XPO Logistics Freight, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 2016

13-RC-177753 (N.L.R.B. Nov. 9, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
XPO LOGISTICS FREIGHT, INC.
Employer Case 13-RC-177753
and
LOCAL LODGE 701, INTERNATIONAL
ASSOCIATION OF MACHINISTS &
AEROSPACE WORKERS AFL-CIO
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and
Certification of Representative is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., November 9, 2016.

1 Member Miscimarra agrees with the Regional Director and his colleagues that none of the
allegedly objectionable employee conduct in this case requires a new election under the
applicable multifactor standard set forth in Westwood Horizons Hotel, 270 NLRB 802, 803
(1984), for determining whether third-party threats warrant setting aside an election. Although
Member Miscimarra agrees with that standard, he would abandon the phrase “general
atmosphere of fear and reprisal” because it improperly suggests that an election cannot be set
aside unless third-party threats affected nearly all eligible voters, no matter how close the tally
and how serious the misconduct. See Mastec Direct TV, 356 NLRB 809, 813-815 (2011)
(Member Hayes, dissenting) (criticizing Westwood Horizons Hotel on this point). Contrary to the
implication of the phrase, the Board has in fact properly set aside elections based on serious
third-party misconduct affecting only a few determinative voters. See Robert-Orr Sysco Food
Services, 338 NLRB 614 (2002); Smithers Tire, 308 NLRB 72 (1992); Buedel Food Products
Co., 300 NLRB 638 (1990); Steak House Meat Co., 206 NLRB 28 (1973).