251 F.3d 981 (D.C. Cir. 2001)
Nathan Katz Realty, LLC, et al., Petitionersv.National Labor Relations Board, Respondent
No. 00-1238
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2001Decide June 12, 2001

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
G. Peter Clark argued the cause and filed the briefs for  petitioners.
Ruth Burdick, Attorney, National Labor Relations Board,  argued the cause for respondent.  With her on the briefs  were Leonard R. Page, General Counsel, John H. Ferguson,  Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.
Before:  Williams, Sentelle and Henderson, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Nathan Katz Realty, LLC manages thirty apartment buildings in Queens, New York.  After  Local 32B-32J, Service Employees International Union,  AFL-CIO ("the Union") petitioned to organize Katz's service  employees, a National Labor Relations Board ("NLRB") Regional Director determined that the employees constituted  two separate units and ordered that the two elections be held  on the same day at different times.  The Director also found  that the superintendents in Katz's buildings were not supervisors under the National Labor Relations Act ("NLRA").


2
In one of the two elections, the employees voted to be  represented by the Union.  Following the election, Katz filed  several objections, contending inter alia that (1) agents of the  Union had improperly interfered with the election by being  present in a no-electioneering zone directly outside the entrance of the election site, and (2) the Regional Director erred  in deciding not to count the ballots from the first election  until after the second election was completed.  The Regional  Director overruled Katz's objections, and his decision was  affirmed by the Board.


3
When Katz refused to bargain with the Union, the Board's  General Counsel filed a complaint alleging that Katz's refusal  was an unfair labor practice that violated  8(a)(5) and (1) of  the NLRA.  29 U.S.C.  155(a)(5), (1).  Katz responded to  the complaint by renewing its earlier objections, incorporating them by reference in a letter to the Board.  The Board  ultimately ruled that Katz had engaged in unfair labor practices and ordered it to bargain with the Union.  See Nathan  Katz Realty LLC, 331 N.L.R.B. No. 22 (May 23, 2000).


4
Katz petitions us to review the Board's decision, again  arguing that its superintendents are supervisors, the Union's  agents engaged in improper conduct during the election, and the Director erred by refusing to count the first ballots before  the second election began.  In a cross-application for enforcement of its order, the Board contends that these issues are  not properly before us because Katz failed to preserve them  in the underlying representation case.


5
For reasons more fully set out below, we conclude that  Katz properly preserved all of the issues it raises in its  petition.  Furthermore, we hold that the Board failed to  provide a reasoned basis for concluding that the Union's  agents did not interfere with the election and for deciding to  delay tallying the ballots cast in the first election.  Accordingly, we grant Katz's petition in part and remand the case for  further proceedings.

I. BACKGROUND

6
In the spring of 1999, the Union petitioned the NLRB  seeking an election among Katz's superintendents and porters  to permit the Union to become their bargaining representative.  Following a hearing, the NLRB Regional Director  found that the employees of all the buildings but one constituted an appropriate unit ("multi-site unit").  The employees  of the other building comprised a separate unit ("Sima unit"). The Regional Director scheduled the two units' representation elections for the same day, with the Sima election in the  morning and the multi-site election in the afternoon.


7
In his Decision and Direction for Election, the Director  concluded that the buildings' superintendents were not supervisors under the NLRA.  See 29 U.S.C.  152(11).  Specifically, the Director determined that "[a]t most, superintendents possess some low-level authority to assign and oversee  the porters, but without using independent judgment and  without exercising any real supervisory authority over their  employment status."  Nathan Katz Realty, LLC, No. 29-RC9265, slip op. at 19 (July 1, 1999).  The superintendents  therefore were included in the units.  Katz challenged this  ruling, but the Board summarily affirmed it.  See Nathan  Katz Realty, LLC, No. 29-RC-9265 (July 26, 1999).


8
Two and a half weeks before the elections, the Union  requested that the Regional Director not count the ballots  from the Sima election until the voting in the multi-site  election was over.  Although Katz objected, the Regional  Director granted the Union's request, asserting that "[t]o  count the ballots in both units simultaneously guarantees that  neither party will enjoy an unfair advantage over the other  based on the result of the election in the SIMA unit."  Letter  from Alvin Blyer, Regional Director, NLRB, to G. Peter  Clark, Counsel for Nathan Katz Realty, LLC (July 16, 1999).


