cf.  Utell Int'l, 750 F.2d at 179 ("the Sewell
test for truth and  relevancy ... is applicable only to inflammatory




__________

n ing the scrutiny with which we regard the incidents of the  Union's
"appeal to race hatred" cited by the Company.


NLRB v. Sumter Plywood Corp., 535 F.2d 917, 926 (5th Cir.  1976)
(footnote omitted).


7 The Fifth Circuit appears to have adopted the approach that if a 
racial message forms either the core of the campaign or is inflam-
matory, the burden shifts to the sponsor to prove that the state- ment
was truthful and relevant to the campaign. See Sumter  Plywood, supra
note 6, at 925 ("the reversal of burden of persua- sion occurs if the
racial remarks 'form the core or theme of the  campaign,' or if the
statements are racially inflammatory") (citation  omitted); Bancroft
Manuf., 516 F.2d at 442-43. Instead, we adopt 


It is permissible for a union to promulgate a message that  is wholly
relevant and accurate, even though it implicates  race. A "union's
claim that management discriminated on the  basis of race, sex and
national origin [is] not an inflammatory  racial appeal." State Bank
of India, 808 F.2d at 542; cf.  Utell Int'l, 750 F.2d at 178-79. The
hearing officer in this  case reasonably concluded that the Union's
and employees'  statements and actions regarding the language issue
amount- ed to no more than a claim of discrimination. Lourdes Perez' 
notation on the June 26 meeting form that Latina employees  had been
forbidden from speaking Spanish, the subsequent  skirmishes over
language issues between Latina employees  and their supervisors,
Latina employees' complaints to the  news media that their supervisors
harangued them to speak  English, and the similar comments made during
the radio  interview do not appear to be empty claims aimed at provok-
ing racial hatred. We reach this conclusion without deciding  whether
these acts were attributable to the Union. See  NLRB v. Herbert
Halperin Distributing Corp, 826 F.2d 287,  291 (4th Cir. 1987)
(question is whether the "amount of  association between the union and
the [employees] is signifi- cant enough to justify charging the union
with the conduct")  (quotation omitted). By so doing, we subject the
Union to a  standard more stringent than that other courts have
required  when examining the actions of third parties: Where the 
Union sponsored the race-based message, the election must  be set
aside if the message was inflammatory and inspired an  atmosphere of
fear and coercion. Cf. id. at 290 (election set  aside because of
third-party conduct only if election was held  in "a general
atmosphere of confusion, violence, and threats of  violence...")
(citation omitted). Even assuming arguendo  that the Union was
responsible for the turmoil over the  alleged existence of a language




__________

n the Second and Seventh Circuits' sliding scale approach, in which  we
assess together the degree of the message's relevance and  importance.
See Utell Int'l, 750 F.2d at 179; State Bank of India v.  NLRB, 808
F.2d 526, 541 (7th Cir. 1986). Otherwise, the promul- gation of a
"core" yet tempered and relevant race-based message  would
unnecessarily require further and redundant examination.


identify any statements or actions it made that were so  inflammatory
and irrelevant that the Board's contrary conclu- sion must be
overturned. The comments reported in the San  Francisco Examiner
article and the statements made in the  radio interview appear to us,
as to the Board, to be reason- ably accurate descriptions of the
situation as Garcia and the  Latina employees perceived it to be and
not calculated to  spark racial prejudice.8 Written records--namely,
from the  June 5 staff meeting in Room 2--and the testimony of Vivian 
Storey as to her encounters with Latina employees may tend  to support
FSA's contention that there was no official "En- glish-only" policy.
However, the hearing officer found that  employees' testimony to the
contrary was credible, and it is  not necessary to determine whether
there actually existed an  established English-only policy; the
relevant point is that the  Board could reasonably find, in this
conflicted record, that the  Latina employees' allegations that one
existed were not reck- less, capricious, or otherwise emblematic of an
intent to  invoke racial hatred. The subsequent conflict over the use
of  Spanish in the presence of non-Spanish speaking employees,  the
complaints by African-American workers about feeling  excluded among
Spanish speakers, and the racial bifurcation  of the Thanksgiving
dinner illustrate the racial tension at 




