Elizabethtown Gas Co v. NLRB , 212 F.3d 257 ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELIZABETHTOWN GAS COMPANY, a
Division of NUI Corporation,
Petitioner,
No. 99-1687
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 99-1801
ELIZABETHTOWN GAS COMPANY, a
Division of NUI Corporation,
Respondent.
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
(22-CA-23113)
Argued: March 2, 2000
Decided: May 16, 2000
Before MOTZ and KING, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.
_________________________________________________________________
Petition for review denied and cross-application for enforcement
granted by published opinion. Judge King wrote the opinion, in which
Judge Motz and Senior Judge Kiser joined.
COUNSEL
ARGUED: Martin F. Payson, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Morristown, New Jersey, for Elizabethtown Gas. David
A. Seid, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board. ON BRIEF: Joseph F. Accardo, JACKSON,
LEWIS, SCHNITZLER & KRUPMAN, Morristown, New Jersey, for
Elizabethtown Gas. Frederick L. Feinstein, General Counsel, Linda
Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Asso-
ciate General Counsel, David Haberstreit, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Elizabethtown Gas Company ("the Gas Company") petitions for
review of an order of the National Labor Relations Board ("NLRB")
requiring, inter alia, the Gas Company to recognize and bargain with
the Communications Workers of America, AFL-CIO ("the Union").
The NLRB brings a cross-application seeking enforcement of its
order ("the NLRB Order").
In a close election, the employees of the Gas Company chose the
Union as their exclusive collective bargaining representative. Thereaf-
ter, the NLRB considered and rejected the Gas Company's objections
to the election and certified the Union. However, the Gas Company
refused to bargain with the Union, challenging the validity of the
NLRB's certification and claiming that the NLRB erred in overruling
the Gas Company's objections to the election. Following a complaint
from the Union, the NLRB concluded that the Gas Company's refusal
to bargain constituted an unfair labor practice in violation of Sections
2(6), 2(7), 8(a)(1) and 8(a)(5) of the National Labor Relations Act
("NLRA"). See 29 U.S.C. §§ 151 et seq. Therefore, the NLRB
ordered the Gas Company to recognize and bargain with the Union.
We conclude that the NLRB did not abuse its discretion in reject-
ing the Gas Company's objections to the election or in certifying the
2
Union. We therefore deny the Gas Company's petition and grant
enforcement of the NLRB Order.
I.
The Gas Company operates a public utility supplying natural gas
to customers in New Jersey. On September 25, 1997, the Union filed
a petition with the NLRB seeking certification as the collective bar-
gaining representative of the Gas Company's service and dispatch
employees in Elizabeth, Perth Amboy, and Union, New Jersey. Fol-
lowing the NLRB's rejection of the Gas Company's objections,1 the
NLRB directed that an election by secret ballot be held in which the
voters would determine "whether or not they desire to be represented
for collective bargaining purposes by Communications Workers of
America, AFL-CIO." J.A. 220.
The NLRB conducted the election on November 20, 1997, at the
Gas Company's Elizabeth, New Jersey facility. Among the eighty-
five unit employees, forty-two voted in favor of the Union and forty
voted against the Union, with one challenged ballot and one void bal-
lot. The Gas Company then timely filed twelve objections relating to
conduct allegedly affecting the results of the election, citing purported
misconduct by the NLRB agent who oversaw the election and by the
Union during the election campaign.
On December 5, 1997, an NLRB Regional Director responded to
the Gas Company's twelve objections by issuing a Supplemental
Decision and Notice of Hearing to gather evidence relating to four of
the objections. Pursuant thereto, an NLRB Hearing Officer conducted
a one-day hearing on December 16, 1997, during which the parties
were permitted to call and cross-examine witnesses.
On December 17, 1997, the Regional Director issued his Second
Supplemental Decision on Objections, in which the NLRB rejected
the Gas Company's eight objections for which no hearing was
required. Thereafter, on January 14, 1998, the Gas Company
_________________________________________________________________
1 The Gas Company contended, inter alia, that the dispatchers were
"supervisors" for purposes of the NLRA and therefore could not benefit
from the protections of the Act.
