678 F.

2d 905
110 L.R.R.M. (BNA) 2915, 94 Lab.Cas. P 13,609

DAYLIGHT GROCERY COMPANY, INC., Petitioner, CrossRespondent,

v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Cross-Petitioner.
No. 81-5679.

United States Court of Appeals,

Eleventh Circuit.
June 14, 1982.

William H. Andrews, Coffman, Coleman, Henley & Andrews, Mary W.

Jarrett, Jacksonville, Fla., for petitioner cross-respondent.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington,
D. C., Penny Pilzer, Arlington, Va., for respondent cross-petitioner.
Petition for review and cross application for enforcement of an order of
the National Labor Relations Board.
Before INGRAHAM * , HATCHETT and ANDERSON, Circuit Judges.
HATCHETT, Circuit Judge:

The primary question in this case is whether the National Labor Relations
Board correctly reacted to objections filed by an employer to a unit
determination and a union certification election. Finding no abuse of discretion
by the Board, we enforce its order.

The petitioner, Daylight Grocery Company, Inc. (Company), filed its petition
seeking review of the order of the National Labor Relations Board (Board),
ordering the Company to bargain with Retail Store Employees Union Local
441, affiliated with United Food & Commercial Workers International Union
AFL-CIO-CLC (Union). The Board filed a cross application seeking

enforcement of its order.1

FACTS
3

Daylight Grocery Company, Inc., is a Florida Corporation engaged in the retail

food business. During the period in dispute, its supermarket division operated
four retail stores in Duval County, Florida. On April 3, 1980, the Union filed a
certification petition seeking to represent certain employees at all four stores.
The Company refused to recognize the Union.

On April 22, 1980, a hearing was held before the Board's hearing officer. The
Union sought a bargaining unit which would include all full-time and regular
part-time employees, including head cashiers, produce managers, stock
managers, and baggers. The bargaining unit would exclude meat department
employees, salesmen, security guards, store managers, and assistant managers.
The Company argued for a unit which would include full-time and regular parttime clerks and cashiers; and one which would exclude all store managers, head
cashiers, produce managers, stock managers, meat market department
employees, baggers, salesmen, security guards, and supervisors.

The unit sought by the Union would represent 107 employees. The unit
proposed by the Company would represent about seventy employees. On May
11, 1980, the Board's regional director issued his decision; the unit would be
substantially as the Union had requested. It would include baggers, mostly high
school students who worked part-time on an as-needed basis, but would
exclude produce department managers, stock managers, guards, and
supervisors. Whether head cashiers were to be in the unit was left undecided.
Whether they were supervisors would be determined later.

A secret ballot certification election was held on June 6, 1980. Of ninety-four

employees who casted ballots, forty-four voted for representation, forty-three
voted against representation, and seven ballots were challenged. After the
challenged ballots were counted, forty-seven voted for representation, and
forty-six voted against representation.

The Company raised objections to the unit determination and the election. The
regional director rejected the Company's objections. The Company refused to
negotiate. The Union brought unfair labor practice charges, and the Board
ordered the employer to bargain with the Union.2

We must decide whether (1) the Board properly determined to include baggers

in the bargaining unit; (2) whether threats to employees by a customer violated

the laboratory conditions, and require a new certification election; (3) whether
a ballot challenged by the Company was sufficiently clear to manifest voter
intent; and (4) whether procedural objections which accused the Board of abuse
of discretion and violation of due process are significant enough to require
reversal.
I. BAGGERS
9

The Company contends that the Board violated its own unit determination
standards by including casual student employees in a bargaining unit which
includes full-time produce clerks, stock clerks, and cashiers. The Company
relies on the four-part test adopted by the Board in Shady Oaks, 229 NLRB No.
5 (1977). The Company insists the baggers failed to meet the Shady Oaks
conditions. Shady Oaks' four factors for consideration are (1) regularity and
continuity of employment; (2) tenure of employment; (3) similarity of work
duties; and (4) similarity of wages, benefits, and other working conditions. 229
NLRB No. 5 at 54-55.