__________

n 8 FSA asserts that Garcia made inflammatory misrepresentations  to
the Latina employees by telling them that they had an "absolute 
right" to speak Spanish on the job. Petitioner's (Pet.) Br. at 23. 
Garcia himself said he told the employees that he thought the  policy,
if it existed, was "illegal or [wrong]," and Perez testified that 
Garcia told her that she had a "right" to speak Spanish. J.A. at 
737-38; 719-20. FSA argues that this statement was wrong in  light of
Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993) (holding  that, in
the circumstances presented in that case, an English-only  policy in
the workplace could not constitute a violation of Title VII),  but
this legal conclusion, alone, is not sufficient to render Garcia's 
statements prejudicial enough to invalidate the election. See Utell, 
750 F.2d at 179-80 (in case of alleged misrepresentation, Board is to 
consider, inter alia, other party's opportunity to correct the misrep-
resentations before invalidating election).


FSA but do not necessarily lead to the conclusion that the  Union was
igniting prejudice. The hearing officer did not  credit Jones'
testimony that the words "black monkey" were  actually uttered, J.A.
at 67, and there is no reason in the  record for us to disturb this
finding. See E.N. Bisso & Son,  84 F.3d at 1444-45 (hearing officer is
"uniquely well-placed to  draw conclusions about credibility")
(citation and quotation  omitted).


We stress that we do not endorse what appears from most  accounts to
have been a palpable disinterest by the Union in  non-Latino workers
and the resulting de facto segregation of  employees during the
organizing drive. See Sumter Ply- wood, 535 F.2d at 926 ("This
concentration on voters of one  race, to the relative exclusion of
voters of the other, is  disturbing and is not to be condoned"). Yet
even considering  this lamentable behavior towards African-American
workers,  we nonetheless agree with the Board that there was nothing 
in this tendentious campaign that made "impossible a sober,  informed
exercise of the franchise." Sewell Manuf., 138  N.L.R.B. at 71.


B.Supervisory Taint in the Election Process


FSA objected that the "petition and election process were  unlawfully
tainted by the inclusion of statutory supervisors,"  J.A. at 44. The
threshold question in a supervisory taint  claim is, of course,
whether the accused parties were in fact  "supervisors" under the
NLRA. See Westwood One Broad- casting Servs., Inc., 323 N.L.R.B. 1002
(1997), enforced 159  F.3d 1352 (3d Cir. 1998). This issue could have
been litigated  at FSA's behest during the representation stage of
these  proceedings. In fact, FSA initially challenged the presence of 
supervising teachers in the bargaining unit. See 29 U.S.C.  s 152(3)
(excluding from its definition of covered "employee  ... any
individual employed as a supervisor"). After a  hearing on the matter,
the Regional Director found that the  supervising teachers were not
statutory supervisors under  the NLRA, but on appeal the Board amended
the Regional  Director's decision to permit the teachers to vote
subject to  challenge. See J.A. at 101 n.3 (Decision and Certification


Representative, October 17, 1997). At the pre-election con- ference,
the Employer's representative explicitly withdrew  the challenge to
the eligibility of the supervising teachers.  See id.


In issuing its Certificate of Representative, the Board  denied FSA's
post-election objection based on supervisory  taint because it was "in
the nature of postelection challenges  which the Board has held that
it will not entertain." J.A. at  101. The Board has long refused to
hear challenges to votes  brought for the first time after an
election, as well as objec- tions that are merely reformulated
challenges to votes. See,  e.g., NLRB v. A.J. Tower Co., 329 U.S. 324,
332 (1946); Prior  Aviation Serv., Inc., 220 N.L.R.B. 460, 461 n.3
(1975) (listing  cases). The difference between objections and
challenges is  that "[o]bjections relate to the working of the
election mecha- nism and to the process of counting the ballots
accurately and  fairly. Challenges, on the other hand, concern the
eligibility  of prospective voters." A.J. Tower Co., 329 U.S. at 334.
The  ban on post-election challenges is traditionally employed  when
one party files a post-election "objection" that directly  challenges
the eligibility of a voter that was not raised  previously. See Prior
Aviation Serv., Inc., supra, at 460 (ban  on post-election challenges
applied to objection that alleged  employee "was an ineligible voter
by reason of his superviso- ry status"). Otherwise, as the Supreme
Court has observed,  losing parties would be able to lodge attacks on
elections ad  infinitum, "delay[ing] the finality and statutory effect
of the  election results." A.J. Tower Co., 329 U.S. at 332.