3
requested NLRB review of the Regional Director's Second Supple-
mental Decision. Subsequently, on January 28, 1998, the NLRB
Hearing Officer submitted a report relating to the four remaining
objections on which a hearing had been held, concluding that the
objections should be overruled. The Gas Company responded on Feb-
ruary 10, 1998, by filing exceptions to the NLRB Hearing Officer's
report, supported by a brief in support of its exceptions.
On December 3, 1998, the NLRB issued an order rejecting the Gas
Company's exceptions to the Regional Director's Second Supplemen-
tal Decision and adopting the Hearing Officer's report, thereby over-
ruling each of the Gas Company's objections. This order also
included a Certificate of Representation, certifying the Union as the
exclusive collective bargaining representative of the employees as of
December 3, 1998.
On December 11, 1998, the Union sent the Gas Company a letter
seeking to bargain, but the Gas Company refused to negotiate. The
Union responded on January 11, 1999, by filing an unfair labor prac-
tice charge against the Gas Company, claiming that it had violated the
NLRA. The General Counsel of the NLRB then filed an administra-
tive complaint, charging the Gas Company with unfair labor prac-
tices, including failing to bargain with a duly certified Union in
violation of the NLRA. The Gas Company filed its answer admitting
that it had refused to bargain but attacking the validity of the certifica-
tion on the basis that its (the Gas Company's) objections to the elec-
tion had been improperly overruled. Following the submission of
summary judgment briefs, the NLRB, on April 30, 1999, found for
the Union and ordered the Gas Company to: (1) cease and desist vio-
lating the NLRA; (2) recognize and bargain with the Union; and (3)
if an agreement is reached, "embody the understanding in a signed
agreement."
The Gas Company has petitioned in this Court for review of the
order of the NLRB, and the NLRB has cross-applied, seeking
enforcement of its order. We possess jurisdiction in this case pursuant
to 29 U.S.C. § 160(e) & (f).
II.
"The results of a[n NLRB]-supervised representative election are
presumptively valid." NLRB v. Flambeau Airmold Corp., 178 F.3d
4
705, 707 (4th Cir. 1999). This presumption reflects Congress's deci-
sion to "entrust[ ] the [NLRB] with a wide degree of discretion in
establishing the procedure and safeguards necessary to insure the fair
and free choice of bargaining representatives by employees." NLRB
v. A.J. Tower Co., 329 U.S. 324, 330 (1946). Therefore, we may not
substitute our judgment for that of the NLRB, even if we would have
made a different decision had the matter been before us de novo. So
long as the NLRB's decision is reasonable and based upon substantial
evidence in the record considered as a whole, it must be upheld. See
§ 29 U.S.C. 160(f); Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951).
Where pre-election conduct is alleged to have invalidated a repre-
sentation election, the party seeking to overturn the election -- in this
case the Gas Company -- bears a heavy burden. The challenging
party must prove by specific evidence not only that campaign impro-
prieties occurred, but also that they prevented a fair election. NLRB
v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th Cir. 1987). Thus, it is not
enough that the Gas Company demonstrates an NLRB failure to fol-
low its own policies: "We did not intend that the election be set aside
merely on the basis that it was possible that the choice had been cor-
rupted or that there was an opportunity to corrupt the choice." New-
port News Shipbuilding & Dry Dock Co. v. NLRB, 608 F.2d 108, 111
(4th Cir. 1979). In other words, we may overturn the NLRB's finding
only if the NLRB has "abused its discretion" in certifying the election.
Case Farms of North Carolina, Inc. v. NLRB, 128 F.3d 841, 844 (4th
Cir. 1997).
Because the Gas Company admits that it has refused to bargain
with the Union, the sole issue underlying our review of the NLRB's
Order is whether the NLRB abused its discretion in certifying the
Union.2 For the reasons set forth below, we conclude that none of the
_________________________________________________________________
2 In reviewing the Gas Company's contentions, we are reminded of
Judge Craven's insightful observations, albeit in a different context:
"[I]ngenious and diligent counsel have taken a shotgun approach to the
validity [of the proceedings], asserting that reversible error occurred in
[numerous] respects. So many points of error suggest that none are
valid." United States v. Sawyers, 423 F.2d 1335, 1338 (4th Cir. 1970).
Those observations apply with equal force here; nonetheless, we have
carefully reviewed the Gas Company's myriad objections to the election.
5
Gas Company's objections, considered individually or in their total-
ity, demonstrate an abuse of discretion by the NLRB. We take the
objections in turn, beginning each discussion by reviewing the facts
relevant thereto.
