IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60861

CON-WAY FREIGHT, INCORPORATED, 

 Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD, 

 Respondent Cross-Petitioner

On Petition for Review and Cross-Application 

for Enforcement of an Order of the 

National Labor Relations Board

Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit 

Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Con-way Freight, LLC (“Con-way”) petitions for review of a union 

election at its Laredo, Texas facility, and for review of a National Labor 

Relations Board (“Board”) Decision and Order finding that Con-way engaged 

in unfair labor practices. The Board cross-applies for enforcement of its Order. 

Con-way’s petition is DENIED; the Board’s cross-application is GRANTED.

United States Court of Appeals

Fifth Circuit

FILED

September 27, 2016

Lyle W. Cayce

Clerk

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I

Con-way provides freight services across North America and employs 

over 100 drivers and dockworkers at its Laredo, Texas facility. In 2014, a group 

of Con-way employees in Laredo contacted the International Brotherhood of 

Teamsters, Local 657 (“Union”) regarding possible unionization. Two 

representatives of the Union met with a group of Con-way employees and 

explained that, once a sufficient number of employees signed representation

cards, the Union could petition the Board to conduct an election for purposes 

of collective bargaining representation. The Union representatives visited with 

Con-way employees multiple times, collecting signatures. Several employees 

also volunteered to provide additional signature and membership cards to 

coworkers and to campaign in support of the Union. 

Once enough signatures were collected, the Union petitioned the Board

for an election. An election was scheduled for the following month. Leading up 

to the election, a small number of employees reported feeling harassed and 

intimidated by pro-Union coworkers, with some employees testifying that they 

were threatened with termination if they did not support unionization. In 

addition, several anti-Union employees’ vehicles were vandalized in the weeks 

prior to the election, though no culprits were ever identified. 

Before the election, the Board agent held a pre-election conference with 

the parties. Con-way was represented by an experienced labor attorney, its 

own assistant general counsel, and its selected observer. The Union was 

represented by one of the representatives who had previously met with Conway employees and its selected observer. The Board agent arranged to hold the 

election in the training room at the Con-way facility. Neither Con-way nor the 

Union objected to the Board agent’s arrangement of the voting area at the preelection conference. 

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After the pre-election conference concluded, the voting began. Employees 

entered the training room one at a time and filled out their ballots behind a 

shielded voting lectern. The Board agent and each party’s observer were 

present in the polling place. The election was close, but the Union won: 55 yea 

votes against 49 nays, with an additional four challenged ballots that went 

uncounted. 

Following the election, Con-way filed a number of objections and the 

Board ordered a hearing. The hearing officer recommended overruling all of 

Con-way’s objections. The Board adopted the officer’s recommendation, and

certified the Union as the employees’ collective bargaining representative. 

Con-way refused to negotiate with the Union following the election, leading the 

Union to file an unfair labor practice charge with the Board. The Board

eventually issued a final Decision and Order, finding that Con-way engaged in 

an unfair labor practice when it failed to bargain with the Union. Con-way 

petitioned this court for review of the election and the Board’s subsequent 

Order. The Board cross-applied for enforcement. 

II

“Congress has given the Board wide discretion in the conduct and 

supervision of representation elections, and the Board’s decision warrants 

considerable respect from reviewing courts.” NLRB v. Hood Furniture Mfg. Co., 

941 F.2d 325, 328 (5th Cir. 1991). “Our review is limited to determining 

whether the Board has reasonably exercised its discretion, and if the Board’s 

decision is reasonable and based upon substantial evidence in the record 

considered as a whole,” the Board’s decision will be upheld. Id. “There is a 

strong presumption that ballots cast under specific [Board] procedural 

safeguards reflect the true desires of the employees.” Id. “A party seeking to 

overturn a Board-supervised election bears a heavy burden. Its allegations of 

misconduct must be supported by specific evidence of specific events from or 

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about specific people. Further, an election may be set aside only if the 

objectionable activity, when considered as a whole . . . influence[d] the outcome 

of the election.” Boston Insulated Wire & Cable Sys. v. NLRB, 703 F.2d 876, 

880 (5th Cir. 1983) (internal quotations and citations omitted). 

III

Con-way raises five separate arguments for setting aside the results of 

the election: (1) the Board agent failed to ensure the secrecy and privacy of the 

election; (2) the Board erroneously held that a group of pro-Union employees 

were not agents of the Union; (3) Union agents engaged in objectionable 

electioneering; (4) the election was held in an atmosphere of fear and 

intimidation sufficient to taint the results; and (5) we should invalidate the 

election results because the closeness of the election, combined with the 

evidence supporting the four other grounds, is sufficient to taint the results.