10

The Board contends that the baggers are properly included in the unit because
the baggers share a community of interest with other employees and work in
close contact with the other employees on a daily basis.3 The Board also relies
upon its considerable discretion in unit determination. NLRB v. Southern Metal
Service, 606 F.2d 512, 514 (5th Cir. 1979); NLRB v. H. M. Patterson & Sons,
636 F.2d 1014, 1017 (5th Cir. 1981).4

11

The Board denies it has violated the teachings of Shady Oaks, and maintains
that Shady Oaks was significantly modified by Systems Auto Park, 248 NLRB
No. 144 (1980). Further, the Board denies any hard and fast standards in this
area. Instead, it maintains it has applied a well articulated series of themes and
considerations to be used to arrive at unit determination.

12

In reviewing these conflicting contentions, we must remember that this court's

standard of review is "exceedingly narrow" when it reviews a challenge to a
unit determination by the Board. NLRB v. Southern Metal Services, 606 F.2d
512, 514 (5th Cir. 1979). The Board's decision is vested with a large measure of
discretion and is not to be disturbed unless the Board's discretion has been
exercised "in an arbitrary or capricious manner." Spartans Industries, Inc. v.
NLRB, 406 F.2d 1002, 1005 (5th Cir. 1969); NLRB v. J. C. Penney Co., 559
F.2d 373, 375 (5th Cir. 1977).

13

The well established law of this circuit provides that the Board is not required

13

The well established law of this circuit provides that the Board is not required
to select the most appropriate bargaining unit for employees; by statute, it is
only required to select a unit appropriate under the circumstances. 606 F.2d at
514, see J. C. Penney, 559 F.2d at 375.

14

Our review reveals that the Board selected an appropriate unit for the baggers
under the circumstances. The Board determined that the baggers work is
performed at the checkout counter, and is closely integrated with that of
cashiers, who check out groceries. Further, they share the same direct
supervision from the store managers and assistant managers. As a matter of
practice, other unionized stores in the area are organized in units including
baggers with clerks and cashiers. The burden was on the Company to show that
the Board's determination was lacking substantial evidentiary support, arbitrary,
capricious, or an abuse of discretion. Southern Metal Services, 606 F.2d at 514.
The Company has failed to meet its burden.II. THREATS

15

The day before the election, a "stranger," later identified as a customer named
Kitchen-approached several employees in the store and said: "You had better
vote for the Union," or "You had better vote yes." The Company argues that
the comments made by this customer to several employees the day before the
election created an atmosphere of fear and coercion which made a free and fair
election impossible. The Company relies on NLRB v. Tampa Crown
Distributors, 272 F.2d 470 (5th Cir. 1959), for the proposition that anonymous
threats which create a climate of fear and coercion for the voters require a new
election. Tampa Crown articulated a three-step analysis to determine an
"atmosphere of fear": (1) Evidence establishes fear in the mind of voters; (2)
that fear affected their votes; and (3) that had it not been for the fear, the results
of the election might have been different. 272 F.2d at 473.

16

In its evaluation, the Board found that the remarks did not rise to the level of
threats. Likewise, the Board argues that the remarks did not create an
atmosphere of coercion and fear requiring a reversal.

17

The Board has a wide degree of discretion in conducting elections and

resolving representation matters. NLRB v. A. J. Tower Co., 329 U.S. 324, 33031, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Osborne Transportation,
Inc., 589 F.2d 1275, 1279 (5th Cir. 1979). In a challenge to a Board decision in
this area, the burden is on the objecting party to prove by specific evidence that
the election results did not accurately reflect the unimpeded choice of the
employees. NLRB v. White Knight Mfg., 474 F.2d 1064, 1067 (5th Cir. 1973);
NLRB v. Golden Age Beverage Co., 415 F.2d 26, 29 (5th Cir. 1969). Our
review of the record indicates that the Company did not meet this burden.