A.
The NLRB was represented at the election by NLRB Agent Erica
Tener ("Agent Tener"). At a pre-election conference, as Agent Tener
was setting up for the election, she observed aloud that the pencils to
be used for voting were unsharpened. In response, the Gas Compa-
ny's director of customer relations offered sharpened pencils with
erasers, which were on a shelf in the voting room. Agent Tener
declined, claiming that pencils without erasers, like the ones provided
in the NLRB election kit, were the only writing implements that could
be utilized in NLRB elections. The Gas Company employee then
sharpened the eraserless pencils for use in the election.
During the election, Gas Company employee Donna Krapf entered
the polling area to cast a ballot. When Ms. Krapf moved into the vot-
ing booth and observed that pencils were being used in voting, she
asked whether she was required to vote in pencil. Agent Tener
replied, "[T]hat's the law." J.A. 323, 150. Ms. Krapf worried aloud
that if she voted in pencil, "anybody can go and change [the vote]."
J.A. 150. Agent Tener then responded that the absence of erasers
sought to avoid this form of tampering, but Ms. Krapf returned the
ballot unmarked to Tener and left the polling area.
Ms. Krapf subsequently spoke to her supervisor, who encouraged
her to vote. She then returned to the polling area to vote; she received
a new ballot but inadvertently marked the incorrect box. Agent Tener
took the spoiled ballot and, with Ms. Krapf as a witness, sealed the
ballot in an envelope. Krapf was then given a new ballot, which she
used and placed in the ballot box. The Gas Company raised two
objections relating to these facts, and we discuss them in turn below.
1.
First, the Gas Company alleges that it was error for the Board
Agent to require the use of the eraserless pencils that came with the
6
NLRB election kit. Specifically, the Gas Company notes that nothing
in the Board rules, regulations, or procedures required the use of
eraserless pencils; in fact, the NLRB's publications imply the contrary
insofar as the NLRB Casehandling Manual discusses"erasures" in the
context of valid ballots. The Gas Company further argues that the lack
of erasers disenfranchised voters, as evidenced by Ms. Krapf's reac-
tion when she entered the voting booth along with the reaction of
other voters.
Where, in all the circumstances, an NLRB Agent's conduct does
not raise a reasonable doubt about the fairness or validity of the elec-
tion, even actions that are contrary to NLRB policy do not constitute
grounds for setting aside the results of the election. See NLRB v.
Duriron Co., Inc., 978 F.2d 254, 259 (6th Cir. 1992). In this light,
even if we assume that Agent Tener's statement -- that the use of
eraserless pencils was required "by law" -- was contrary to NLRB
policy, it had no apparent effect on the election. The Gas Company
cannot demonstrate that a single voter was disenfranchised by the lack
of erasers. Indeed, the lone employee voter who expressed concern
was worried about the use of pencils, not by the absence of erasers,
and even that voter ultimately submitted a ballot. Under these circum-
stances, we see no reason to overturn this election for lack of erasers
on the pencils.
2.
Second, the Gas Company argues that one of the ballots handled
by Ms. Krapf has been misplaced and that this mandates overturning
the election. That is, the Gas Company claims that when Ms. Krapf
went into the voting booth the first time and decided not to vote, she
returned her ballot to Agent Tener. The Gas Company further asserts
that the NLRB cannot account for this ballot and that the two observ-
ers have given conflicting accounts of what was done with it, with the
Gas Company observer testifying that Agent Tener sealed this first
ballot in an envelope and the Union observer testifying that Agent
Tener returned the unmarked ballot to the blank ballot pile. Based on
these assertions, the Gas Company claims that: (1) Agent Tener
should have been required to testify during the administrative hearing
in order to resolve the factual disputes; and (2) the election should be
overturned.
7
With respect to Agent Tener's testimony at the administrative hear-
ing, NLRB agents are cloaked with a limited evidentiary privilege.