We address each of these in turn.

A.

Con-way argues that the Board agent compromised the integrity of the 

election by failing to use a proper voting booth, failing to correctly assemble 

the cardboard shield used in place of a voting booth, and by not securing the 

secrecy of the polling area. Ballots were cast in a three-sided cubicle-shaped 

device specifically designed for elections, called the “Poll Master II.” The 

training room that was used as the polling place shared a door with the 

breakroom, where voters entered and exited. Persons in the breakroom could 

see the front of the booth when the door opened, but they could not see what a 

voter was doing inside the booth. The Poll Master II consists of a three-sided

cardboard shield for privacy, a plastic base into which the cardboard shield is 

inserted, and aluminum height-adjustable legs onto which the shield and base 

may be placed. The Board agent inserted the shield into the base, and then 

placed the shield and base on top of a table in the polling place rather than on 

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the aluminum legs. Con-way maintains that because the table was slightly 

lower than the legs would have been, observers were able to see more of the 

voters’ upper torso and arms while voting. Con-way argues that this increased 

exposure to prying eyes may have intimidated voters and caused them to

change their vote. We disagree. Observers were simply not able to see how 

voters filled out their ballots.1

B.

Con-way contends that a group of pro-Union employees who campaigned 

for unionization constituted an in-house “Union Committee,” and were 

therefore the Union’s agents. We apply common law agency principles in the 

labor law context. See Poly-Am., Inc. v. NLRB, 260 F.3d 465, 480 (5th Cir. 

2001). “One of the primary indicia of agency is the apparent authority of the 

employee to act on behalf of the principal.” Id. “The test of agency in the union 

election context is stringent, involving a demonstration that the union placed 

the employee in a position where he appears to act as its representative.” Tuf–

Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir. 1983) (emphasis in original). 

An employee who engages in “vocal and active” support does not become an 

agent on that basis alone. United Builders Supply Co., 287 N.L.R.B. 1364, 1364 

(1988) (holding that an employee’s status as a leading union supporter was

insufficient to establish general union agency). 

Here, the Union never appointed any employee to serve on any type of 

committee on its behalf. No employee served as the primary communication 

conduit between the Union and other Con-way employees. The Union 

dispatched its own representatives who visited the facility on multiple 

occasions, meeting with employees to explain the election process and garner 

 

1 At oral argument, counsel for Con-way suggested that, by seeing the upper arm and 

shoulder, an observer might be able to read a voter’s body language and determine which 

side of the yes/no ballot was being marked. We find that argument unavailing. 

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support. There were, to be sure, employees who distributed membership cards 

to their coworkers and advocated for unionization, but, as the hearing officer 

noted, “[t]hese interested employees were equals, just employees working 

concertedly as a group in their common interest.” In any union election, it is 

very likely that pro-union employees will make concerted efforts to persuade 

their colleagues. Such attempts at persuasion do not make employees agents 

of a union.

C.

J. J. Martinez (“Martinez”) was the Union observer during the election. 

Con-way argues that, while observing the proceedings, Martinez engaged in 

improper electioneering, surveillance, and list-keeping. Martinez made some 

ambiguous remarks to a few voters when they entered the polling place, such 

as “here we are;” “this is how we do it;” and “you know what you have to do.” It 

is true that “sustained conversation” between parties to the election and 

employees preparing to vote “constitutes conduct which,” “regardless of the 

remarks exchanged,” “necessitates a second election.” Milchem, Inc., 170 

N.L.R.B. 362, 362 (1968). “[A]pplication of this rule,” however, is “informed by 

a sense of realism.” Id. At 363. Martinez’s brief, isolated remarks do not violate 

the Milchem rule. See Hood Furniture, 941 F.2d at 329 (noting that “prolonged 

conversations” are required to violate the Milchem rule). Martinez also 

apparently flashed a thumbs-up signal to some voters, but there is no evidence 

that these signals were “clearly linked to any instructions to vote for the 

Union.” U-Haul Co. of Nevada, Inc., 341 N.L.R.B. 195, 196 (2004). 

