                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 04-2300



VALCOURT BUILDING SERVICES, INC., which also
may be correctly and legally known as VALCOURT
EXTERIOR BUILDING SERVICES OF NEW JERSEY, LC,

                                                  Petitioner,

     versus

NATIONAL LABOR RELATIONS BOARD,

                                                  Respondent,

PAINTERS DISTRICT COUNCIL 711,

                                                  Intervenor.



                             04-2459



NATIONAL LABOR RELATIONS BOARD,

                                                  Petitioner,

     and

PAINTERS DISTRICT COUNCIL 711,

                                                  Intervenor,

     versus

VALCOURT EXTERIOR BUILDING SERVICES OF NEW
JERSEY, LC,

                                                  Respondent.
On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (22-CA-26491; 99-CA-
26491)


Argued:   May 24, 2005                     Decided:   June 24, 2005


Before WIDENER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.


ARGUED: James Joseph Kelley, II, MORGAN, LEWIS & BOCKIUS, L.L.P.,
Washington, D.C., for Valcourt Exterior Building Services of New
Jersey, L.C.     Jason Walta, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.      Robert F. O’Brien, O’BRIEN,
BELLAND & BUSHINSKY, L.L.C., Northfield, New Jersey, for Painters
District Council 711. ON BRIEF: Adrienne A. Brown, MORGAN, LEWIS
& BOCKIUS, L.L.P., Washington, D.C., for Valcourt Exterior Building
Services of New Jersey, L.C. Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, David Habenstreit, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.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




                                2
PER CURIAM:

     Valcourt Building Services, Inc. petitions for review of an

order of the National Labor Relations Board (NLRB).       The NLRB

cross-appeals, seeking enforcement of its order.   For the reasons

that follow, we deny Valcourt’s petition for review and grant the

NLRB’s cross-application for enforcement of its order.



                                I.

     On October 8, 2003, a group of Valcourt employees voted 28-21

(with four challenged ballots going uncounted) to be represented by

the Painters District Council 711 (the Union).

     Prior to the election, Valcourt and the Union had entered into

an agreement, which provided in relevant part that:    “Each party

may station an equal number of authorized, nonsupervisory-employee

observers at the polling places to assist in the election, to

challenge the eligibility of voters, and to verify the tally.”

Regarding election observers, the NLRB Casehandling Manual (CHM)

states:   “Observers should be employees of the employer, unless a

party’s use of an observer who is not a current employee of the

employer is reasonable under the circumstances.       A supervisor

should not serve as an observer.” NLRB Casehandling Manual, pt. 2,

Representation Proceedings § 11310.2 (1999) (citations omitted),

available at http://www.nlrb.gov/nlrb/legal/manuals/chm2-7.pdf.


                                 3
     Valcourt designated Carlos Guevara, an employee, to serve as

its election observer.       The Union, however, designated as its

observer William Geldhauser, a retired union member, who had never

worked for the company but had previously served as a business

agent   of   the   Union.   Following   the   election,   Valcourt   filed

objections with the NLRB Regional Director, asserting that the

service of Geldhauser as the Union’s designated observer and use by

Geldhauser of a “private, non-NLRB check list during the course of

the election” improperly interfered with the election.         The Union

intervened in the case.

     On November 17 and 19, 2003, an NLRB hearing officer heard

testimony from numerous witnesses on Valcourt’s objections.            At

that hearing, Peter Cipparulo, the Union’s director of organizing,

testified that he tried to find a Valcourt employee to serve as the

Union’s observer, but “nobody would” do it because “they were

scared to come forward.”     Thus, several days before the election,

Cipparulo called Geldhauser and asked him to serve as the Union’s

observer.     “I wanted somebody that was not affiliated with the

Union,” he said.     “I wanted somebody that didn’t speak Spanish, so

that there wasn’t any concern did he communicate with them.          And I

tried to make it as far removed from the Union as I could and had

no ties to the Union outside of being a previous member.”

     Cipparulo further testified that the primary reason he wanted

an observer at the election was to challenge four specific ballots.


                                   4
Geldhauser’s testimony corroborated this explanation.                Geldhauser

testified that he brought with him to the election a “four-inch by

four-inch piece of paper” on which he had written the names of four

people   whom   Cipparulo   had   asked    him    to   challenge.        Valcourt

witnesses    disputed     Geldhauser’s     description       of    his   list   as

inconspicuous, and further contended that the list was clearly

visible to voters in the election.