The Board in this case not unreasonably relied on the ban  on
post-election challenges to bar FSA's attempt to revisit the  issue of
the teachers' supervisory status after the election,  since FSA had
explicitly abandoned that same challenge  before the election. But it
is not clear that the ban will take  it the whole way, because, as
noted above, it has traditionally  been limited to challenges to votes
or the constituency of the  bargaining unit. However, the Board does
allude briefly to a  collateral estoppel argument which we find more
compelling,  that is, that a party such as FSA here cannot
specifically  withdraw its challenge to certain voters as supervisors


later allege that they are indeed supervisors whose partic- ipation in
the disputed election has "tainted" it. See J.A. at  101 n.3.


Thus, since FSA withdrew its challenge to the supervisory  status of
the teachers pre-election, it was subsequently es- topped from
litigating the issue post-election, and as the  Board found in its
Decision and Order in the instant section  8(a)(5) refusal-to-bargain
proceeding, see J.A. at 135, cannot  now reopen the record of the
representation proceeding to  attempt again to litigate this issue.
Board rules bar reopen- ing the record to litigate issues in related
unfair labor prac- tice proceedings that the Board could have reviewed
in the  representation proceeding. See 29 C.F.R. s 102.67(f).9 And 
FSA "fail[ed] to request review" of whether a supervising  teacher is
a statutory supervisor prior to the election, thereby  precluding it
from "relitigating, in any related subsequent  unfair labor practice
proceeding, any issue which was, or  could have been, raised in the
representation proceeding."  Id. We have, it is true, previously held
that a union is not  barred under this rule from relitigating
representation issues  when it brings unfair labor practice charges
under sections  8(a)(1) and 8(a)(3)10 of the NLRA because such charges




__________

n 9 Section 102.67(f) states: "The parties may, at any time, waive 
their right to request review. Failure to request review shall 
preclude such parties from relitigating, in any related subsequent 
unfair labor practice proceeding, any issue which was, or could have 
been, raised in the representation proceeding. Denial of a request 
for review shall constitute an affirmance of the regional director's 
action which shall also preclude relitigating any such issues in any 
related subsequent unfair labor practice proceeding."


10 These sections provide, in relevant part:


(a) Unfair labor practices by employer


It shall be an unfair labor practice for an employer--


(1) to interfere with, restrain, or coerce employees in the  exercise
of the rights guaranteed in section 157 of this title;


...


constitute a "related subsequent unfair labor practice pro- ceeding"
(emphasis added). See Thomas-Davis Med. Ctrs. v.  NLRB, 157 F.3d 909,
913 (D.C. Cir. 1998); Clark & Wilkins  Indus., Inc. v. NLRB, 887 F.2d
308, 316 (D.C. Cir. 1989).  Similarly, an employer in a subsequent
section 8(a)(1) or  8(a)(3) proceeding is not barred from raising a
defense that  was or could have been litigated in the representation
pro- ceeding. See Intermountain Rural Elec. Ass'n v. NLRB, 732  F.2d
754, 760-61 (10th Cir. 1984)) (permitting confidential  employee
defense). By contrast, a section 8(a)(5) case based  on an employer's
technical refusal to bargain in order to  obtain review of the
representation proceeding is necessarily  a "related subsequent unfair
labor practice proceeding." See  Amalgamated Clothing Workers of
America, AFL-CIO v.  NLRB, 365 F.2d 898, 903 (D.C. Cir. 1966) (a
company's  appeal to the court in a refusal to bargain proceeding must
be  "based on the record made at the earlier representation 
hearing"); see also NLRB v. Hydro Conduit Corp., 813 F.2d  1002, 1005
(9th Cir. 1987); Intermountain Rural Elec., 732  F.2d at 760-61; Rock
Hill Tel. Co. v. NLRB, 605 F.2d 139,  143 (4th Cir. 1979); Heights
Funeral Home, Inc. v. NLRB,  385 F.2d 879, 881-82 (5th Cir. 1967).
Accord Hyatt Hotels,  Inc., 256 N.L.R.B. 1099 (1981) (in refusal to
bargain proceed- ing, no relitigation of supervisory status of
pro-union employ- ee who was alleged by employer to have interfered
with the  election). Since the record shows that FSA waived its right 
to request review of the supervisory status of the supervising 
teachers during the representation proceeding, relitigation of  the


