## Facts

- A union sought to represent Timsco, Inc.’s production and maintenance employees.
- During the campaign leading up to the election, Timsco’s general manager, Keith Pritchard, and its president, Walter Pritchard, repeatedly questioned employees about union activity and support.
- Maintenance employee John Marhefka was questioned several times over a period of weeks, including before and after the first election.
- In an early exchange, Keith told Marhefka that “who’s ever behind this organizing is going to screw up a lot of jobs for a lot of people.”
- Keith later questioned Marhefka in his office about why employees wanted a union, remarking that the company paid “a good wage,” and in another conversation asked what employees wanted—“Is it money?”
- Keith also suggested that Marhefka should come to him directly for desired benefits, conveying that employees could deal with management one-on-one rather than through a union.
- Keith questioned Marhefka about the union’s plans concerning a challenge to an employee’s vote.
- Walter questioned Marhefka about his prior union membership and asked for his support against the union.
- Walter also questioned another employee, Dorothea Green, twice about her union sympathies and expressed disappointment and surprise when she indicated support for the union.
- The first secret-ballot election resulted in an 11–11 tie; because the union did not receive a majority, it was not certified.
- The union filed objections to Timsco’s campaign conduct. After a hearing, the NLRB ultimately set aside the first election based on findings that Timsco coercively interrogated employees during the campaign.
- A second election was held; the union won and was certified as the bargaining representative.
- Timsco refused to bargain with the certified union, contesting the validity of the Board’s decision to set aside the first election.
- The NLRB found the refusal to bargain unlawful and ordered Timsco to bargain; Timsco petitioned for review, and the NLRB sought enforcement in the D.C. Circuit.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that Timsco’s repeated questioning of employees during the campaign constituted coercive interrogation that impaired employee free choice.
2. Whether the NLRB reasonably exercised its discretion to set aside the tied election and, following the second election, treat the union’s certification as valid so that Timsco’s refusal to bargain was unlawful.

## Decision

- The court denied Timsco’s petition for review and granted the NLRB’s application for enforcement.
- The court held that the Board acted reasonably in concluding that the management-employee exchanges—repeated questioning by high-level managers about union support, motives, and strategy, coupled with statements suggesting adverse job consequences and invitations to bypass collective action—disrupted the conditions required for a fair representation election.
- Because the Board permissibly set aside the first election, the union’s victory in the second election and resulting certification were valid.
- With a valid certification in place, Timsco’s refusal to bargain violated the National Labor Relations Act, and the Board’s bargaining order was enforceable.

## Legal Principles

- The NLRB has broad discretion to protect “laboratory conditions” in representation elections and to decide whether employer conduct interfered with employees’ ability to make a free and uncoerced choice.
- Whether questioning amounts to coercive interrogation is assessed under the totality of the circumstances, including the identity and authority of the questioner, the frequency of the questioning, the setting, the subjects discussed (such as union support or plans), and whether statements imply reprisals or job harm.
- In an election decided by a narrow margin (including a tie), the Board may reasonably find that improper conduct could have affected the outcome and may set the election aside to ensure a reliable measure of employee choice.
- On review, a court will uphold the Board’s election-related judgments if supported by substantial evidence and if the Board’s inferences and remedial choice are reasonable.
- When an employer refuses to bargain to obtain judicial review of a certification, the refusal is unlawful if the certification rests on a valid Board representation decision.

## Conclusion

The D.C. Circuit enforced the NLRB’s bargaining order, holding that substantial evidence supported the Board’s finding that Timsco’s top managers repeatedly and coercively questioned employees during a closely contested union campaign, justifying the Board’s decision to set aside the tied election; therefore, the union’s later certification after the second election was valid and Timsco’s refusal to bargain violated the NLRA.


Timsco Inc. v. National Labor Relations Board, 819 F.2d 1173 (1987)