214 F.3d 935 (7th Cir. 2000)
NATIONAL LABOR RELATIONS BOARD,    Petitioner,v.AMERICOLD LOGISTICS, INC.,    Respondent.
No. 99-2764
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 21, 2000
Decided June 6, 2000

Application for Enforcement of Judgment  from an Order of the National Labor Relations Board  No. 33-CA-12882 Before BAUER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge.


1
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.


2
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.


3
AmeriCold filed a hatful of objections to the  election, including:


4
Some of the company's anti-union campaign  materials were defaced or destroyed.


5
Some of the union's campaign materials were  unfair.


6
Pro-union campaign literature was distributed  within 24 hours of the election.


7
Union supporters engaged in intimidation and  harassment.


8
Clayton Smart, whose vote was challenged by the  union, was eligible to vote.


9
Former employee Joe Williams, whose vote was  challenged by the NLRB, was ineligible to vote.


10
The "neither nor" vote, which was voided, should  have been counted as a vote against the union.


11
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.


12
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.


13
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).


14
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).


15
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.


16
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.


17
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.


18
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.


19
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").


20
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.


21
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).


22
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.


23
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.


24
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.


25
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.


26
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

27
[Tabular or Graphical Material Omitted]