C.Unlawful Electioneering


Another of FSA's objections was that "Union supporters  and agents
engaged in unlawful electioneering, coercion, in- timidation and
interference in the vicinity of the polling place  during the
election." J.A. at 45. We believe that the Board 




__________

n (3) by discrimination in regard to hire or tenure of employment  or
any term or condition of employment to encourage or  discourage
membership in any labor organization....


29 U.S.C. s 158(a).


reasonably concluded that the electioneering at Bryant Street  on the
day of the election was within the permissible range.


The Board has repeatedly declined to impose a zero- tolerance rule on
voting day electioneering. See Overnite  Transp. Co. v. NLRB, 140 F.3d
259, 269 (D.C. Cir. 1998)  (citing Boston Insulated Wire & Cable Co.,
259 N.L.R.B.  1118, 1118 (1982), enforced, 703 F.2d 876 (5th Cir.
1983)); see  also NLRB v. Duriron Co., 978 F.2d 254, 256 (6th Cir.
1992)  (" 'Laboratory conditions' are not always achieved in practice,
 and elections are not automatically voided whenever they fall  short
of perfection."). "Instead, the Board considers a range  of factors
and circumstances in determining whether election- eering activity is
sufficient to justify overturning an election."  Overnite Transp., 140
F.3d at 269. The Board has considera- ble discretion to determine
whether the circumstances of an  election have enabled employees to
exercise free choice in  casting their ballots. Id. When "prolonged
conversations  between representatives of any party to the election
and  voters waiting to cast ballots" take place, Milchem, Inc., 170 
N.L.R.B. 362, 362 (1968), the Board will order a new election.  Cf.
NLRB v. Del Rey Tortilleria, Inc., 823 F.2d 1135 (7th Cir.  1987)
(Milchem does not require new election when union  representative
spoke with employees lined up on sidewalk  before polls open).


But where, as here, the electioneering did not involve union  agents,
the Board will overturn the election "only if the  electioneering
'substantially impaired the exercise of free  choice.' " Overnite
Transp., 140 F.3d at 270 (citing Del Rey  Tortilleria, 823 F.3d at
1140 (citation omitted)).


The Board generally considers the nature and extent of  the
electioneering, whether it happened within a desig- nated "no
electioneering" area, whether it was contrary  to the instructions of
the Board's election agent, whether  a party to the election objected
to it, and whether a party  to the election engaged in it.


Id. at 270. In this case, the Board agent did not designate a 
"no-electioneering zone" outside of the lunchroom. FSA  urges us to
consider Pepsi-Cola Bottling Co. of Petersburg, 


Inc., 291 N.L.R.B. 578 (1988), in which the Board found that  unlawful
electioneering had occurred within a prima facie  "no-electioneering"
zone even though none had been estab- lished before the election. In
Pepsi-Cola Bottling, however,  the Board determined that this "no
electioneering" zone  existed where employees waited in line to vote.
By contrast,  as the Board correctly found in the instant case,
employees  did not wait outside the lunchroom to vote. There was thus 
no area where employees stood as a captive audience, waiting  to cast
their ballots, that should have been considered off- limits as a
matter of law. Applying the other factors, the  employees did not act
contrary to any of the instructions of a  Board agent, see Star
Expansion Indus. Corp., 170 N.L.R.B.  364 (1968) (agent of union asked
to leave no-electioneering  zone three times). Nor does FSA contend
that it objected to  the activities of the Union's supporters at the
time employees  entered or exited the voting place.