9
On the day of the elections, the two employees composing  the Sima unit voted against the Union, but the Union succeeded in the multi-site election, receiving 21 of 40 employee  votes.  Following the elections, Katz filed three objections: (1) Union agents interfered with the elections by stationing  themselves in a no-electioneering zone during the voting;  (2)  the Union provided a substantial benefit to Katz's employees  by providing them with cellular phones during the period  leading up to the elections;  and (3) the Director interfered  with the multi-site election by refusing to count the Sima  ballots until after the multi-site election.  The Director dismissed objection number three and most of the allegations in  objection number one without a hearing.  Their dismissal was  summarily affirmed by the Board.  See Nathan Katz Realty,  LLC, No. 29-RC-9265 (Oct. 1, 1999).  The Director later  dismissed objection number two and the remaining allegation  in objection number one.


10
After the Union was certified, it sought to bargain with  Katz, but Katz refused.  The NLRB General Counsel filed a  complaint alleging that Katz's refusal constituted an unfair  labor practice.  When the General Counsel filed a motion for  summary judgment, the Board issued a notice to show cause  to Katz.  After Katz responded to the notice, the Board found  that Katz had engaged in unfair labor practices in violation of   8(a)(5) and (1) of the NLRA.  See Nathan Katz Realty  LLC, 331 N.L.R.B. No. 22 (May 23, 2000).


11
Katz petitions this Court for review of the Board's unfair  labor practice decision.  In its petition, Katz reasserts its arguments that (1) the buildings' superintendents are supervisors as defined by the NLRA, (2) the Union's agents interfered with the elections through their presence in a noelectioneering zone during the voting, and (3) the Regional  Director interfered with the multi-site election by refusing to  count the Sima ballots until after both elections were completed.  The Board filed a cross-application for enforcement of its  order.

II. ANALYSIS
A. Jurisdiction

12
The Board contends that the issues raised by Katz are not  properly before the Court.  Specifically, the Board argues  that Katz did not explicitly preserve the issues it had presented in the underlying representation proceeding in accordance  with  10(e) of the NLRA.  29 U.S.C.  160(e).  In its  response to the Board's notice to show cause in the unfair  labor practice proceeding, Katz wrote that it


13
relies upon its Answer to the Complaint in Case 29-CA23280, the entire record in the related representation case, Case 29-RC-9265, including the September 21, 1999 Request for Review on the Acting Regional Director's Supplemental Decision On Objections On Behalf Of Nathan Katz Realty, LLC, and the transcripts and records of the proceedings before the hearing officers on the petition and on the election objections, in opposition to General Counsel's Motion for Summary Judgment in the above-referenced cases.


14
Letter from G. Peter Clark, Counsel for Nathan Katz Realty,  LLC, to John J. Toner, Executive Secretary, NLRB (Apr. 18,  2000).  The Board suggests that this statement was insufficient to provide it with adequate notice that Katz intended to  pursue specific issues in its petition for review.


15
Section 10(e) provides that "[n]o objection, that has not  been urged before the Board, its member, agent, or agency,  shall be considered by the court, unless the failure or neglect  to urge such objection shall be excused because of extraordinary circumstances."  29 U.S.C.  160(e).  Accordingly, a  "Court of Appeals lacks jurisdiction to review objections that  were not urged before the Board."  Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982).  The critical  inquiry in evaluating the Court's jurisdiction to review an  objection is "whether the Board received adequate notice of  the basis for the objection."  Alwin Mfg. Co. v. NLRB, 192  F.3d 133, 143 (D.C. Cir. 1999) (internal quotation omitted).


16
Under the Board's regulations, once a party litigates an  issue in a representation proceeding, it is prohibited from  relitigating those same issues in a subsequent unfair labor  practice proceeding. See 29 C.F.R.  102.67(f);  see also  Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1151  (D.C. Cir. 2000).  In light of the no-relitigation rule, Katz  contends that its statement provided the Board with sufficient  notice that it intended to raise the same issues in its petition  for review that it previously had raised in the representation  proceeding.  Katz claims that forcing a party to reargue its  representation and election challenges would serve no legitimate purpose.


