Elizabethtown Gas Company (“the Gas Company”) petitions for review of an order of the National Labor Relations Board (“NLRB”) requiring, inter alia, the GasCompany to recognize and bargain with the Communications Workers of America, AFL-CIO (“the Union”). The NLRB brings a cross-application seekingenforcement 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 consideredand rejected the Gas Company’s objections to the election and certified the Union. However, the Gas Company refused to bargain with the Union, challenging thevalidity 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 theUnion, 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) ofthe 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 theUnion. 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 Union. We therefore deny theGas 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 NLRBseeking certification as the collective bar- gaining representative of the Gas Company’s service and dispatch employees in Elizabeth, Perth Amboy, and Union, NewJersey. Fol- lowing the NLRB’s rejection of the Gas Company’s objections,
[FOOTNOTE 1] the NLRB directed that an election by secret ballot be held in which the voters woulddetermine “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-twovoted 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 objectionsrelating to conduct allegedly affecting the results of the election, citing purported misconduct by the NLRB agent who oversaw the election and by the Union duringthe 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 Hearingto gather evidence relating to four of the objections. Pursuant thereto, an NLRB Hearing Officer conducted a one-day hearing on December 16, 1997, during whichthe 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 eightobjections for which no hearing was required. Thereafter, on January 14, 1998, the Gas Company requested NLRB review of the Regional Director’s SecondSupple- mental Decision. Subsequently, on January 28, 1998, the NLRB Hearing Officer submitted a report relating to the four remaining objections on which ahearing had been held, concluding that the objections should be overruled. The Gas Company responded on Feb- ruary 10, 1998, by filing exceptions to the NLRBHearing 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 andadopting the Hearing Officer’s report, thereby over- ruling each of the Gas Company’s objections. This order also included a Certificate of Representation, certifyingthe 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 January11, 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 filedan administra- tive complaint, charging the Gas Company with unfair labor prac- tices, including failing to bargain with a duly certified Union in violation of theNLRA. 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 GasCompany’s) objections to the elec- tion had been improperly overruled. Following the submission of summary judgment briefs, the NLRB, on April 30, 1999, foundfor 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 isreached, “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. Wepossess 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 705, 707 (4th Cir. 1999). Thispresumption reflects Congress’s deci- sion to “entrust[ ] the [NLRB] with a wide degree of discretion in establishing the procedure and safeguards necessary toinsure 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 substituteour 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 isreasonable 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 fairelection. 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 itsown 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 anopportunity 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 overturnthe 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 (4thCir. 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 NLRBabused its discretion in certifying the Union.
[FOOTNOTE 2] For the reasons set forth below, we conclude that none of the Gas Company’s objections, considered individually or intheir 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 theelection, she observed aloud that the pencils to be used for voting were unsharpened. In response, the Gas Compa- ny’s director of customer relations offeredsharpened 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 theNLRB election kit, were the only writing implements that could be utilized in NLRB elections. The Gas Company employee then sharpened the eraserless pencils foruse 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 observedthat 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. Krapfworried 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 avoidthis 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 butinadvertently 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 givena 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 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 thecontrary insofar as the NLRB Casehandling Manual discusses”erasures” in the context of valid ballots. The Gas Company further argues that the lack of erasersdisenfranchised 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 arecontrary 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 noapparent effect on the election. The Gas Company cannot demonstrate that a single voter was disenfranchised by the lack of erasers. Indeed, the lone employeevoter 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 thesecircum- 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 GasCompany 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 Companyfurther 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 GasCompany observer testifying that Agent Tener sealed this first ballot in an envelope and the Union observer testifying that Agent Tener returned the unmarked ballotto the blank ballot pile. Based on these assertions, the Gas Company claims that: (1) Agent Tener should have been required to testify during the administrativehearing in order to resolve the factual disputes; and (2) the election should be overturned. 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 laborpractice 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 hehas been assigned.” Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 731 (D.C. Cir. 1983) (quotations and citation omitted). Consis- tent with the limitedprivilege, 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 NLRBregional 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- dicetherefrom. 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 GeneralCounsel 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 ahearing; signifi- cantly, there was no mention of a “missing” or”spoiled” ballot as a reason necessitating Agent Tener’s testimony.