       On January 8, 2004, the hearing officer issued a lengthy and

thorough    report,     recommending   that      Valcourt’s       objections    be

overruled. The hearing officer found that Geldhauser “testified in

a forthright manner” and was a “far more credible witness than the

five   employee   witnesses    called”     by    Valcourt,    who   “repeatedly

contradicted themselves.”         The hearing officer determined that

“none of the voters recognized Geldhauser or anticipated that he

would ever be in a position to influence their terms or conditions

of employment.”       With respect to Geldhauser’s list, the hearing

officer further found:

       Geldhauser maintained a handwritten list of four voters
       he intended to challenge. He did not check off the names
       of voters, record their names, or make comments about the
       voters. There is no evidence that Geldhauser knew which
       voters supported the Union, which voters did not, or
       which voters (if any) had documentation problems
       pertaining to their immigration status.      Further, he
       endeavored to conceal his private list by keeping it
       under the table, as directed by Board agents . . . .
       The record reflects that these efforts were largely
       successful. For this reason, most witnesses were unable
       to describe Geldhauser’s list or estimate the number of
       names it contained. In fact, all five employee witnesses


                                       5
     admitted that they never saw any of the names on the
     list.

J.A. 292-93 (footnote omitted). After Valcourt filed exceptions to

the report, the Board adopted the hearing officer’s findings and

recommendations   and    certified       the   Union    as   the    “exclusive

collective-bargaining representative of . . . [a]ll restoration

division   mechanics    including   foremen     and    drivers     employed   by

[Valcourt].”

     Following efforts by the Union to bargain with Valcourt, and

Valcourt’s refusal to recognize the Union as the representative of

its employees, the General Counsel of the NLRB filed suit against

Valcourt for violating Sections 8(a)(1) and (5) of the National

Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(1), (5) (2000). On

September 30, 2004, the Board granted the General Counsel’s motion

for summary judgment and ordered Valcourt to bargain with the

Union.   Valcourt then filed this petition for review and the NLRB

filed a cross-application for enforcement of the Board’s order.



                                    II.

     The issue presented to us is whether the Board abused its

discretion in certifying the Union as the duly elected collective

bargaining representative and therefore erred in finding Valcourt

to have violated §§ 8(a)(1) and (5) of the NLRA.                 We “presume a

Board-supervised election to be valid, and . . . may overturn such

an election only if the Board has clearly abused its discretion.”

                                     6
NLRB v. Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir.

2004).      We have explained that the presumption of validity of

Board-certified elections:

     is not an insubstantial presumption; it can be overcome
     only by presentation of specific evidence not only that
     the alleged acts of interference occurred but also that
     such acts sufficiently inhibited the free choice of
     employees as to affect materially the results of the
     election.   And the burden is on . . . the objecting
     party, to show that the challenged activity prejudiced
     the outcome of the election.      Significantly, if the
     Board’s certification decision is reasonable and based on
     substantial evidence in the record as a whole, then our
     inquiry is at an end.     Given this rigorous standard,
     courts appropriately proceed with judicial caution before
     overturning a representation election.

NLRB v. VSA, Inc., 24 F.3d 588, 591-92 (4th Cir. 1994) (internal

quotation marks and citations omitted).

     Valcourt specifically disclaims any challenge to the “factual

and credibility determinations” made by the hearing officer and

adopted by the Board.     Rather, the company contends only that

certain alleged legal errors, either “alone” or “in the aggregate”

require “setting aside the election.”



                                A.

     First, Valcourt challenges the service of Geldhauser, a non-

employee and former Union business agent, as the designated Union

observer.     Valcourt asserts that, because the designation of

Geldhauser assertedly violates the CHM and the stipulated election




                                 7
agreement, we must set aside the election.                      The argument is

meritless.

     We note at the outset that it is not at all clear that the

designation of Geldhauser violates either the CHM or the stipulated

agreement.        The CHM merely provides that “[o]bservers should be

employees of the employer, unless a party’s use of an observer who

is not a current employee of the employer is reasonable under the

circumstances.”           NLRB    Casehandling       Manual,   supra,      §    11310.2

(emphases     added).            Here,    Cipparulo     provided     a     reasonable

explanation for the use of Geldhauser: the Union could find no

Valcourt employee to serve as the Union’s observer, since “the[]

[employees]       were    scared     to    come    forward.”        Similarly,     the

stipulated    agreement         simply     permits    each   party    to   designate

“nonsupervisory-employee observers.”                   At the very least, this

phrase is ambiguous: it could, as Valcourt contends, require that

observers be employees who are not supervisory employees, or it

could simply ban the use of supervisory employees as observers.

     Furthermore, even if the Union’s designation of Geldhauser did

violate     the    CHM    and     the     stipulated    agreement,       this    minor

irregularity       does    not    require       invalidation   of    the   election.

