UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YUASA EXIDE, INCORPORATED,
Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD;
                                                                    No. 96-1511
Respondent,

INTERNATIONAL UNION OF ELECTRONIC,
ELECTRICAL, SALARIED, MACHINE AND
FURNITURE WORKERS, AFL-CIO,
Intervenor.

NATIONAL LABOR RELATIONS BOARD;
Petitioner,

INTERNATIONAL UNION OF ELECTRONIC,
ELECTRICAL, SALARIED, MACHINE AND
FURNITURE WORKERS, AFL-CIO,
                                                                    No. 96-1467
Intervenor,

v.

YUASA EXIDE, INCORPORATED,
Respondent.

On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations Board.
(11-CA-16851)

Argued: March 5, 1997

Decided: August 5, 1997

Before HALL and ERVIN, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
 6350 35 11 Western District of Virginia, sitting by designation.
Petition for review denied and enforcement granted by unpublished
per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Steven Warren, JACKSON, LEWIS, SCHNITZ-
LER & KRUPMAN, Greenville, South Carolina, for Petitioner. Mere-
dith L. Jason, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent. Peter Edward Mitchell, Associate
General Counsel, INTERNATIONAL UNION OF ELECTRONIC,
ELECTRICAL, SALARIED, MACHINE AND FURNITURE
WORKERS, AFL-CIO, Washington, D.C., for Intervenor. ON
BRIEF: Stephen F. Fisher, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Greenville, South Carolina, for Petitioner. Frederick L.
Feinstein, General Counsel, Linda Sher, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Linda
Dreeben, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Yuasa Exide, Inc., petitions for review of the National Labor Rela-
tions Board's decision and order directing that it bargain with the
International Union of Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL-CIO as the certified representative of the
employees at Yuasa's plant in Sumter, South Carolina. The Board
cross-applies for enforcement of its order, and we have granted the
Union leave to intervene in support of the Board. We hold that the
Board properly certified the result of the representation election con-
ducted at the Sumter plant, at which a majority of the eligible employ-

                    2
ees voted in favor of the Union; we therefore grant the Board's cross-
application for enforcement.

I.

Yuasa commenced its Sumter operations in June 1991, after its
Japanese parent purchased Exide Corporation's industrial battery
division. The Union's efforts to organize the approximately 400 pro-
duction and maintenance employees at the Sumter plant culminated
in a representation election, conducted by secret ballot on February
23, 1995. The initial vote tally was 197-183 for the Union, not count-
ing seventeen challenged ballots: two by Yuasa, six by the Union, and
nine by the Board Agent. Following the hotly contested election, the
parties availed themselves of the Board's appellate process; through-
out April 1995, a hearing officer took evidence and considered argu-
ments regarding the ballot challenges and additional objections
lodged by Yuasa concerning the Union's activities during the cam-
paign.

Yuasa and the Union withdrew their respective challenges to the
Board Agent's acceptance of two ambiguously marked ballots, bring-
ing the count to 198-184, with fifteen votes contested. The hearing
officer's report, issued on May 23, 1995, recommended that all but
two of the fifteen challenges be overruled, and that those thirteen bal-
lots be opened and counted. The hearing officer also recommended
that the entirety of Yuasa's remaining objections to the election's
validity be rejected.

On appeal by Yuasa, a three-member panel of the Board adopted
the hearing officer's recommendations as to both"sustained" chal-
lenges. Inasmuch as the thirteen remaining ballots were insufficient
in number to affect the outcome of the election, the Board decided
that they should remain sealed and effectively disregarded.1 The
Board concurred in the hearing officer's conclusion that Yuasa's
complaints of campaigning improprieties were not of sufficient merit
_________________________________________________________________
1 Though irrelevant to the outcome of the proceedings, the Board
adopted, pro forma, the hearing officer's recommendations regarding
seven of the thirteen "overruled" challenges to which Yuasa had noted
no exception.

                    3
to require a new election. Hence, on December 4, 1995, the Board
certified the Union as the bargaining representative of the employees
at the Sumter plant.