[FOOTNOTE 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 theagent’s testi- mony. The Gas Company responded that evidence produced at the hearing on December 16th had revealed a second spoiled ballot, thus necessitatingthe agent’s testimony. Again, however, the Regional 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 ofenvelopes involv- ing such. I am declining to provide any information regarding spoiled ballots. Objections filed in this matter made no reference to the issue ofspoiled 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 ofobjec- tionable conduct. None of the Employer’s other objections make reference to spoiled ballots. Accordingly, any allega- tions concerning spoiled ballots arenot within the scope of objections filed herein by the Employer. Clearly, any allega- tions as to objectionable conduct involving spoiled ballots could not be newlydiscovered or previously unavailable to Employer Counsel, which filed extensive objections involv- ing the conduct of the election after what I presume was anexhaustive 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 containedin 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 “spoiledballots,”
[FOOTNOTE 4] none of the Gas Company’s briefs 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 mustbe 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 theGas 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 anyGas 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” wassufficient to preserve the objection. We dis- agree; were a passing reference sufficient to preserve an objection, the objection process would have no worth. Simplyput, 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 shouldnot topple over administrative deci- sions unless the administrative body not only has erred but has erred against objection made at the time appropriate under itspractice.”). Second, the Gas Company claims that its “saving” objection — that “these and all other Union activities which the Board may discover during itsinvestigation which would support the overturning of the election and the order for a new election” (J.A. 229) — preserved the argument. However, we need notresolve whether this form of “saving objection” may preserve the opportunity to amend objections because the Gas Company took no action to either (1) amend itsobjections 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 thehearing on December 16, 1997. For several reasons, this contention also fails to warrant overlooking the Gas Company’s waiver. First, after the Gas Companylearned 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 theadministrative 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 GasCompany 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 GasCompany 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 tointerview 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 factsunderlying the objection, and we, under these circumstances, cannot overlook its waiver.
[FOOTNOTE 5] In short, the Gas Company’s allegations of “spoiled” ballots do not presentan 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 NLRB that there was no need forthe 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 theother 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 otherfactual 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 affirmthe NLRB’s decision declining permission for Agent Tener’s testimony.
[FOOTNOTE 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 thatthis 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 personsobserving 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 ofthe 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- celsior
[FOOTNOTE 7]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 (emphasis in original). The observers signed the instructions to acknowledge that they read them. This same process was repeated prior to the afternoonsession. During the morning session, Agent Tener apparently noticed that the company observer was holding a piece of paper and instructed the observers to place anypapers 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 theobserver 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 firstcompany 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 againinstructed 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 theend 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 advisedthem 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 haveobserved 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 notbe 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 theGas Company lawyer instructed the observers to maintain duplicate lists, although the Gas Company contends that it merely instructed the observers to recordchallenged voters. The Gas Company’s protesta- tions of innocence are undermined by the fact that its lawyer passed the same duplicate voting list — upon whicheach voter during the morning session had been recorded — to the company observer dur- ing the afternoon session. Presumably, the lawyer observed that the listcontained numerous markings but, rather than properly instructing the afternoon observer, merely passed the duplicate list to that observer. It thus appears that theGas 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 arepresentation 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 anerror 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 anelection. 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 noticedthe company observers recording their vote. Thus, ignoring that Agent Tener’s written instructions clearly prohibited the observers from maintaining lists, even ifAgent 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 boxor 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 timeand 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, thecompany asserts that we must demand affirmative testimony 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 theroom 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, evenassuming 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 beaccompanied by an observer for the other side so as to prevent electioneering. In reliance thereon, the Gas Company asserts that the Board Agent erred inpermitting two observers to leave the polling area unescorted. In addition, the Gas Company con- tends that the Union observer spoke with an eligible voter duringthis 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 anemployee, 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 anescort, 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 fairlycharacter- ized as “electioneering,” and no prejudice of any kind can be demon- strated. We therefore also affirm the NLRB on this issue.
[FOOTNOTE 8] 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 suchelection. 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” boxesconstituted 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”; anycommon sense review would compel dismissal of such assertions without pause. More importantly, plainly meritless conten- tions undermine a litigant’s credibilityand 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 inSawyers, 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, simplyno 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 toraise 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 :::FOOTNOTES:::
FN1 The Gas Company contended, inter alia, that the dispatchers were “supervisors” for purposes of the NLRA and therefore could not benefit from the protections ofthe Act.
FN2 In reviewing the Gas Company’s contentions, we are reminded of Judge Craven’s insightful observations, albeit in a different context: “[I]ngenious and diligentcounsel have taken a shotgun approach to the validity [of the proceedings], asserting that reversible error occurred in [numerous] respects. So many points of errorsuggest 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 havecarefully reviewed the Gas Company’s myriad objections to the election.
FN3 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 couldhave 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.
FN4 In declining to address the”spoiled ballot” objection, the NLRB Hear- ing Officer noted: “Exceptions to all rulings, including rulings of the Regional Director, shouldbe contained in the excepting party’s brief to the Board.” J.A. 331.
FN5 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, wewill 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 NLRBto 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 onthe 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 theenvelope. We thus find no abuse of discretion on this issue.
FN6 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 establishedthat 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 aballot. Although we do not resolve the issue, we fail to see how these facts could have constituted a basis to overturn the election.
FN7 The lists are so named because their use was authorized in Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966).
FN8 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, itasserts 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 GasCompany letterhead; (3) the NLRB erred in permitting no absentee bal- 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 anyof them.
Elizabethtown Gas Co. v. NLRB United States Court of Appeals for the Fourth Circuit ELIZABETHTOWN GAS COMPANY, a Division of NUI Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELIZABETHTOWN GAS COMPANY, a Division of NUI Corporation, Respondent. Nos. 99-1801 and 99-1687 On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board 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. Counsel for Elizabethtown Gas: Martin F. Payson and Joseph F. Accardo Counsel for NLRB: David A. Seid and Frederick L. Feinstein