Finally, the general "nature and extent" of the electioneer- ing in
this case did not substantially impair employees' ability  to exercise
free will at the ballot box. The Board reasonably  found that the
combined effect of the relatively brief inter- ludes of electioneering
by teachers as voters exited and  entered classrooms 5 and 7/9, as
well as Martinez' occasional  comments as he sat outside the lunchroom
waiting to vote,  was not coercive. Compare Claussen Baking Co., 134 
N.L.R.B. 111 (1961) (prolonged antiunion discussion between  a leadman
and several new employees within 15 feet of the  poll in
no-electioneering zone, with a plant manager standing  nearby, and
which was stopped only by intervention of the  Board agent, required
that election be set aside), with Duri- ron, 978 F.2d at 258 (no new
election where pro-union em- ployees gathered in hallways for an hour
during voting period  within 15 to 20 feet of polling place and
discussed pro-union  position with employees in their work areas);
Boston Insulat- ed Wire & Cable Sys. v. NLRB, 703 F.2d at 880-81 (no
new  election where union agents leafletted outside doors as em-
ployees entered building and proceeded down corridor to  vote); and
Southeastern Mills, Inc., 227 N.L.R.B. 57 (1976)  (no new election
where pro-union employee sat for 20 minutes 


near employees waiting in line to vote, loudly predicted their  votes
and stated that he hoped they had voted right). That  the classrooms
were located just across the hall from the  voting area is
acknowledgedly troubling, because it allowed at  least some voters to
be subjected to pro-union campaigning  up to the last moments before
they cast their ballots. Simi- larly, the Union supporters' inquiries
to voters leaving the  polling place as to how they cast their ballots
is not paradig- matic of sterile "laboratory conditions." However,
ultimately,  we defer to the Board's reasoned conclusion that neither
of  these occurrences tend to intimidate voters in light of the fact 
that employees were not standing in line to vote as a captive 
audience to the union supporters' comments, there was no "no 
electioneering" zone, and further, that no evidence was ad- duced that
voters were forced to contend with a constant  barrage, as opposed to
an intermittent sprinkling, of pro- union advocacy.


D.Union Agents' Invasion of the Workplace


FSA also alleged that "Union agents repeatedly invaded  the employer's
workplace during working times to engage in  electioneering with
employees, deliberately creating hostile  confrontations with
management and refusing to leave when  lawfully asked to do [sic]."
J.A. at 45. This objection must  also fail. When a party to an
election is alleged to have  engaged in conduct requiring the
overturning of the election  results, the Board, and we, employ a
standard similar to the  one used with allegations of improper
electioneering. "[T]he  Board judges the conduct by assessing whether
it 'reasonably  tend[ed] to interfere with the employees' free and
uncoerced  choice in the election.' " NLRB v. Earle Industries, Inc.,
999  F.2d 1268, 1272 (8th Cir. 1993) (quoting Baja's Place, Inc.,  268
N.L.R.B. 868, 868 (1984)). The factors the Board consid- ers include:
the number of incidents of misconduct; the  severity of the incidents
and whether they were likely to  cause fear among the employees in the
bargaining unit; and  the proximity of the misconduct to the election
date. See id.;  see also Avis Rent-A-Car Sys., Inc., 280 N.L.R.B. 580


Here, as the Board correctly found, Mitchell and Garcia  made several
visits to the Bryant Street site but only two  alleged "incidents" of
misconduct occurred. Site Supervisor  Storey's brief run-in with
Mitchell could hardly be described  as likely to induce fear among
employees; it was not confron- tational and there is no evidence that
Mitchell was even asked  to leave. Although there were witnesses to
Storey's initial  encounter with Garcia, that encounter consisted only
of Gar- cia's telling Mitchell that he had a right to be on the
premis- es. The evidence does not reflect that there were any 
witnesses to the subsequent, slightly more rancorous encoun- ter in
the office. Even so, whatever employee angst may  have resulted from
these two encounters surely dissipated by  election day--one incident
occurred five months and the other  one month before the election. Cf.
Wilkinson Mfg. Co. v.  NLRB, 456 F.2d 298, 303-04 (8th Cir. 1972) (two
month  interval before election not enough if the incident had been a 
constant topic of discussion and concern); Station Operators,  307
N.L.R.B. 263 (1992) (fact that incident occurred two  weeks before
election supported finding that pre-election  misconduct did not taint
election). This case is thus distin- guishable from Phillips Chrysler
Plymouth, Inc., 304  N.L.R.B. 16 (1991), where union agents engaged in
a shouting  match with the company's president in front of all 10 mem-
bers of the bargaining unit an hour before the polls opened  and
refused to leave even after the company called the police.  These two
run-ins did not rise to the level of interfering with  employees' free
and uncoerced choice in the election.