"[T]he highly sensitive and delicate role of the Board Agent in pro-
cessing and resolving unfair labor practice and representation cases
would be seriously impaired if a real likelihood existed of the Board
Agent's becoming enmeshed as a witness in cases to which he has
been assigned." Drukker Communications, Inc. v. NLRB, 700 F.2d
727, 731 (D.C. Cir. 1983) (quotations and citation omitted). Consis-
tent with the limited privilege, the NLRB's Rules and Regulations
require that a party obtain the written consent of the General Counsel
to compel testimony by an employee of an NLRB regional office. See
29 C.F.R. § 102.118(a)(1). A party asserting injury from the errone-
ous assertion of this privilege bears the burden of establishing preju-
dice therefrom. See NLRB v. Health Tec Division/San Francisco, 566
F.2d 1367, 1372 (9th Cir. 1978).
On December 10, 1997, following the NLRB Regional Director's
issuance of his Notice of Hearing, the Gas Company first requested,
in a letter to the General Counsel of the NLRB, authorization to sub-
poena Agent Tener. In support, the Gas Company relied on the four
objections upon which the NLRB had scheduled a hearing; signifi-
cantly, there was no mention of a "missing" or"spoiled" ballot as a
reason necessitating Agent Tener's testimony.3
The Regional Director withheld a ruling on the request that Agent
Tener be required to testify until after the hearing on December 16,
1997. Following that hearing, the Regional Director determined that
there was no dispute of fact that required the waiver of Agent Tener's
limited privilege; therefore, he declined to permit the agent's testi-
mony. The Gas Company responded that evidence produced at the
hearing on December 16th had revealed a second spoiled ballot, thus
necessitating the agent's testimony. Again, however, the Regional
_________________________________________________________________
3 The letter does mention "spoiled ballots" (J.A. 367); however, this
reference merely sought to explain why Agent Tener's refusal to utilize
pencils with erasers could have affected the outcome of the election (i.e.,
the failure to permit the use of erasers when coupled with the failure to
instruct voters on the handling of "spoiled" ballots could have disenfran-
chised voters). There was no allegation in the Gas Company's letter of
December 10, 1997, that there was a missing "spoiled" ballot.
8
Director declined this request because the Gas Company had made no
objection to the election based on "spoiled ballots," specifically stat-
ing:
Employer Counsel contends the testimony in the hearing
conducted on December 16, 1997, revealed two spoiled bal-
lots and requests production and copies of envelopes involv-
ing such. I am declining to provide any information
regarding spoiled ballots. Objections filed in this matter
made no reference to the issue of spoiled ballots. Rather,
Objection No. 2, which inter alia is the subject of the hear-
ing in the above-captioned matter, brought into issue a void
ballot. Objection No. 11, which I overruled in my Second
Supplemental Decision on Objections of December 17, 1997
also made reference to only a void ballot, not spoiled bal-
lots. Although there is a reference to "spoiled ballots" in
Employer's Objection No. 2, it is merely a reference to
spoiled ballots in general rather than an allegation of objec-
tionable conduct. None of the Employer's other objections
make reference to spoiled ballots. Accordingly, any allega-
tions concerning spoiled ballots are not within the scope of
objections filed herein by the Employer. Clearly, any allega-
tions as to objectionable conduct involving spoiled ballots
could not be newly discovered or previously unavailable to
Employer Counsel, which filed extensive objections involv-
ing the conduct of the election after what I presume was an
exhaustive investigation regarding such. Rhone-Poulenc,
Inc., 271 N.L.R.B. 1008 (1984).
J.A. 373. The Hearing Officer similarly rejected a"spoiled ballot"
objection contained in the Gas Company's briefs based on the fact
that the issue was "not contained in any of its objections filed by the
Employer or addressed at the hearing." J.A. 331.
Notwithstanding that the Gas Company was specifically notified
that it could take exception to the NLRB's refusal to address its argu-
ment relating to "spoiled ballots,"4 none of the Gas Company's briefs
_________________________________________________________________
4 In declining to address the"spoiled ballot" objection, the NLRB Hear-
ing Officer noted: "Exceptions to all rulings, including rulings of the
Regional Director, should be contained in the excepting party's brief to
the Board." J.A. 331.
9
filed after that decision took exception to this NLRB ruling. We agree
with the NLRB that it must be permitted to "prevent the piecemeal
submission of objections" and avoid the delays in the certification
process that would result from such objections. In that regard, parties
must be required "to act promptly in unearthing and reporting to the
Region any potentially objectionable conduct." Rhone-Poulenc, 271
N.L.R.B. at 1008. Given that the Gas Company did not take exception
to the NLRB's clear administrative statement that this argument
would not be considered because it was not the subject of any Gas
Company objection, we agree with the NLRB that the Gas Company
waived its argument arising out of the "failure to account" for Ms.
