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EVANS, Circuit Judge. Marking an X in either the”yes” or “no” box of a ballot might not seem likea particularly demanding task. But in this laborelection on whether to unionize, one ingeniousworker forsook those unimaginative choices,ignored the ballot’s clearly written directions,and instead scribbled “neither nor” on hisballot, creating a quandary that put the outcomeof the election in doubt. In April 1998 the National Labor RelationsBoard conducted a secret ballot election todecide whether employees of AmeriCold Logistics,Inc. wished to be represented by Teamsters Local325, affiliated with the InternationalBrotherhood of Teamsters, AFL-CIO. AmeriColdoperates a refrigerated food warehouse inRochelle, Illinois. Out of approximately 44eligible voters, 43 ballots were cast, though onewas cast by an ineligible voter. Not countingthat vote (which was challenged by the Board),another vote (which was challenged by the union),and the “neither nor” vote (which was voided bythe Board), the score was 21 votes in favor ofunion representation and 19 votes against. AmeriCold filed a hatful of objections to theelection, including: Some of the company’s anti-union campaignmaterials were defaced or destroyed. Some of the union’s campaign materials wereunfair. Pro-union campaign literature was distributedwithin 24 hours of the election. Union supporters engaged in intimidation andharassment. Clayton Smart, whose vote was challenged by theunion, was eligible to vote. Former employee Joe Williams, whose vote waschallenged by the NLRB, was ineligible to vote. The “neither nor” vote, which was voided, shouldhave been counted as a vote against the union. The Board’s regional director overruledAmeriCold’s objections without holding anevidentiary hearing. AmeriCold filed exceptionsto the regional director’s report, but the Boarditself adopted the regional director’s findingsand recommendations, again without holding ahearing. During the course of these proceedings,the union conceded that Williams was ineligibleand that Smart’s vote was valid. That meant thatif Smart voted against the union, the tally wouldbe 21-20 for the union. The regional directordeclined to open Smart’s ballot, in keeping withthe Board’s policy to protect the secrecy ofnondeterminative ballots. See, e.g., Monarch Fed.Sav. and Loan Ass’n, 236 N.L.R.B. 874, 1978 WL7765, 2 (1978). AmeriCold filed another round ofobjections that again were rejected by theregional director and another round of exceptionsthat again were rejected by the Board. The Boardthen certified the union as the exclusivebargaining representative of the company’swarehouse and maintenance employees. Refusing to bargain is the only way for anemployer to get judicial review of an NLRBdecision upholding an election and certifying aunion. NLRB v. Service Am. Corp., 841 F.2d 191,193 n.3 (7th Cir. 1988). Accordingly, AmeriColdrefused to bargain, the union filed a charge, theBoard issued a complaint, AmeriCold admittedrefusing to bargain but argued the union wasimproperly certified, and the Board grantedsummary judgment that AmeriCold had violated theNational Labor Relations Act. 29 U.S.C. sec.158(a)(1) and (5). That labyrinthian chain ofevents finally brings us to this appeal, wherethe real issue is whether the NLRB was right infinding that the union won the election fair andsquare. AmeriCold claims that the Board should havenullified the election or, at the least, held anevidentiary hearing to explore further thecompany’s complaints that the union interferedwith a fair election through harassment andintimidation. Aside from that, AmeriCold contendsthat the “neither nor” ballot voided by the Boardshould have been counted as a no vote. AssumingSmart voted against the union, that would knotthe election in a 21-21 tie. And like a baserunner who reaches the bag at the same time asthe ball, a tie goes to the company. See PeterO’Dovero d/b/a Associated Constructors andO’Dovero Constr., Inc., 325 N.L.R.B. 998, 1998 WL380989, 2 (1998). At the outset, we decline AmeriCold’s invitationto modify the standard of review in NLRB cases.We presume the validity of a Board-supervisedelection and will affirm the Board’scertification of a union if that decision issupported by substantial evidence. ClearwaterTransp., Inc. v. NLRB, 133 F.3d 1004, 1008 (7thCir. 