17
Last year, in Alois Box Co. v. NLRB, we agreed that a  petitioner does not need "to provide yet another detailed  notice of the issues which have already been presented to the  Board in the representation cases" when it is responding to a  later unfair labor practice charge.  216 F.3d 69, 77 (D.C. Cir.  2000) (internal quotation omitted).  We explained, however,  that when a petitioner completely fails to raise an issue  during an unfair labor practice proceeding, "the Board was  entitled to treat the issue as abandoned," and the petitioner  "has forfeited its right to challenge the Board's disposition  ... in the representation proceeding."  Id. at 77, 78.  Because the Alois Box petitioner neglected to even reference  the contested issue during the unfair labor practice proceeding, we declined to decide "what would provide sufficient  notice" to preserve an issue for judicial review.  Id. at 78. That question is now squarely before us.


18
This question has been presented in two of our sister  circuits, the Ninth and Second.  In NLRB v. Best Products  Co., the petitioner sought to preserve its election objections  during an unfair labor practice proceeding by stating that it  "incorporates by reference and reaffirms by reference its post  election objections and brief."  See 765 F.2d 903, 909 (9th Cir.  1985).  The Ninth Circuit held that this statement was sufficient to preserve the objections for judicial review.  See id.  Specifically, the Ninth Circuit ruled that a party can preserve  an issue by providing a "firm indication to the Board of the  objecting party's non-abandonment of the issue."  Id. at 910.


19
In contrast, the petitioner in Schnurmacher Nursing Home  v. NLRB sought to preserve arguments it had made in a  representation case by stating during a later unfair labor  practice proceeding that it "disputes the ... other findings as  set forth in [its] Request for Review" of the Regional Director's representation decision.  214 F.3d 260, 270 n.3 (2d  Cir. 2000).  This statement appeared in a footnote in the  petitioner's response to a summary judgment motion in the  unfair labor practice proceeding.  See id.  Describing the  petitioner's statement as "cryptic," the Second Circuit held  that it was insufficient to preserve the issues for judicial  review.  Id.  Although the Schnurmacher Nursing Home  court did not provide any substantive analysis in arriving at  its conclusion, it did cite two cases.  Those cases, however, do  not support the court's holding.


20
First, the Second Circuit cited the Supreme Court's decision in Marshall Field & Co. v. NLRB, specifically referencing the Court's statement that a " 'general objection [to "each  and every recommendation" of a trial examiner's report] did  not apprise the Board that petitioner intended to press the  question now presented.' "  Id. (quoting 318 U.S. 253, 255  (1943) (per curiam)).  This statement, however, is simply  dicta, drawn out of its original context.  The Marshall Field  Court expressly decided as it did because it could not "find  that, at any stage of the proceedings before the Board, the  objection now urged ... was presented to it or to any  member or agent of the Board."  318 U.S. at 255 (emphasis  added).


21
Second, the Schnurmacher Nursing Home court cited  NLRB v. Star Color Plate Service to note in a parenthetical  that "raising [an] issue in [a] representation proceeding does  not suffice to preserve it on review of [an] order in [a] related  unfair labor practice proceeding."  Schnurmacher Nursing  Home, 214 F.3d at 269 n.3 (citing 843 F.2d 1507, 1510 n.3 (2d  Cir. 1988)).  This parenthetical does not by itself support the  Schnurmacher Nursing Home conclusion.  It does, however,  support the unremarkable basis for the Star Color ruling. The Star Color court held that it lacked jurisdiction to  consider the specific issue raised by petitioner on judicial  review.  This holding followed from the fact that the issue  "was raised in the original representation proceeding," but  "was not raised in the unfair labor practice proceeding." 843 F.2d at 1510 n.3 (emphasis added).


22
Neither Star Color nor Marshall Field compels the Second  Circuit's ruling in Schnurmacher.  Indeed, together these  cases stand simply for the rule that we articulated in Alois  Box--the Board may treat as abandoned any issue not raised  in an unfair labor practice proceeding.  Accordingly, we do  not find Schnurmacher Nursing Home persuasive.