Krapf's first ballot.
The Gas Company attempts to salvage this argument in several
ways. First, it asserts that the generalized references to either "ballots"
or "spoiled ballots" was sufficient to preserve the objection. We dis-
agree; were a passing reference sufficient to preserve an objection, the
objection process would have no worth. Simply put, to be preserved
for appellate review, an allegation of error must be grounded in an
appropriately specific objection. United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 37 (1952) ("Simple fairness to those who are
engaged in the tasks of administration, and to litigants, requires as a
general rule that courts should not topple over administrative deci-
sions unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its practice.").
Second, the Gas Company claims that its "saving" objection -- that
"these and all other Union activities which the Board may discover
during its investigation which would support the overturning of the
election and the order for a new election" (J.A. 229) -- preserved the
argument. However, we need not resolve whether this form of "saving
objection" may preserve the opportunity to amend objections because
the Gas Company took no action to either (1) amend its objections or
(2) take exception to the NLRB's rejection of the missing spoiled bal-
lot argument. We must therefore reject the Gas Company's "saving
objection" argument.
Finally, the Gas Company contends that its argument should be
preserved because the evidence necessary to raise the objection did
not come to light until the hearing on December 16, 1997. For several
reasons, this contention also fails to warrant overlooking the Gas
10
Company's waiver. First, after the Gas Company learned the facts
underlying its argument, and after it was notified that its objections
did not encompass any argument relating to spoiled ballots, it took no
steps in the administrative proceedings to formally preserve or raise
the objection. Second, the Gas Company's two arguments on this
issue -- (1) that failure to preserve the "spoiled ballot" objection
should be excused and (2) that Agent Tener should have been
required to testify at the hearing -- are premised on the notion that
the Gas Company could not obtain the facts underlying this objection
until the NLRB hearing. These arguments rise and fall on a single
false premise. In truth, the Gas Company had its own observers pres-
ent throughout the election, and they could have provided the facts
relating to Ms. Krapf's visits to the balloting area. Further, Ms. Krapf
and other witnesses to the "missing spoiled ballot" incident are
employees at the Gas Company, and they were thus available for the
Gas Company to interview informally at any time prior to the hearing.
In this light, the Gas Company could have interviewed all of these
individuals and easily obtained the facts underlying the objection, and
we, under these circumstances, cannot overlook its waiver.5 In short,
the Gas Company's allegations of "spoiled" ballots do not present an
appropriate basis to overturn this election, and we affirm the NLRB's
decisions on this issue.
Similarly, insofar as the Gas Company now bases its claim for
Agent Tener's testimony upon "spoiled ballots," we agree with the
_________________________________________________________________
5 In a similar vein, we reject the Gas Company's other arguments on
the "missing spoiled ballot" issue. First, given that the Gas Company had
not properly objected, the NLRB had no obligation to independently
investigate this claim. Second, although we carefully review claims of
error when the election is closely decided, we will not overturn elections
on the basis of objections that were not properly preserved. Finally, that
the NLRB has declined to open the envelope containing Ms. Krapf's
spoiled ballot is no basis to excuse the waiver or to overturn the election.
The NLRB has an interest in preserving the secrecy of ballots, and were
the NLRB to open the envelope containing Ms. Krapf's spoiled ballot,
that action might reveal how Ms. Krapf cast her ballot. Because the Gas
Company never objected on the basis of "spoiled" ballots, the NLRB's
interest in preserving the secrecy of the voter's ballot clearly outweighed
the Gas Company's interest in opening the envelope. We thus find no
abuse of discretion on this issue.
11
NLRB that there was no need for the agent's testimony because the
Gas Company had waived the objection by failing to file an objection
to the election arising out of allegedly spoiled ballots. On the other
hand, if the Gas Company bases its argument -- that Agent Tener
should have been required to testify at the hearing-- upon the neces-
sity to resolve other factual disputes, we agree with the NLRB that no
material factual disputes remain on the record that necessitate the tes-
timony of the Board Agent. We thus affirm the NLRB's decision
declining permission for Agent Tener's testimony. 6
B.
