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.

  EVANS, Circuit Judge. Marking an X in either the
"yes" or "no" box of a ballot might not seem like
a particularly demanding task. But in this labor
election on whether to unionize, one ingenious
worker forsook those unimaginative choices,
ignored the ballot’s clearly written directions,
and instead scribbled "neither nor" on his
ballot, creating a quandary that put the outcome
of the election in doubt.

  In April 1998 the National Labor Relations
Board conducted a secret ballot election to
decide whether employees of AmeriCold Logistics,
Inc. wished to be represented by Teamsters Local
325, affiliated with the International
Brotherhood of Teamsters, AFL-CIO. AmeriCold
operates a refrigerated food warehouse in
Rochelle, Illinois. Out of approximately 44
eligible voters, 43 ballots were cast, though one
was cast by an ineligible voter. Not counting
that vote (which was challenged by the Board),
another vote (which was challenged by the union),
and the "neither nor" vote (which was voided by
the Board), the score was 21 votes in favor of
union representation and 19 votes against.

  AmeriCold filed a hatful of objections to the
election, including:

Some of the company’s anti-union campaign
materials were defaced or destroyed.

Some of the union’s campaign materials were
unfair.

Pro-union campaign literature was distributed
within 24 hours of the election.

Union supporters engaged in intimidation and
harassment.

Clayton Smart, whose vote was challenged by the
union, was eligible to vote.

Former employee Joe Williams, whose vote was
challenged by the NLRB, was ineligible to vote.

The "neither nor" vote, which was voided, should
have been counted as a vote against the union.

  The Board’s regional director overruled
AmeriCold’s objections without holding an
evidentiary hearing. AmeriCold filed exceptions
to the regional director’s report, but the Board
itself adopted the regional director’s findings
and recommendations, again without holding a
hearing. During the course of these proceedings,
the union conceded that Williams was ineligible
and that Smart’s vote was valid. That meant that
if Smart voted against the union, the tally would
be 21-20 for the union. The regional director
declined to open Smart’s ballot, in keeping with
the Board’s policy to protect the secrecy of
nondeterminative ballots. See, e.g., Monarch Fed.
Sav. and Loan Ass’n, 236 N.L.R.B. 874, 1978 WL
7765, *2 (1978). AmeriCold filed another round of
objections that again were rejected by the
regional director and another round of exceptions
that again were rejected by the Board. The Board
then certified the union as the exclusive
bargaining representative of the company’s
warehouse and maintenance employees.

  Refusing to bargain is the only way for an
employer to get judicial review of an NLRB
decision upholding an election and certifying a
union. NLRB v. Service Am. Corp., 841 F.2d 191,
193 n.3 (7th Cir. 1988). Accordingly, AmeriCold
refused to bargain, the union filed a charge, the
Board issued a complaint, AmeriCold admitted
refusing to bargain but argued the union was
improperly certified, and the Board granted
summary judgment that AmeriCold had violated the
National Labor Relations Act. 29 U.S.C. sec.
158(a)(1) and (5). That labyrinthian chain of
events finally brings us to this appeal, where
the real issue is whether the NLRB was right in
finding that the union won the election fair and
square.
  AmeriCold claims that the Board should have
nullified the election or, at the least, held an
evidentiary hearing to explore further the
company’s complaints that the union interfered
with a fair election through harassment and
intimidation. Aside from that, AmeriCold contends
that the "neither nor" ballot voided by the Board
should have been counted as a no vote. Assuming
Smart voted against the union, that would knot
the election in a 21-21 tie. And like a base
runner who reaches the bag at the same time as
the ball, a tie goes to the company. See Peter
O’Dovero d/b/a Associated Constructors and
O’Dovero Constr., Inc., 325 N.L.R.B. 998, 1998 WL
380989, *2 (1998).