23
We are persuaded instead to follow the Ninth Circuit's  approach:  "A firm indication to the Board of the objecting  party's non-abandonment of the issue is generally adequate to  preserve it for our review."  Best Products Co., 765 F.2d at  910.  In light of the no-relitigation rule, a detailed restatement of the arguments raised during representation proceedings or in election objections would be futile.  See id.  Section  10(e) ensures that the Board has an opportunity to entertain  questions that parties will later ask appellate courts to review.  See Marshall Field, 318 U.S. at 256.  To meet this  objective, we consider whether a party has given the Board  adequate notice of the basis for its objection, see Alois Box,  216 F.3d at 78, and that it "intends to press the specific issue  it now raises" on appeal, NLRB v. Seven-Up Bottling Co.,  344 U.S. 344, 350 (1953).  When the Board already has had an  opportunity to consider an issue in an earlier proceeding, the  party simply needs to provide a firm indication that it has not  abandoned the issue in a later unfair labor practice proceeding.  As in this case, incorporating earlier arguments by  reference generally provides the Board with adequate notice.


24
Katz responded to the NLRB General Counsel's motion for  summary judgment by stating that it relied upon "the entire  record in the related representation case, Case 29-RC-9265,  including the September 21, 1999 Request for Review on the  Acting Regional Director's Supplemental Decision On Objections On Behalf Of Nathan Katz Realty, LLC."  Letter from  G. Peter Clark, Counsel for Nathan Katz Realty, LLC, to  John J. Toner, Executive Secretary, NLRB (Apr. 18, 2000). This reference to the representation case is sufficiently specific to preserve the issues Katz raises for judicial review.  In  the underlying representation proceeding, Katz had appealed  three issues to the Board, including whether its superintendents are supervisors.  In the September 21 Request for  Review, Katz appealed only two objections to the Board: whether Union agents had engaged in improper electioneering and whether the Director erred in not counting the Sima  election ballots until the multi-unit election was completed. These are the same issues it now asserts in its petition to this  Court.


25
Indeed, in the decision now under review, the Board noted  that Katz "attacks the validity of the certification on the basis  of its objections to the election and the Board's unit determination in the representation proceeding."  Nathan Katz Realty, 331 N.L.R.B. slip op. at 1.  Given this statement, we are  astounded that the Board now argues that it did not receive  sufficient notice concerning the three issues Katz raises in its  petition.  The only "objections to the election" Katz appealed  to the Board were the two addressed in the September 21  Request for Review.  Likewise, the supervisor issue is one of  only two substantive issues Katz appealed to the Board  concerning the "unit determination."  Katz's response to the  summary judgment motion gave a firm indication that it was  not abandoning the issues it had previously raised, and therefore unquestionably provided the Board with sufficient notice.


26
The Board raises the alarming specter that greater specificity is "fundamental" to its "fair and expedient administration" of the NLRA.  Brief for the NLRB at 15.  If the Board  is so seized with concern about this question, it simply could  issue a rule requiring more specific objections.  We should  not have to point out that such a rule would govern an  internal procedure.  It therefore would not be subject to  notice and comment.  See 29 U.S.C.  156;  5 U.S.C.  553. In fact, the Board could easily promulgate such a rule at any  time.  In the future, we expect the Board will pursue that  option rather than crying out to the court for help.


27
The Board was afforded two opportunities to pass on each  of the issues Katz raises in its petition.  On both occasions,  the Board summarily affirmed the Regional Director's rulings.  Section 10(e) has not been threatened in this case.  We  therefore turn to the merits of Katz's petition.

B. Superintendents as Supervisors

28
Katz employs two property managers who each oversee  fifteen of its apartment buildings.  The buildings are staffed  by superintendents and porters.  At the pre-election hearing,  Katz argued that its superintendents should be designated as  supervisors under the NLRA.  The Regional Director found  that they were not supervisors, and the Board affirmed this  finding.  In its petition for review, Katz contends that the  superintendents are supervisors because they effectively discipline the porters, make hiring recommendations, assign  work to porters, set porters' schedules, and recommend wage  increases.  Katz further contends that this conclusion is  mandated by a previous Board ruling, Planned Bldg. Servs.,  Inc., 318 N.L.R.B. 1049, 1059-61 (1995), in which a superintendent for other New York City apartments was found to be  a supervisor.