1998). Decisions by the Board (including itsregional director) not to hold a hearing on acompany’s objections receive similar deferenceand will be affirmed if supported by substantialevidence. Id. AmeriCold contends that deferenceis unwarranted because the Board never held ahearing at which it made credibilitydeterminations. The rationale for deference isnot limited to the original finder of fact’ssuperior position for making determinations ofcredibility, but also is based on the expertisedeveloped by experience. See Anderson v. BessemerCity, 470 U.S. 564, 574-75 (1985). The highvolume of cases handled by the Board, which wascreated for the very purpose of dealingexpeditiously with these situations, gives it farmore expertise in this area than a circuit courtof appeals. “[A] decision not to hold a hearingwhen confronted with certain evidence amounts toa decision that this evidence is not a primafacie case of enough misconduct to set aside anelection. That is the sort of decision the Boardwas established to make, and to which the courtsmust defer.” NLRB v. Lovejoy Indus., Inc., 904F.2d 397, 402 (7th Cir. 1990). See also NLRB v.Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir.1991). The NLRB must hold a hearing when the employermakes a prima facie showing of misconduct thatwould be sufficient to set aside the election.Id. at 400. AmeriCold has dropped on appeal itsobjections regarding the content, distribution,and defacement of campaign literature. Thecompany’s remaining case that union intimidationinfluenced the election is built on a trio ofslender reeds. First, AmeriCold makes much ado about theappearance on election day of Williams, who hadbeen fired 3 months earlier. The company said itlet Williams go because of his poor work recordand several accidents, but the union filed anunfair labor practice complaint alleging that thedischarge was motivated by Williams’ unionactivities. The unfair labor practice chargelater was settled and the union and the companyagreed that Williams’ vote should not be counted.The legitimacy of his vote always was in doubtbecause he was not on the list of eligiblevoters, prompting the Board agent who conductedthe election to challenge his ballot. How thisincident could have influenced other voters atall–much less to the point where the wholeelection must be wiped out, as the companyargues–is a mystery. Second, the company points to an angry, profaneargument 6 days before the vote between allegedunion supporter Steve Lemmer and professed unionopponent Smart. There is zero evidence that thedispute, which began when Lemmer expressed acertain lack of zest about being at work thatday, had anything to do with the impending unionvote or was connected to the union’s subsequentchallenge of Smart’s ballot. Even if there werea link, the notion that the union chilled thefree choice of other workers by challengingSmart’s vote is farfetched. The union withdrewits challenge and Smart’s vote now would becounted if it were determinative. Just becausethe union’s challenge proved unfounded does notrequire a do-over of the entire election. Third, the company notes that union supporterRick Coil maneuvered his forklift next to TerryRosenbaum several times before the election andextolled the virtues of the union in a mannerthat intimidated and bothered Rosenbaum.AmeriCold also suggests that by appointing Coilas its election observer, the union intimidatedemployees who had to walk past him to cast theirballot. Coil’s work on election day as anobserver does not make him a union agent. Wedefer to the regional director’s finding thatCoil was nothing more than an enthusiastic unionsupporter. See Overnite Transp. Co. v. NLRB, 104F.3d 109, 113 (7th Cir. 1997). For the Board tooverturn the election, Coil’s actions would haveneeded to create such an atmosphere of fear andreprisal that his fellow workers would have beenrendered incapable of voting in a rational,uncoerced manner. Id. Coil’s lobbying ofRosenbaum, even if a bit pushy, does not rise tothe level of bullying that would necessitate ahearing. See Lovejoy, 904 F.2d at 402(“[e]mployees’ apprehension is not itselfsufficient to spoil the vote”). And Coil’spresence as a union election observer apparentlywas not menacing enough to stop 42 of the 44eligible employees from casting their ballots,which of course were secret. These incidents stack up neither to grounds forinvalidating the election nor for ordering anevidentiary hearing. We are unpersuaded by theconjecture and surmise that fills the company’sbrief, such as “less vocal employees could expectthat they would likewise be harassed,” “thiscould not help but have an intimidating effect,”"those who had to pass under Coil’s eye to votecould hardly have felt that they were taking partin a free and fair election,” “such an unexpectedand inappropriate act must have had a chillingeffect,” and “Williams’ presence may have ledother employees