Four days following its certification by the Board, the Union sent
a letter to Yuasa, demanding that it bargain. The company refused,
and the Union promptly filed an unfair labor practice charge with the
Board. In response to the Board's formal complaint, Yuasa reiterated
its belief that the election was invalid, and, as a result, that it was not
required to bargain. The matter proceeded before a second panel of
the Board, which, on April 5, 1996, issued a decision and order grant-
ing summary judgment to the Board's counsel and directing Yuasa to
bargain with the Union. Yuasa now petitions us for review of the
Board's order; the Board cross-applies for enforcement.

II.

The results of a Board-certified representation election are pre-
sumptively valid. NLRB v. VSA, Inc., 24 F.3d 588, 591 (4th Cir.
1994). To overcome the presumption of validity, the challenging
party must adduce specific evidence that unlawful acts occurred, and
it must demonstrate that those acts "sufficiently inhibited the free
choice of employees as to affect materially the results of the election."
Id. at 591-92; NLRB v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th Cir.
1987) (citation omitted). We review a certification order to ensure
only that the Board has not abused its discretion. VSA, 24 F.3d at 592.
If the Board's decision is reasonable and, in the context of the entire
record, is supported by substantial evidence, then it must be enforced.
Hydrotherm, 824 F.2d at 334.

A.

All thirteen of the challenges overruled by the hearing officer
involved ballots cast by "lead hands," employees positioned above
ordinary line workers but subordinate to those designated as supervi-
sors. Yuasa contended that nine of the thirteen lead hands were de
facto supervisors, ineligible to vote. See 29 U.S.C.A. §§ 159(e) (rep-
resentation elections conducted by secret ballot of the "employees" in

                     4
a bargaining unit) and 152(3) ("The term`employee' . . . shall not
include . . . any individual employed as a supervisor[.]") (West 1973).2

The ballots cast by the other four lead hands were challenged by
the Union. It was later revealed that the challenges were not engen-
dered by any serious contention that the employees were supervisors,
but were instead motivated by the Union's asserted belief that all of
the lead hands should be classified the same. At oral argument, Yuasa
primarily focused on the Union's actions regarding these four ballots;
it maintained that the challenges were not made for sufficient cause,
as required by the Board's regulations. See 29 C.F.R. § 102.69(a)
(1996) ("Any party and Board agents may challenge, for good cause,
the eligibility of any person to participate in the election.") (emphasis
supplied).

We need not decide whether the reason proffered by the Union in
support of its challenges constitutes good cause, for it is plain that
Yuasa cannot show that the challenges materially affected the results
of the election. In gamely attempting to carry its burden, Yuasa con-
tends that the challenge process -- where the contested ballots are
marked with the employee's name and segregated from the others --
stigmatizes the voter. According to Yuasa, the procedure necessarily
compromises the secrecy of the ballots; it therefore should not be
undertaken lightly, because the risk of identification may have a
"chilling effect" on the employees' willingness to participate in the
election.

Yuasa's argument fails at the outset, because (1) the challenged
ballots remain sealed, and therefore secret; and (2) 395 of approxi-
mately 398 eligible employees actually voted in the election, conclu-
sively demonstrating the absence of any "chilling effect" attributable
to the Union's challenges (or indeed, to any other source). Even had
the challenged ballots been opened and counted, it is doubtful that
Yuasa could show that the incremental compromise of secrecy repre-
_________________________________________________________________
2 The ballots cast by eight of these nine lead hands were initially chal-
lenged by the Board Agent on the ground that the employees' names did
not appear on the "Excelsior list" submitted by Yuasa, designating those
that the company considered eligible to vote. See Excelsior Underwear,
156 NLRB 1236 (1966).

                     5
sented by the four Union challenges -- over and above the nine indis-
putably legitimate ones -- tipped the scales in favor of a conclusion
that the results of the election did not represent the will of the
employees.3

B.

Notwithstanding that the ballots cast by the lead hands were not so
numerous as to have altered the result of the voting, Yuasa maintains
that the pro-Union activities of two of those lead hands, Sidney
Roberson and John Geter, whom it asserts were actually supervisors,
were sufficiently coercive to justify the election's annulment. See
Turner's Express, Inc. v. NLRB, 456 F.2d 289, 291 (4th Cir. 1972)
(pressure and coercion exerted by supervisors may deny employees
a free and fair opportunity to decide whether they will be represented
by a collective bargaining agent, though the untoward influence is not
shown to have affected the election results).