29
We will uphold the Board's determination of whether an  employee is a supervisor as long as it is in accordance with  law, supported by substantial evidence, and is the product of  reasoned decisionmaking.  See Brusco Tug & Barge Co. v.  NLRB, 247 F.3d 273, 276(D.C. Cir.2001).  In  light of its expertise, we accord the Board "a large measure of  informed discretion" in making this determination.  Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir. 1984)  (internal quotation omitted).  The burden of proving that an  employee is a supervisor must be carried by the party  asserting it.  See NLRB v. Ky. River Cmty. Care, Inc., ___ U.S. ___, at ___ _ ___, 121 S.Ct. 1861, ___ L.Ed.2d ___ (2001);  Beverly Enters.Mass., Inc. v. NLRB, 165 F.3d 960, 962 (D.C. Cir. 1999).


30
Employees who are supervisors are excluded from the  NLRA's protection.  See 29 U.S.C.  152(3).  The NLRA  defines "supervisor" as:


31
[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.


32
Id.  152(11).  As this Court has explained before, under the  statute, "the employee must possess at least one of the twelve  types of authority set out in the statute, the exercise of that  authority must require the use of independent judgment, and  the authority must be held in the employer's interest."  VIP  Health Servs., Inc. v. NLRB, 164 F.3d 644, 648 (D.C. Cir.  1999).  Whether an employee exercises independent judgment is an inquiry into "the degree of discretion exercised  with respect to the statutory indicia of supervisory status.  If  an individual's discretion ... is tightly constrained, then her  exercise of that authority is 'routine....' "  Beverly Enters.Penn., Inc. v. NLRB, 129 F.3d 1269, 1270 (D.C. Cir. 1997)  (per curiam) (mem.).  In this case, the Board's determination  that Katz's superintendents are not supervisors is supported  by substantial evidence and is the product of reasoned decisionmaking.


33
Katz avers that the "most notable exercise of a superintendent's supervisory authority is found in the area of discipline."  Brief for Petitioners at 29.  Katz claims that its  evidence demonstrates that the superintendents effectively  discipline porters--or at least effectively recommend discipline.  Although the record includes testimony that superintendents theoretically could discipline porters, Katz offered  no evidence that a superintendent ever actually had disciplined a porter.  One of Katz's property managers testified  that a superintendent could suspend a porter for hitting a  tenant, but the manager acknowledged that he had never  talked with any superintendent about this alleged authority. Without specific evidence that any superintendent had disciplined a porter, we cannot possibly conclude that the Regional  Director erred.


34
A Katz property manager also testified that superintendents could make recommendations on discipline, but "the  kind of option I'm taking will be my decision."  This assertion  does not establish that any superintendent had in fact effectively recommended discipline.  Indeed, the record reflects  that Katz failed to offer any evidence that a superintendent's  recommendation had "resulted in an adverse personnel action."  Beverly Enters.-Penn., 129 F.3d at 1270.  Although  Katz did proffer testimony that a superintendent informed a  property manager that a porter "wasn't doing a good job,"  "mere reporting is insufficient to establish that [employees]  effectively recommend discharge or discipline."  VIP Health  Servs., 164 F.3d at 648.  Accordingly, we hold that the  Regional Director's determination is supported by substantial  evidence.


35
Katz's other arguments concerning superintendents' supervisory authority do not fare any better.  First, Katz claims  that superintendents effectively recommend hiring porters. Yet, Katz failed to offer any evidence that superintendents  have in fact made such effective recommendations, except in  the case of one superintendent who recommended his wife for  a job.  As the Board has ruled in the past, "[i]t is scraping  the bottle [sic] to argue that ... recommendations of members of his family ... prove the supervisory status contemplated in the Act."  Pierre Pellaton Enters., Inc., 201  N.L.R.B. 409, 412 (1973).  Absent evidence of other effective  recommendations, Katz cannot carry its burden of proof,  much less show that the Regional Director's decision is not  supported by substantial evidence.