Indeed, the authority on which Valcourt itself relies directly

supports our conclusion.                 For example, in NLRB v. Black Bull

Carting Inc., 29 F.3d 44 (2d Cir. 1994), the court refused to

overturn a representation election even though a union official


                                            8
served as the union’s election observer and the CHM in effect at

the time did require that observers be “‘non-supervisory employees

of   the   employer,    unless   a   written      agreement’      by    the   parties

‘provides    otherwise.’”        Id.      at   45-46.     The     Second      Circuit

explained:

       A party seeking to overturn an election on the ground of
       a procedural irregularity has a heavy burden.        The
       presence of such an irregularity is not in itself
       sufficient to overturn an election. Nor is it sufficient
       for a party to show merely a ‘possibility’ that the
       election was unfair. Rather, the challenger must come
       forward with evidence of actual prejudice resulting from
       the challenged circumstances.

Id. at 46 (citations omitted).            Similarly, another decision relied

on by Valcourt, D.E.O. Enters., Inc., 309 NLRB 578, 579 (1992),

holds that even though use of a former supervisor-employee as a

union election observer constituted “a technical breach of the

Stipulated Election Agreement,” the breach did not require that the

election be overturned because “the breach was neither material nor

made in bad faith.”



                                       B.

       Valcourt also argues that Geldhauser’s maintenance of an

assertedly impermissible list constitutes ground for setting aside

the election.    Valcourt bases this argument on a purported “per se

rule   against   list    keeping     of     any   kind   during    an    election.”

However, no such rule exists.          Again, even the authority relied on

by Valcourt contradicts its position.              See Days Inn Mgmt. Co. v.

                                          9
NLRB, 930 F.2d 211, 214 (2d Cir. 1991) (holding that “use of a list

containing names of eligible voters must be viewed in its context

and may not be considered a per se violation of Section 8(a)(1)”).

     Furthermore, the Board has specifically ruled that use of a

list for the purpose of keeping track of voter challenges is

permitted.   As the Board has explained:

     It is well established that the keeping of a list of who
     has or has not voted, aside from the official Excelsior
     list, may be grounds for setting aside an election. The
     purpose of this prohibition is to protect employees from
     fear of reprisal or discipline because they did or did
     not vote. However, the Board has long recognized the
     right to refer to a challenge list as an exception to the
     general prohibition against keeping lists, in order to
     ensure that the parties have a full opportunity to
     challenge the ballots of voters they believe to be
     ineligible.

Mead Coated Board, Inc., 337 NLRB 497, 497-98 (2002) (citations

omitted); see also St. Elizabeth Cmty. Hosp. v. NLRB, 708 F.2d

1436,    1443-44 (9th Cir. 1983); Sound Refining, Inc., 267 NLRB

1301, 1301 & n.5 (1983).*

     In this case, the hearing officer found that “Geldhauser

maintained   a   handwritten   list    of   four   voters   he   intended   to

challenge” and that “none of the voters recognized Geldhauser or

anticipated that he would ever be in a position to influence their

terms or conditions of employment.” This finding is hardly clearly


     *
      Valcourt also points to the CHM in support of its argument
that Geldhauser’s list was unauthorized.      However, the    CHM
specifically provides that “[o]bservers may bring to the election
lists of employees they intend to challenge.” NLRB Casehandling
Manual, supra, § 11312.4.

                                      10
erroneous; indeed, Valcourt does not so assert.            Accordingly,

Geldhauser’s list cannot constitute grounds for overturning the

election.



                                   C.

     Valcourt additionally argues that the “special nature” of the

bargaining unit warrants particularly strict adherence to election

procedures.   Apparently, Valcourt maintains that because Hispanic

workers predominate its workforce, “most [of whom] do not speak or

understand English,” extra scrutiny should be given to the election

procedures.

     This argument also fails.          First, any irregularities that

existed were minor and not “sufficient to overturn [the] election.”

Black Bull Carting Inc., 29 F.3d at 46.      Valcourt has not presented

any compelling evidence of “actual prejudice resulting from the

challenged circumstances.”   Id.        Further, Valcourt has not cited

any cases in support of overturning a representation election due

to the ethnicity, origin, or language skills of the bargaining

unit.   The case on which Valcourt primarily relies does not apply

here.   See Robert Orr-Sysco Food Servs., LLC, 338 NLRB 614 (2002)

(overturning election in part because one employee threatened

another with deportation).    Moreover, as the NLRB points out,

Valcourt presented “no evidence . . . at the hearing” (other than




                                   11
the fact that many of Valcourt’s employees are Hispanic immigrants)

to support this claim.



                                     D.

     Finally, Valcourt asserts that the alleged errors discussed

herein “in the aggregate” warrant setting aside the election.           We

disagree.      The minor procedural irregularities challenged here do

not, even in combination, meet the heavy burden necessary to

overturn a Board-certified election.



                                    III.

     For the foregoing reasons, Valcourt’s petition for review is

denied   and    the   Board’s   cross-application   for   enforcement   is

granted.

                                       PETITION FOR REVIEW DENIED AND
                            CROSS-APPLICATION FOR ENFORCEMENT GRANTED




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