In NLRB v. Manufacturer's Packaging Co., Inc., 645 F.2d 223,
225-26 (4th Cir. 1981), we explained that Turner's Express did not
announce "a per se rule invalidating a union election if there is any
evidence of pro-union supervisory activity." Rather, each case must
_________________________________________________________________
3 Yuasa asserts that our decision in Electronic Components Corp. v.
NLRB, 546 F.2d 1088 (4th Cir. 1976), stands for the proposition that a
violation of the Board's rules or regulations requires that an election be
set aside, even absent proof that the results were materially affected. We
do not believe that Electronic Components can be read so broadly. In that
case, the employer objected to the certification of the representation elec-
tion on several grounds, and it submitted a letter to the Board summariz-
ing the evidence in support of its objections. The Regional Director,
without conducting the investigation required by 29 C.F.R. § 102.69(c),
recommended that the objections be overruled; the Board adopted the
Regional Director's recommendations.

We remanded, directing that the Regional Director properly investi-
gate the matter. We did not, however, set aside the election. Such a rem-
edy would have been premature, inasmuch as there had not been any
showing that the employer's allegations were true, let alone that the
results of the election had been thereby materially affected. In sum,
Electronic Components lends no support to Yuasa's position.

                    6
be examined in light of the facts and circumstances peculiar to it in
order to determine "whether the supervisors' pro-union activities pre-
vented employees from freely effectuating their collective choice." Id.
at 226 (citation omitted).

The Board adopted the hearing officer's finding that Roberson and
Geter were not supervisors. We need not address the correctness of
that finding, however, because it is evident that the pair's activities on
behalf of the Union do not begin to approach the egregiousness of
those resulting in the invalidation of the election in Turner's Express.
In that case, two shop foremen were largely responsible for bringing
in a union organizer, and they intimidated and threatened employees
they perceived as not supporting the organization efforts.

The activities of Roberson and Geter pale by comparison. The
hearing officer found that Roberson attended organizational meetings
and a Union-sponsored barbecue, was present on one occasion when
Union literature was being distributed at the plant gate, and that he
wore a pin and otherwise openly acknowledged his support for the
Union. The evidence revealed that the extent of Roberson's personal
contacts with his co-workers concerning the Union was limited to ful-
filling one employee's request for a Union authorization card, inviting
a second employee to a Union meeting and a third to the barbecue,
and asking a fourth employee -- prior to the onset of the campaign
-- whether he intended to join the Union. Geter did even less: he
merely attended the barbecue, and, during the course of the campaign,
divulged his support of the Union to approximately ten other employ-
ees in his department.

The activities of Roberson and Geter are far more comparable to
those adjudged inconsequential in Manufacturer's Packaging. In that
case, supervisors distributed a small number of union cards, wore
union buttons, attended union meetings, and made pro-union state-
ments. We hold now, as we did then, that, absent a showing that such
activities "contain[ed] the seeds of potential reprisal, punishment, or
intimidation," id. at 226 (citations omitted), it cannot be concluded
that the employees' free choice was in any way impaired.

III.

Yuasa complains of various incidents occurring during the cam-
paign that it attributes to the Union, including the mailing and distri-

                     7
bution of allegedly inflammatory campaign literature and a nasty
coffee-break confrontation between employees of divergent view-
points. These matters were fully developed before the hearing officer,
who determined that Yuasa's contentions lacked substantial merit; the
Board adopted the hearing officer's conclusions. We have carefully
reviewed the record and the arguments of the parties, and we agree
that none of Yuasa's objections to the campaign tactics employed by
the Union and/or others call into question the validity of the election
results.

IV.

Yuasa's petition for review is denied, and the Board's cross-
application for enforcement of its decision and order of April 5, 1996,
is granted.

PETITION FOR REVIEW DENIED
AND ENFORCEMENT GRANTED

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