Anonymous threats must be carefully weighed. 415 F.2d at 30. Only when such
threats result in creating an atmosphere among voting employees of confusion
and fear of reprisal should the election be overturned. 415 F.2d at 30. To do
otherwise would merely encourage anonymously created incidents. NLRB v.
Monroe Auto Equipment, 470 F.2d 1329, 1332 (5th Cir. 1972).
18

It was determined that the "stranger" was neither an agent of the Union nor the
Company. Kitchen was merely a customer who advocated a pro-union position.
The Board determined that in the absence of specific threats, it could not
conclude that the electoral process had been prejudiced by a coercive
atmosphere. The Company has not met its burden demonstrating this conclusion
was error.5

III. BALLOT CHALLENGE

19

The Company next challenges a ballot which contain pencil marks in both the
"Yes" and "No" boxes. The Company argues that the ballot should be
disqualified because it fails to evidence the clear intent of the voter.

20

The Board, on the other hand, contends that the ballot manifests clear intent. A
strong check mark is found in the "Yes" box, while only a small portion of a
line, an obvious evidence of erasure, is found in the "No" box.

21

On review, our task is to determine whether the voter's intent has been clearly
manifested. NLRB v. Sauk Valley Manufacturing Co., 486 F.2d 1127, 1133
(9th Cir. 1973). After examining the ballot, it is apparent that the voter intended
to vote for the Union. The check mark in the "Yes" box is clear and distinct,
while the partial line in the "No" box is the obvious result of an attempt at
erasure. We keep in mind that the statutory policy favors inclusion of ballots
where intent can be determined. Sauk, 486 F.2d at 1136. Because intent is clear,
this ballot must be included in the tally.

IV. PROCEDURAL OBJECTIONS

22

The Company contends that the Board violated its own procedures in several
ways which violated both the statutory and due process interest of the
Company. The Company asserts that (1) the hearing officer violated his duty in
failing to consider the Company's request for an extension; (2) the regional
director violated the Company's rights when he granted a three day extension
instead of the fourteen day extension requested by the Company; (3) the Board
violated the Company's rights by giving inadequate notice (thirteen days) of the
election date, and in failing to reschedule the election; and (4) the Board

violated the Company's rights when it denied the Company a hearing on its
post election objections.
23

The Board contends that the Company's procedural objections are without
merit because (1) the award of an extension is discretionary and neither the
hearing officer nor the Board abused his discretion; (2) the Company could not
show that it had been harmed by the discretionary award of the three day
extension it was granted by the regional director; (3) the Company received
proper notice where it was within the time frame set by the rule, and the
possible election date was prominent in the record; and (4) the Board did not
have to grant the hearing because a sufficient record was not set out by the
Company, the Company did not set out its objections before the Board and,
thus may not raise them on appeal.

24

Our review of the records supports the Board on all procedural issues. The
Company's complaints are without merit.

(a) The Hearing Officer

25
26

Even assuming that the hearing officer had a duty to exercise discretion in
granting or denying an extension, the Company may not complain when in fact
a three day extension of the briefing date was granted by the regional director,
and the Company can make no positive showing of prejudice. See NLRB v. O.
K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961). Under O. K. Van, questions
preliminary to the establishment of a bargaining relationship are to be
"expeditiously resolved, with litigious questions reserved for the proceedings
for review or enforcement of Board orders." 297 F.2d at 76.

(b) Regional Director

27
28

The Company presented no case law in support of its argument that the regional
director was required to grant a fourteen day extension. The language of the
statute ("may grant") is clearly permissive. Thus, the award is discretionary and
the director may only be reversed on a showing of abuse of discretion. The
Company has failed to show an abuse of discretion.

(c) Notice of Election

29
30

The Board has wide discretion in scheduling elections. Beck Corp. v. NLRB,
590 F.2d 290, 293 (9th Cir. 1978). The Board may only be reversed on a
showing of abuse of discretion which denies an employee the opportunity to
vote. See NLRB v. Sauk Mfg., 486 F.2d at 1132. The director's direction of

election (issued May 12) notified the Company that an election would be held
within thirty days, and it was held on the twenty-fifth day (June 6, 1980). Even
assuming that its actual notice was limited to thirteen days, the Company has
failed to demonstrate prejudice. Given the compactness of the Company's
operation and the small number of employees, there was adequate time to both
campaign and consider the issues.(d) A Hearing on the Full Record
31

The Company next contends that the Board erred in ruling on a record which
did not contain the full record relied upon by the regional director. Three
affidavits were not sent to the Board. The Company relies on NLRB v. Klingler
Electric Corp., 656 F.2d 76 (5th Cir. 1981). While the Board relies on the
distinction between a report under 29 C.F.R. 102.67(d) or a decision under 29
C.F.R. 102.69, we, however, do not have to reach the question of first
impression offered by the Board, i.e., whether to distinguish between 29 C.F.R.
102.67(d) and 29 C.F.R. 102.69. Ordinarily such affidavits are confidential,
but in this case the Company was aware of the contents of the affidavits.

