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.
Enforced by published opinion. Judge Luttig wrote the opinion, in

which Judge Niemeyer and Judge King joined. 

COUNSEL

ARGUED: Christopher A. Johlie, MATKOV, SALZMAN, MADOFF & 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 RELATIONS BOARD, Washington, D.C., for Board. Carey R. Butsavage,

BUTSAVAGE & ASSOCIATES, P.C., Washington, D.C., for Intervenor. 

OPINION

LUTTIG, Circuit Judge: 

Overnite Transportation Company is a trucking company that operates 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, Kentucky; 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 bargaining 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. 

2 OVERNITE TRANSPORTATION CO. v. NLRB
I.

Overnite first challenges the Board’s bargaining unit determinations at the Lexington and Buffalo terminals. In Lexington, IBT Local

651 petitioned to represent two separate employee units: a "drivers/dockworkers" unit, which included approximately 243 road drivers, 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 discretion 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

1The union won the election among the Lexington drivers/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. 

2The union won the election in the mechanics-excluded Buffalo unit

by a vote of 16 to 14. 

OVERNITE TRANSPORTATION CO. v. NLRB 3
NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580 (4th Cir. 1995) (citing 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, Overnite 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 Memphis terminal is "factually indistinguishable" from the Lexington terminal, 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 constructions 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 appropriate 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

3The union lost the election in the mechanics-included Memphis unit.

4 OVERNITE TRANSPORTATION CO. v. NLRB
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 contends 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 establishes 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 organization 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 Lexington and Buffalo. Nowhere does the NLRA define "controlling" for

purposes of section 9(c)(5), but several possibilities present themselves. The broadest interpretation of "controlling" would prohibit the

Board from even considering extent of organization as a factor in its

4The 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 construction of the statute before us. When confronted with potentially inconsistent, yet binding, authority, the best course of action is to decide the case

on other grounds, if at all possible. 

OVERNITE TRANSPORTATION CO. v. NLRB 5
unit determination decisions. The Supreme Court rejected this construction 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 Arcadian 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 determination. 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 significance."). 

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

6 OVERNITE TRANSPORTATION CO. v. NLRB
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 explicitly acknowledge that "a [union’s] desires concerning the composition

of the unit(s) which it seeks to represent constitute a relevant consideration," J.A. 553, but also buttressed its decision with caselaw finding 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 Overnite 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 representations 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 balancing process does not make it "controlling" within the prohibition of

the statute."). 

OVERNITE TRANSPORTATION CO. v. NLRB 7
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 determination at the Buffalo terminal, that "[t]he Board’s declared policy is to

consider only whether the unit requested [by the union] is an appropriate 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 "community 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 sensitive to Overnite’s concern that the Board could circumvent Overnite’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 terminal 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 statu6The Board relied, among other things, on the lack of regular interchange 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. 

8 OVERNITE TRANSPORTATION CO. v. NLRB
tory violation in the Board’s unit determinations at Lexington or Buffalo. 

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 outcome 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 Riddell 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. 

7Mr. Stefan represented Local 651 at the hearing. 

8Mr. Salzman represented Overnite at the hearing. 

OVERNITE TRANSPORTATION CO. v. NLRB 9
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 operations clerks out of the bargaining unit in keeping with its "community 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 identical 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 protest that neither McDaniel nor Riddell is classified as an operations

clerk. (McDaniel is classified as a dockworker, and Riddell is classified as a dock leadman.) Overnite does not dispute the Board’s findings 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 testified that he has not worked on the dock at all since 1985. Id. Nor

does Overnite dispute the Board’s finding that Riddell works exclusively 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 ballots. 

10 OVERNITE TRANSPORTATION CO. v. NLRB
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 presumptively 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 photography is unaccompanied by express or implicit threats or other forms of

coercion. See Randell Warehouse of Arizona, 328 NLRB No. 153

(1999),9enforcement 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 coercion" are exaggerated, and, moreover, are unrelated to the photo9Randell Warehouse overruled the Board’s decision in Pepsi-Cola Bottling 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. 153

n.9. 

OVERNITE TRANSPORTATION CO. v. NLRB 11
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’ credibility. While it is still conceivable that the mud-splashing incident,

even though inadvertent, might have made the election-day photography seem more coercive or threatening to some of Overnite’s employees, we cannot conclude that the Board abused its discretion in

finding otherwise, given the record in the case. It was therefore permissible 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 interpretation 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

10Stamper 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 proCompany employee that "if you don’t vote for Union you’re a dickhead,"

J.A. 1314, which is not a threat. 

12 OVERNITE TRANSPORTATION CO. v. NLRB
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 during 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 photography 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 standard, a Court of Appeals can and should deny enforcement to its

order. We do not think, however, that the Board’s application of Randell Warehouse to permit the photography at issue at Lexington violated 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 suggestion 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 violation 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 accompanying the photography, we do not believe the Board misapplied its Randell 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

OVERNITE TRANSPORTATION CO. v. NLRB 13
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 coercive 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 evidence. As a reminder to Overnite, we are reviewing the Board’s decision, 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 explaining how the Board erred in its factfinding by not crediting this evidence, 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 repre14 OVERNITE TRANSPORTATION CO. v. NLRB
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 Lexington, Buffalo, Detroit, and Bowling Green, the International Brotherhood of Teamsters called a nationwide strike against Overnite to

protest. Overnite alleges that this strike has been plagued with violence 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, Buffalo, 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 brutal 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 representatives, rather than the conduct of the IBT, which is a separate

OVERNITE TRANSPORTATION CO. v. NLRB 15
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 decertify. 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 accordingly deny Overnite’s petition for review. 

ENFORCED

16 OVERNITE TRANSPORTATION CO. v. NLRB