  At the outset, we decline AmeriCold’s invitation
to modify the standard of review in NLRB cases.
We presume the validity of a Board-supervised
election and will affirm the Board’s
certification of a union if that decision is
supported by substantial evidence. Clearwater
Transp., Inc. v. NLRB, 133 F.3d 1004, 1008 (7th
Cir. 1998). Decisions by the Board (including its
regional director) not to hold a hearing on a
company’s objections receive similar deference
and will be affirmed if supported by substantial
evidence. Id. AmeriCold contends that deference
is unwarranted because the Board never held a
hearing at which it made credibility
determinations. The rationale for deference is
not limited to the original finder of fact’s
superior position for making determinations of
credibility, but also is based on the expertise
developed by experience. See Anderson v. Bessemer
City, 470 U.S. 564, 574-75 (1985). The high
volume of cases handled by the Board, which was
created for the very purpose of dealing
expeditiously with these situations, gives it far
more expertise in this area than a circuit court
of appeals. "[A] decision not to hold a hearing
when confronted with certain evidence amounts to
a decision that this evidence is not a prima
facie case of enough misconduct to set aside an
election. That is the sort of decision the Board
was established to make, and to which the courts
must defer." NLRB v. Lovejoy Indus., Inc., 904
F.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 employer
makes a prima facie showing of misconduct that
would be sufficient to set aside the election.
Id. at 400. AmeriCold has dropped on appeal its
objections regarding the content, distribution,
and defacement of campaign literature. The
company’s remaining case that union intimidation
influenced the election is built on a trio of
slender reeds.
  First, AmeriCold makes much ado about the
appearance on election day of Williams, who had
been fired 3 months earlier. The company said it
let Williams go because of his poor work record
and several accidents, but the union filed an
unfair labor practice complaint alleging that the
discharge was motivated by Williams’ union
activities. The unfair labor practice charge
later was settled and the union and the company
agreed that Williams’ vote should not be counted.
The legitimacy of his vote always was in doubt
because he was not on the list of eligible
voters, prompting the Board agent who conducted
the election to challenge his ballot. How this
incident could have influenced other voters at
all--much less to the point where the whole
election must be wiped out, as the company
argues--is a mystery.

  Second, the company points to an angry, profane
argument 6 days before the vote between alleged
union supporter Steve Lemmer and professed union
opponent Smart. There is zero evidence that the
dispute, which began when Lemmer expressed a
certain lack of zest about being at work that
day, had anything to do with the impending union
vote or was connected to the union’s subsequent
challenge of Smart’s ballot. Even if there were
a link, the notion that the union chilled the
free choice of other workers by challenging
Smart’s vote is farfetched. The union withdrew
its challenge and Smart’s vote now would be
counted if it were determinative. Just because
the union’s challenge proved unfounded does not
require a do-over of the entire election.

  Third, the company notes that union supporter
Rick Coil maneuvered his forklift next to Terry
Rosenbaum several times before the election and
extolled the virtues of the union in a manner
that intimidated and bothered Rosenbaum.
AmeriCold also suggests that by appointing Coil
as its election observer, the union intimidated
employees who had to walk past him to cast their
ballot. Coil’s work on election day as an
observer does not make him a union agent. We
defer to the regional director’s finding that
Coil was nothing more than an enthusiastic union
supporter. See Overnite Transp. Co. v. NLRB, 104
F.3d 109, 113 (7th Cir. 1997). For the Board to
overturn the election, Coil’s actions would have
needed to create such an atmosphere of fear and
reprisal that his fellow workers would have been
rendered incapable of voting in a rational,
uncoerced manner. Id. Coil’s lobbying of
Rosenbaum, even if a bit pushy, does not rise to
the level of bullying that would necessitate a
hearing. See Lovejoy, 904 F.2d at 402
("[e]mployees’ apprehension is not itself
sufficient to spoil the vote"). And Coil’s
presence as a union election observer apparently
was not menacing enough to stop 42 of the 44
eligible employees from casting their ballots,
which of course were secret.