The Gas Company also contends that Agent Tener erred in permit-
ting the Gas Company's "election observers" to maintain their own
lists of voters. It asserts that this error affected the "laboratory condi-
tions" during the election and should mandate overturning the elec-
tion.
The facts underlying this claim of error are as follows. The voting
was conducted in two sessions -- the morning and afternoon sessions
-- with different persons observing on behalf of the Gas Company
during each session. Prior to the morning session, a Gas Company
lawyer gave one of the company observers a copy of the voting lists
for her use during voting. However, before the polls opened, Agent
Tener told the Gas Company and Union observers that the official "Ex-
celsior7 list" would be kept on the table in front of the observers'
seats, and the observers were to place a check on the official list when
employees came to vote. In addition, Agent Tener provided observers
with instructions, which listed "THINGS NOT TO DO," stating "[Do
not k]eep any list of those who have or have not voted." J.A. 210, 315
_________________________________________________________________
6 Although we reject this argument as waived, our review of the merits
of this objection gives us no pause. The uncontroverted testimony at the
hearing established that the first ballot handled by Ms. Krapf was blank
when it was returned to Agent Tener, and there is no dispute that Ms.
Krapf did, in fact, subsequently cast a ballot. Although we do not resolve
the issue, we fail to see how these facts could have constituted a basis
to overturn the election.
7 The lists are so named because their use was authorized in Excelsior
Underwear Inc., 156 N.L.R.B. 1236 (1966).
12
(emphasis in original). The observers signed the instructions to
acknowledge that they read them. This same process was repeated
prior to the afternoon session.
During the morning session, Agent Tener apparently noticed that
the company observer was holding a piece of paper and instructed the
observers to place any papers or lists other than the official "Excelsior
list" on their laps. During the morning session, the company observer
checked off the names of all voters, and the observer returned that
duplicate list to the Gas Company lawyer at the end of the session.
Shortly before the afternoon session, the Gas Company lawyer
gave the second company observer the same copy of the duplicate list
maintained by the first company observer. The lawyer directed the
second company observer to keep the duplicate list in his lap and
check off the name of each voter. Agent Tener again instructed the
observers to keep any papers or lists in their laps, and the second
company observer checked off the name of each voter during that ses-
sion. At the end of the session, the second company observer returned
the list to the lawyer.
Based on these facts, the Gas Company contends that when Agent
Tener permitted the company observers to keep the lists on their laps,
the agent implicitly advised them that they could keep lists of voters.
The Gas Company claims that voting could have been affected
because the room layout was such that voters could have observed
their names being recorded, and the Gas Company therefore asserts
that the election should be overturned.
On the contrary, we find no abuse of discretion in the NLRB's
decision to overrule this objection. First, we agree with the NLRB
that the Gas Company should not be permitted to overturn an election
based on conduct that was encouraged, if not specifically com-
manded, by the Gas Company itself. It is undisputed that the Gas
Company lawyer instructed the observers to maintain duplicate lists,
although the Gas Company contends that it merely instructed the
observers to record challenged voters. The Gas Company's protesta-
tions of innocence are undermined by the fact that its lawyer passed
the same duplicate voting list -- upon which each voter during the
morning session had been recorded -- to the company observer dur-
13
ing the afternoon session. Presumably, the lawyer observed that the
list contained numerous markings but, rather than properly instructing
the afternoon observer, merely passed the duplicate list to that
observer. It thus appears that the Gas Company caused, or was com-
plicit in, the maintenance of duplicate lists, and we decline to overturn
the NLRB certification under such circumstances.
Further, it is true that the NLRB "has long maintained a policy pro-
hibiting anyone from keeping a list, aside from the official eligibility
list, of employees voting in a representation election." Medical Center
of Beaver County, Inc. v. NLRB, 716 F.2d 995, 999 (3d Cir. 1983).
However, the core of the NLRB's review over an error relating to
such lists is whether:
employee voters know, or reasonably can infer, that their
names are being recorded on unauthorized lists. Absent such
knowledge or inference on the part of voters, any list-
keeping activity, although technically prohibited, obviously
could not interfere with the exercise of voter free choice and
would not warrant setting aside an election.