36
Second, Katz contends that superintendents assign work to  porters.  Those assignments, however, are generated from tenant requests.  When the Board has found that a superintendent exercises independent judgment in assigning work,  the Board has relied on specific evidence of that judgment. For example, in Planned Building Services, the NLRB's  decision was based on evidence showing that the employee in  question "transfer[red] porters and handymen from one assignment and between buildings depending on the presence of  emergencies which would periodically arise and his judgment  as to their urgency."  318 N.L.R.B. at 1060.  Although Katz  claims that its superintendents exercise independent judgment by balancing "conflicting demands" in assigning work,  Brief for Petitioners at 30, there is no evidence in the record  to support its claim.  As the Board has aptly explained in the  past, a superintendent's "point[ing] out the type and location  of work to be done" and transmitting "a tenant's request" are  "of no great[ ] consequence."  Pierre Pellaton, 201 N.L.R.B.  at 412.


37
Third, despite Katz's assertions, the record contains no  evidence that superintendents set porters' schedules or approve vacation requests.  Even if they did set the schedules,  Katz offered no evidence that the superintendents have "substantial autonomy" in creating the schedules or that they  exercise independent judgment in creating the schedules. Micro Pac. Dev., Inc. v. NLRB, 178 F.3d 1325, 1331 (D.C.  Cir. 1999).  In contrast, the petitioner in Micro Pacific  demonstrated that its housekeeping supervisors relied on a  number of specific factors "to make independent determinations in scheduling and assigning the employees."  Id.;  see  also Beverly Enters.-Penn., 129 F.3d at 1270 (explaining that  licensed practical nurses "have no authority to schedule [certified nursing assistants] on any given day or week").


38
Fourth, Katz claims its superintendents recommend wage  increases.  This claim is centered on a property manager's  testimony that a superintendent "can recommend" such an  increase.  The manager testified, however, that no superintendent ever had recommended to him that a porter receive a  raise and that he did not know of any superintendent ever actually making a wage recommendation.  There is simply no  specific evidence to support Katz's claim.


39
Finally, Katz argues that the Board's determination in this  case conflicts with an earlier ruling in which the Board  concluded that a superintendent for several New York City  apartment buildings was a supervisor.  See Planned Bldg.  Servs., 318 N.L.R.B. at 1059-61.  In Planned Building Services, the Board ruled that a "senior superintendent" was a  supervisor because he exercised independent judgment in a  number of areas.  See id. at 1060.  Specifically, the Board  reviewed extensive evidence detailing the senior superintendent's assigning work, disciplining employees, allowing employees to leave work early, and screening employment applications.  See id.


40
In Planned Building Services, the Board did not claim to  establish a per se rule concerning superintendents in New  York City apartments.  Rather, it concluded that "other  superintendents" in the same buildings were not supervisors. Id. "[T]he issue of supervisory status is heavily factdependent" and is not subject to a blanket determination  based on the class of the job in question.  Brusco Tug &  Barge, at 276. Here, Katz's evidence did  not come close to proving that its superintendents possess the  same responsibility as the Planned Building Services senior  superintendent.  Accordingly, the Board did not err in finding that Katz's superintendents are not supervisors under the  NLRA.

C. Election Interference by Union Agents

41
The multi-unit election was held at a single, central location:  a classroom in a Lutheran church.  According to Katz,  "[t]o reach the polling place, voters needed to open a gate at  the edge of the 41st Avenue sidewalk and walk about ten feet  to the side door of the Church building, open the door and  enter the building."  Brief for Petitioners at 10-11.  Two of  Katz's managers and several of its employees alleged that  during the election two Union agents were in a car parked  within twenty feet of the church's side door.  According to Katz's managers and employees, the Union agents motioned,  gestured, and honked at the employees as they passed the  car.


42
After the election, Katz filed an objection based on these  incidents.  In its objection, Katz alleged that the Board Agent  had established a 25-yard no-electioneering zone outside the  entrance of the church.  Katz argued that the Union agents'  presence and actions in the no-electioneering zone constituted  objectionable conduct that justified setting aside the election. The Regional Director overruled Katz's objection, concluding  that the allegations--even if true--were insufficient to demonstrate that the Union had "interfered with the exercise of  the employees' free choice."  Nathan Katz Realty, LLC, No.  29-RC-9265, slip op. at 9 (Sept. 8, 1999) ("Supplemental  Decision").  The Board summarily affirmed the Director's  conclusion.