  These incidents stack up neither to grounds for
invalidating the election nor for ordering an
evidentiary hearing. We are unpersuaded by the
conjecture and surmise that fills the company’s
brief, such as "less vocal employees could expect
that they would likewise be harassed," "this
could not help but have an intimidating effect,"
"those who had to pass under Coil’s eye to vote
could hardly have felt that they were taking part
in a free and fair election," "such an unexpected
and inappropriate act must have had a chilling
effect," and "Williams’ presence may have led
other employees to believe the union was trying
to rig the election." Cf. Clearwater, 133 F.3d at
1011 (the employer’s brief "is replete with such
accusations and hypotheticals, but there is no
evidence in the record to establish that they are
true").

  AmeriCold complains that it was unable to
establish that Coil was a union agent and
generally was prevented from building a stronger
case of union intimidation without the compulsory
discovery 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 to
a hearing just because it wants one, just because
it claims that the election was tainted, just
because it says it could really pin things down
if it were granted a hearing. The conduct
protested by AmeriCold, assuming it took place,
is too flimsy to set aside the election and thus
falls short of what is needed to trigger a
hearing. The swift resolution of union
certification disputes would be defeated if the
Board were obliged to conduct an evidentiary
hearing into intimidation every time an
ineligible voter cast a vote that was not
counted, or every time the union superfluously
challenged a legitimate ballot, or every time a
worker spoke vociferously in favor of a union to
co-workers. As Lovejoy, 904 F.2d at 402,
explains, our role in deciding when a hearing is
appropriate is small. The Board is the best
suited to make the case-by-case judgment call on
whether the company has presented enough evidence
of objectionable conduct to justify an
evidentiary hearing, and we see no reason to
overturn the Board’s decision here.

  That leaves us with what to make of the
puzzling "neither nor" ballot. If in November a
person fails to pull the lever for Al Gore or
George W. Bush or any of the other presidential
candidates, but instead scrawls an oblique
message 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 rule
in this circuit--is to count ballots when the
voters’ intent is clear, despite irregularities
in the manner in which the ballots have been
marked. Brooks Brothers, 316 N.L.R.B. 176, 1995
WL 37611, *1 (1995); NLRB v. Martz Chevrolet,
Inc., 505 F.2d 968, 971 (7th Cir. 1974). We give
deference to the Board’s interpretation of a
ballot and will reverse only for abuse of
discretion. Clearwater, 133 F.3d at 1008; Sioux
Products, Inc. v. NLRB, 703 F.2d 1010, 1018 (7th
Cir. 1983).

  The ballot in this election read: "Do you wish
to be represented for purposes of collective
bargaining by -- TEAMSTERS LOCAL 325 AFFILIATED
WITH THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFL-CIO . . . MARK AN ’X’ IN
THE SQUARE OF YOUR CHOICE." Reproduced as Figure 1 at the
end of this opinion, the spelling-challenged
author of the disputed ballot wrote "Neithor Nor"
between the yes and no boxes.

  AmeriCold contends that the "neither nor" means
that the voter wished to be represented by
neither Teamsters Local 325 nor the International
Brotherhood of Teamsters and thus the vote should
go in the anti-union column. This surely is one
plausible interpretation, though it would be more
plausible if the "neither nor" had been written
immediately after the references to the local and
international union instead of between the yes
and no boxes.

  AmeriCold’s view, however, is not the only
possible interpretation. Perhaps the voter didn’t
care for the union or the company and was
expressing his frustration with the seeming
inability of people on both sides of almost any
election these days to behave like civilized
human beings. All of this is speculation.

  Consequently, the Board’s conclusion that the
voter’s intent is ambiguous and the ballot must
be voided is not at all unreasonable. Unlike the
ballot at issue in TCI West, 145 F.3d 1113, and
the cases collected therein, this is not a
situation where a voter marked--or began marking-
-one box and then tried to make clear that he
really meant to mark the other box.

  Because the Board legitimately voided the
"neither nor" ballot, the score remains 21-19 in
favor of the union, and Smart’s nondeterminative
ballot need not be opened. The election stands.
The Board is entitled to enforcement of its order
in full.
Figure 1
