Elizabethtown Gas Co. v. National Labor Relations Board

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

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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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