Decided: December 14, 2012
Ashland Facility Operations, LLC, a nursing facility near Richmond, Virginia, petitioned the Fourth Circuit to review an order by the National Labor Relations Board that required Ashland Facility to negotiate with a newly unionized group of Ashland Facility employees. The NLRB’s order came on the heels of a contentious union representation election, in which Ashland Facility claimed that the election results had been tainted by “unlawful appeals to racial prejudice.” An administrative law judge rejected the nursing facility’s objections and certified the union “as the exclusive bargaining representative” for the employees. The ALJ’s order was later affirmed by the NRLB; however, Ashland Facility refused to bargain with the union regarding its employees’ terms and conditions of employment. Consequently, the union filed a complaint with the NLRB alleging that Ashland Facility’s intransigence was a violation of the National Labor Relations Act. The NRLB ruled in favor of the union and ordered the nursing facility to negotiate.
Petitioning the Fourth Circuit for review, Ashland Facility argued that during the campaign period the Virginia NAACP was acting as an apparent agent of the union. Because of this agency status, Ashland Facility argued, the alleged inflammatory statements made by the Virginia NAACP’s executive director should have been closely scrutinized by the NLRB in certifying the election results. The Fourth Circuit first determined that there was sufficient evidence to support the NLRB’s finding that the NAACP chapter was not an agent for the union. In addition, the court held that the executive director’s comments could not be deemed racially inflammatory so as to subject the election to a heightened standard of scrutiny. According to the court, the statements could not be considered “inflammatory” because they were not designed solely to “inflame the racial feelings of voters,” but instead were “made in the context of raising legitimate concerns about the working conditions” at Ashland Facility. Whatever the effect of the executive director’s statements, the court stated, the nursing facility failed to demonstrate that their employees did not decide freely how to vote in the union representation election. And finally, the Fourth Circuit held that even if the comments were sufficiently inflammatory to invalidate the election, the comments were made prior to the “critical period”—the time between the filing of the representation petition and the election—and thus likely carried no influence over the vote. Therefore, the court denied Ashland Facility’s petition and ordered the enforcement of the NLRB ruling.
-John C. Bruton, III