E.Compliance with the LMRDA Reporting Requirement


Finally, FSA objected that the Union is not a bona fide  labor
organization under the NLRA for purposes of repre- senting employees
because it "unlawfully failed and refused to  file any of the
financial and other reports required of all  private sector unions."
J.A. at 44. FSA asserted that "the  union's refusal to file was a
violation of employees' Section 7  rights to know about union finances
and other matters in  order to make an informed election choice...."
Id. The  LMRDA requires labor unions to file certain financial disclo-
sure reports. See 29 U.S.C. ss 431(a), 431(b), 432 & 435; see 


generally Brennan v. Local Union 10, 527 F.2d 588 (9th Cir.  1975).
Section 2(5) of the NLRA, which makes no reference  to these reporting
requirements, merely defines a "labor  organization" as including "any
organization of any kind ...  in which employees participate and which
exists for the  purpose, in whole or in part, of dealing with
employers  concerning grievances, labor disputes, wages, rates of pay,
 hours of employment, or conditions of work." 29 U.S.C.  s 152(5). In
the course of pre-election proceedings in the  instant case, the
Regional Director concluded that compliance  with the LMRDA was not
relevant to the union's status as a  labor organization under the
NLRA. See J.A. at 21-22. The  hearing officer, and the Board in turn,
adopted this conclu- sion. Desert Palace, Inc., 194 N.L.R.B. 818, 818
n.5 (1972)  ("The NLRB is not entrusted with the administration of the
 [LMRDA]. An organization's possible failure to comply with  that
statute should be litigated in the appropriate forum  under that act,
and not by the indirect and potential duplica- tive means of our
consideration...."); see also S.H. Kress &  Co., 212 N.L.R.B. 132
(1974). In a case in which a company  argued that a labor union should
not be entitled to an order  directing an election because of, inter
alia, numerous internal  problems and possible mob influence, the


The allegations made by [the company] ... concern  improper or corrupt
practices in the administration of  internal union affairs. In ... the
[LMRDA], Congress  expressly dealt with such matters. It is
particularly signifi- cant that the remedies provided in the LMRDA
were given  to individual employees directly, and to the public
through  the intervention of [other departments]. The theory un-
derlying this type of remedial legislation is not to "illegal- ize"
the organization itself, but to afford protection to all  parties
concerned by creating specific Federal rights and  remedies whereby
the activities of the organization and its  officers and agents are
regulated and subjected to judicial  review in vindication of those
rights. Had Congress de- sired to strike directly at the organization
itself, Congress  would have said so.


Alto Plastics Manuf. Corp., 136 N.L.R.B. 850, 853 (1962). In  oral
argument, FSA attempted to distinguish Alto Plastics  from this case
because the company in Alto Plastics had  sought directly to invoke
the Board's jurisdiction to hear a  complaint brought under the LMRDA,
whereas here, FSA is  not asking the Board to adjudicate the LMRDA
issue. How- ever, this analysis ignores the basic point of Alto Glass,
which  is applicable here: the LMRDA is simply "not relevant or 
material to the issue of [the Union's] status as a labor 
organization," at least in the circumstances of this case. Id.  at


Conclusion


For the reasons stated above, we deny FSA's petition for  review and
grant the Board's petition for enforcement of its  Decision and


So ordered.




__________

n 11 In oral argument and in the Reply brief, counsel for FSA 
contended that the company's argument is not premised on compli- ance
with the NLRA's definition of a "labor organization," but  rather on
the theory that a violation of employees' section 7 rights  under the
NLRA is itself a form of election-related misconduct.  However, FSA
has failed to point to any evidence in the record that  would show the
alleged section 7 violation "reasonably tend[ed] to  interfere with
the employees' free and uncoerced choice in the  election." Baja's
Place, 268 N.L.R.B. at 868. We therefore reject  this theory as