to believe the union was tryingto rig the election.” Cf. Clearwater, 133 F.3d at1011 (the employer’s brief “is replete with suchaccusations and hypotheticals, but there is noevidence in the record to establish that they aretrue”). AmeriCold complains that it was unable toestablish that Coil was a union agent andgenerally was prevented from building a strongercase of union intimidation without the compulsorydiscovery that comes with an adversarial hearing.See NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772(9th Cir. 1993). But AmeriCold is not entitled toa hearing just because it wants one, just becauseit claims that the election was tainted, justbecause it says it could really pin things downif it were granted a hearing. The conductprotested by AmeriCold, assuming it took place,is too flimsy to set aside the election and thusfalls short of what is needed to trigger ahearing. The swift resolution of unioncertification disputes would be defeated if theBoard were obliged to conduct an evidentiaryhearing into intimidation every time anineligible voter cast a vote that was notcounted, or every time the union superfluouslychallenged a legitimate ballot, or every time aworker spoke vociferously in favor of a union toco-workers. As Lovejoy, 904 F.2d at 402,explains, our role in deciding when a hearing isappropriate is small. The Board is the bestsuited to make the case-by-case judgment call onwhether the company has presented enough evidenceof objectionable conduct to justify anevidentiary hearing, and we see no reason tooverturn the Board’s decision here. That leaves us with what to make of thepuzzling “neither nor” ballot. If in November aperson fails to pull the lever for Al Gore orGeorge W. Bush or any of the other presidentialcandidates, but instead scrawls an obliquemessage on the ballot, no vote will be counted.The NLRB, however, takes a more liberal approach.See TCI West, Inc. v. NLRB, 145 F.3d 1113, 1117(9th Cir. 1998). The Board’s policy–and the rulein this circuit–is to count ballots when thevoters’ intent is clear, despite irregularitiesin the manner in which the ballots have beenmarked. Brooks Brothers, 316 N.L.R.B. 176, 1995WL 37611, 1 (1995); NLRB v. Martz Chevrolet,Inc., 505 F.2d 968, 971 (7th Cir. 1974). We givedeference to the Board’s interpretation of aballot and will reverse only for abuse ofdiscretion. Clearwater, 133 F.3d at 1008; SiouxProducts, Inc. v. NLRB, 703 F.2d 1010, 1018 (7thCir. 1983). The ballot in this election read: “Do you wishto be represented for purposes of collectivebargaining by — TEAMSTERS LOCAL 325 AFFILIATEDWITH THE INTERNATIONAL BROTHERHOOD OFTEAMSTERS, AFL-CIO . . . MARK AN ‘X’ INTHE SQUARE OF YOUR CHOICE.” Reproduced as Figure 1 at theend of this opinion, the spelling-challengedauthor of the disputed ballot wrote “Neithor Nor”between the yes and no boxes. AmeriCold contends that the “neither nor” meansthat the voter wished to be represented byneither Teamsters Local 325 nor the InternationalBrotherhood of Teamsters and thus the vote shouldgo in the anti-union column. This surely is oneplausible interpretation, though it would be moreplausible if the “neither nor” had been writtenimmediately after the references to the local andinternational union instead of between the yesand no boxes. AmeriCold’s view, however, is not the onlypossible interpretation. Perhaps the voter didn’tcare for the union or the company and wasexpressing his frustration with the seeminginability of people on both sides of almost anyelection these days to behave like civilizedhuman beings. All of this is speculation. Consequently, the Board’s conclusion that thevoter’s intent is ambiguous and the ballot mustbe voided is not at all unreasonable. Unlike theballot at issue in TCI West, 145 F.3d 1113, andthe cases collected therein, this is not asituation where a voter marked–or began marking–one box and then tried to make clear that hereally meant to mark the other box. Because the Board legitimately voided the”neither nor” ballot, the score remains 21-19 infavor of the union, and Smart’s nondeterminativeballot need not be opened. The election stands.The Board is entitled to enforcement of its orderin full. Figure 1
NLRB v. AmeriCold Logistics, Inc. In the United States Court of Appeals For the Seventh Circuit No. 99-2764 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICOLD LOGISTICS, INC., Respondent. Application for Enforcement of Judgment from an Order of the National Labor Relations Board No. 33-CA-12882 Argued April 21, 2000–Decided June 6, 2000 Before BAUER, KANNE, and EVANS, Circuit Judges.
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