Id. (quotations and citations omitted). In this vein, the Gas Compa-
ny's argument fails because there is no evidence, direct or circum-
stantial, that any voter noticed the company observers recording their
vote. Thus, ignoring that Agent Tener's written instructions clearly
prohibited the observers from maintaining lists, even if Agent Tener
countenanced the maintenance of such lists in some way, those lists
evidently failed to affect a single voter. We must also affirm the
NLRB on this issue.
C.
In another objection, the Gas Company asserts that Agent Tener
left the ballot area for a bathroom break, and during this break, the
agent did not seal the ballot box or take any precautions to prevent
tampering. The Gas Company concedes that there were observers for
both the Union and the company in the room at the time and that no
one saw any vote tampering; however, the Gas Company asserts that
leaving the ballot box unattended violated the NLRB Manual. In this
light, the company asserts that we must demand affirmative testimony
14
accounting for the unattended ballots before we affirm the election
results.
We also reject this objection as a basis for overturning the election.
The uncontroverted evidence established that there were Union and
company observers in the room when Agent Tener left for a few min-
utes, and not a single voter cast a ballot during the agent's absence
from the voting area. Under these circumstances, even assuming a
technical violation of the NLRB Manual, the violation had no appar-
ent effect on the voting, and we must affirm the NLRB on this issue.
D.
The Gas Company also notes that the NLRB Manual suggests that
when election observers leave the company of the Board Agent, that
observer should be accompanied by an observer for the other side so
as to prevent electioneering. In reliance thereon, the Gas Company
asserts that the Board Agent erred in permitting two observers to
leave the polling area unescorted. In addition, the Gas Company con-
tends that the Union observer spoke with an eligible voter during this
time, thereby engaging in prohibited electioneering.
The evidence on this issue establishes that the Union observer was
permitted to go to the bathroom, and while in the bathroom, the Union
observer told an employee, who had already voted, that "[the election
is] almost over." J.A. 79. Similarly, the company observer was per-
mitted to smoke a cigarette without an escort, but there was no evi-
dence that the company observer spoke to anyone during the cigarette
break. In this light, no conduct that occurred can be fairly character-
ized as "electioneering," and no prejudice of any kind can be demon-
strated. We therefore also affirm the NLRB on this issue.8
_________________________________________________________________
8 The Gas Company also argues on appeal that its other objections
demonstrate that the NLRB abused its discretion in certifying the Union.
Among other things, it asserts that: (1) during pre-election campaigning,
the Union improperly conditioned the waiver of Union initiation fees on
the signing of Union authorization cards; (2) the Union improperly mis-
led the employees about the Gas Company's position relating to the
Union by including, in its propaganda, a document that utilized Gas
Company letterhead; (3) the NLRB erred in permitting no absentee bal-
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III.
We thus conclude that minor violations and non-violations of "pol-
icy," having no apparent affect on an election result, may not serve
as the basis to overturn such election. For example, as noted above,
the Gas Company alleged that the NLRB's voiding of a ballot con-
taining identical marks in the "Yes" and "No" boxes constituted a
stand-alone basis for invalidating this election. The simple people of
Appalachia would say that arguments like these "don't pass the smell
test"; any common sense review would compel dismissal of such
assertions without pause. More importantly, plainly meritless conten-
tions undermine a litigant's credibility and diminish the force of other
arguments. At bottom, the Gas Company's attempt to create the illu-
sion of pervasive error (see Judge Craven's observations in Sawyers,
supra note 2) is based on the fact that this election was a close one.
Elections decided by narrow margins are closely scrutinized; there is,
however, simply no presumption against the validity of a closely con-
tested election. Cf. NLRB v. Browning-Ferris Indus. of Louisville,
Inc., 803 F.2d 345, 349 (7th Cir. 1986) ("While . . . the closeness of
the vote may be [a] relevant consideration[ ] in determining whether
free choice was interfered with . . . [this] fact is [not] sufficient to
raise a presumption that the [complained of] conduct had an impact
on the election results.") (citation omitted).
IV.
For these reasons, we conclude that the NLRB did not abuse its
discretion in certifying this election, and we order that the NLRB's
Order be enforced.
PETITION FOR REVIEW DENIED AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED
_________________________________________________________________
lots; and (4) the NLRB erred by voiding a ballot that had identical marks
in both the "Yes" and "No" boxes. We have carefully considered each of
these objections and do not find an abuse of the NLRB's discretion in
connection with any of them.
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