32

Whatever error may have occurred in this process is harmless as a result of our
holding that the affidavits did not set out a prima facie case. This conclusion is
mandated by NLRB v. Klingler Electric Corp., 656 F.2d 76, 79 (5th Cir. 1981),
where affidavits which were relied upon by the regional director, but not
forwarded to the Board were made available to this court upon review. After
examination of the affidavits, the court concluded: "We find that none of them
contained any information that would add weight to Klingler's case or stand the
slightest chance of affecting the Board's action." 656 F.2d at 85. We do not see
the case before us as a true Klingler case. In Klingler, the missing documents
went to the issue of unit determination. In the absence of the affidavits, the
record was devoid of any evidence on most material issues. 656 F.2d at 82.
Under that statement of facts, the Board would have been unable to support its
burden of showing substantial competent evidence on the record as a whole.
Because the exclusion of such documents from the record would have presented
a serious due process problem, we held that they were "documentary evidence"
within the meaning of 29 C.F.R. 102.69(g). 656 F.2d at 84. Accord NLRB v.
North Electric, 644 F.2d 580 (6th Cir. 1981). This holding, however, did not
require new proceedings before the Board where this court was free to examine
the documents on appeal and determined (1) the proper evidentiary base was
present, and (2) nothing in the documents would have changed the Board's
position if it had reviewed them. Klingler, 656 F.2d at 85.

33

In any event, a Klingler review establishes that the documents added no weight
to Daylight's case. As previously held in this decision, those documents did not
present a prima facie case that the elections had been improperly influenced.

Therefore, the challenge on this procedural ground is rejected.

CONCLUSION
34

Because the Company has failed to meet its burden and demonstrate that (1) the
Board erred in including baggers in the unit; (2) threats violated the laboratory
conditions required for the election; (3) the challenged ballot was insufficiently
clear to demonstrate intent; and (4) various procedures adopted by the Board
amounted to an abuse of discretion, the Board's order should be enforced.

35

ENFORCED.

Honorable Joe M. Ingraham, U. S. Circuit Judge for the Fifth Circuit, sitting by
designation

The Board has statutory authority to determine bargaining units. Title 29 U.S.C.
159(b)

The Board determined the employer violated section 8(a)(5) and (1) of the
National Labor Act, 29 U.S.C. 158(a)(1) and (5), by refusing to bargain with
a certified union. The refusal to bargain is a procedural step to gain judicial
review

For a thorough discussion and analysis of the various tests evolved and applied
by the NLRB to determine community of interest see Comment, Date Certain
Test is Preferable Standard for Enfranchising Temporary Employees for Union
Certification Elections-NLRB v. New England Lithographic Co., 589 F.2d 29
(1st Cir. 1978), 14 Suffolk U.L.Rev. 367 (1980)

The Eleventh Circuit has adopted the case law of the former Fifth Circuit as its
governing body of precedent. This precedent is binding unless and until
overruled or modified by this court en banc. Bonner v. Prichard, 661 F.2d 1206,
1209-11 (11th Cir. 1981) (en banc)

The Company's affidavits failed to set out a prima facie showing to the extent
that they failed to demonstrate that fear affected the voters (step 2), and that but
for that fear, the election results might have been different (step 3). The
employer must show the vote was influenced by the threats to establish a prima
facie showing
In NLRB v. Southern Metal, 606 F.2d at 515, "the employer submitted an
employee's affidavit stating another employee had told him the day before the

election that 'if you didn't vote for the Union and the Union loses' you would be
a very unpopular fellow around here, so you better watch out ...."
The regional director overruled the employer's objection without a hearing,
finding that it presented no "substantial and material factual issues" as to the
effect of the conduct on the result of the election. It is not enough that threats
be made, the affidavits must show that the threat had an impact on voting.