In his role as observer, Martinez checked off the names of eligible voters 

as they entered the room to receive their ballots. It is “well-established” that 

an election may be set aside “if employee voters know, or reasonably can infer, 

that their names are being recorded on unauthorized lists.” Days Inn Mgmt.

Co. v. N.L.R.B., 930 F.2d 211, 215 (2d Cir. 1991) (internal quotation omitted).

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There is no evidence here that Martinez created or maintained a separate list 

of voters in violation of Board rules. 

Although we do not condone Martinez’s sometimes unprofessional 

behavior, the Board reasonably exercised its discretion in concluding that none 

of his actions were sufficient to “destroy the atmosphere necessary for a free 

choice in the election and thus to warrant setting the election aside.” Hood 

Furniture, 941 F.2d at 329. 

D.

Con-way further argues that the election is invalid because it was 

conducted in an atmosphere of fear and intimidation. Specifically, Con-way 

alleges that Union agents and third parties threatened job loss for employees 

who did not vote for the Union, that the Union created a secret “hit list” to 

threaten anti-Union employees, and that a small number of anti-Union 

employees’ vehicles were vandalized around the time of the election. 

The evidence indicates that rumors of termination for those who voted 

against the Union were unsourced, unconfirmed, and reached only a small 

number of employees. Such isolated rumors of job loss are not enough to create 

an atmosphere of fear and intimidation sufficient to undermine the results of 

an election.2

Con-way failed to present any solid evidence proving that any alleged 

“hit-list” existed. Only one employee claimed to have heard rumors of such a

list. The evidence suggests that there were instead typical and permissible 

 

2 It is debatable whether such threats would make an employee more or less likely to 

vote for a union in the first place. After all, “alleged misrepresentation of mandatory union 

membership” might well “inure[] to the benefit of the Company rather than the Union.” 

NLRB v. Golden Age Beverage Co., 415 F.2d 26, 31 (5th Cir. 1969). An undecided employee 

might find such strong-arm tactics unseemly or unsettling, for example, and might be 

inclined to vote against unionization for that reason.

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campaign lists, used to gauge and track employee support for the Union prior 

to the election. Such lists do not impact the integrity of an election. 

Four employees testified that, around the time of the election, their 

vehicles were vandalized. All four employees had been opponents of the Union. 

There is no evidence in the record identifying the vandals, however, and so the 

evidence of damage has limited probative value. See NLRB v. White Knight 

Mfg. Co., 474 F.2d 1064, 1067 n.3 (5th Cir. 1973) (“The rule is well established 

that where the challenged conduct is not attributable to either of the parties it 

can be given less weight than if the conduct were attributable to the parties 

themselves.”). There is also no evidence indicating that employees’ votes were 

impacted by the vandalism. We acknowledge that vehicular vandalism is 

serious. Nonetheless, given the small number of incidents and the lack of 

evidence linking the vandalism to Union supporters, we conclude that the 

Board reasonably exercised its discretion in finding that the vandalism did not 

create an atmosphere of fear and intimidation such that employees were 

unable to freely cast their votes. 

E.

Con-way lastly argues that the close vote, combined with all other 

evidence, mandates setting aside the election. “The closeness of the election is 

obviously relevant.” NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 

1972). But “[t]he cumulative impact of a number of insubstantial objections 

does not amount to a serious challenge meriting a new election.” Lamar Co., 

LLC v. NLRB, 127 F. App’x 144, 151 (5th Cir. 2005). The bulk of Con-way’s 

objections are based on “isolated events involving unknown persons or other 

rank and file employees rather than Union representatives.” Hood Furniture, 

941 F.2d at 330. These objections, and the evidence Con-way offers in support, 

are insufficient to “make a prima facie showing that the atmosphere of free 

choice [was] destroyed by the alleged conduct.” Id.

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* * *

There is no doubt that this election was imperfect. In particular, 

Martinez, the Union observer, acted unprofessionally inside the polling place. 

We do not condone this behavior. We do not, however, “sit to determine 

whether optimum practices were followed.” Avondale Indus., Inc. v. NLRB, 180 

F.3d 633, 637 (5th Cir. 1999) (internal quotation omitted). Rather, we 

determine “whether on all the facts the manner in which the election was held 

raises a reasonable doubt as to its validity.” Id. (internal quotation omitted). 

Taken as a whole, the facts here do not raise “a reasonable doubt” as to the 

validity of this election.

IV

Con-way Freight’s petition is DENIED. The Board’s cross-application for 

enforcement is GRANTED. 

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