43
We will uphold Board decisions concerning election objections if they are the product of reasoned decisionmaking and  supported by substantial evidence.  See Family Serv. Agency  S.F. v. NLRB, 163 F.3d 1369, 1377 (D.C. Cir. 1999).  In  Board proceedings, the party seeking to overturn a representation election maintains the burden of establishing "that the  election was not fairly conducted."  Id.


44
In previous cases, we have recognized the NLRB's Milchem rule, which prohibits "prolonged conversations between  representatives of any party to the election and voters waiting to cast ballots," regardless of the content of the remarks. Milchem, Inc., 170 N.L.R.B. 362, 362 (1968).  When this rule  is violated, "the Board will order a new election."  Family  Serv. Agency, 163 F.3d at 1381.


45
"When an employer objects to electioneering not encompassed within the Milchem rule"--that is, when the alleged  objectionable conduct occurs at a time other than while voters  are waiting to cast ballots in the designated voting area--"the  Board will overturn the election only if the electioneering  substantially impaired the exercise of free choice."  Overnite  Transp. Co. v. NLRB, 140 F.3d 259, 270 (D.C. Cir. 1998)  (internal quotation omitted).  In conducting this inquiry, the Board considers a range of factors, including the "nature and  extent of the electioneering, whether it happened within a  designated 'no electioneering' area, whether it was contrary  to the instructions of the Board's election agent, whether a  party to the election objected to it, and whether a party to the  election engaged in it."  Id.


46
In this case, the Regional Director assumed that all of the  allegations contained in Katz's election objection were true. Accordingly, Katz's allegations establish that (1) the Union  agents' conduct occurred in a no-electioneering zone;  (2) their  presence and actions were contrary to the instructions of the  Board Agent;  (3) Katz objected to the Union agents' conduct; and (4) the people who engaged in the conduct were agents of  a party to the election.  The Regional Director concluded that  "[a]lthough the [Union agents] may have been stationed  within the designated no-electioneering zone area for a portion of the polling period, there is no suggestion that they  actually engaged in any electioneering" nor that "they engaged in objectionable conduct sufficient to set aside the  election."  Supplemental Decision at 9-10.  The Director is  correct that Katz has not introduced evidence of direct electioneering by the Union agents;  however, in previous cases,  the Board has stated that a party's mere presence may be  sufficient to justify setting aside an election.  Katz cites two  such cases:  Performance Measurements Co., 148 N.L.R.B.  1657 (1964), and Electric Hose & Rubber Co., 262 N.L.R.B.  186 (1982).


47
In Electric Hose, the Union lodged two election objections  directly relevant to the case now before us.  First, it objected  to the presence of a company supervisor within ten or fifteen  feet of the entrance to the voting area.  See Elec. Hose, 262  N.L.R.B. at 216.  Second, the Union objected to the presence  of two supervisors who stood in areas where employees "had  to pass in order to vote."  Id.  The Administrative Law  Judge not only found that the first supervisor had engaged in  objectionable conduct, but she also concluded that the two  supervisors' "unexplained presence" alone was "coercive evidence of such a nature as to have destroyed the laboratory  conditions necessary for the conduct of a free and fair election."  Id.  According to the ALJ, the only plausible purpose  for the supervisors' presence, like the lone supervisor's presence near the entrance to the voting area, was "to convey to  [the voting] employees the impression that they were being  watched."  Id.  The Board adopted these conclusions.  See  id. at 186.


48
The Regional Director attempted to distinguish Electric  Hose from this case by noting that here the Union agents  were stationed in a car outside the church, not "immediately  outside of the actual polling area."  Supplemental Decision at  10 n.12.  This distinction is manifestly inadequate.  In Electric Hose, only one of the supervisors stood immediately  outside the polling area.  The other two supervisors simply  stood in an area where employees "had to pass in order to  vote."  Nothing in the Electric Hose decision indicates that  these two supervisors were anywhere near the actual polling  place.  Katz alleges that, like the employees in Electric Hose,  the multi-site employees had to pass the Union agents on  their way to vote.  In Katz's election objection, it specifically  alleged that "[a] voter approaching the Church entrance on  the sidewalk (the only means of access) would have to walk  within a few feet of the car."  Similarly, several Katz managers stated in their affidavits that "[a]nyone in the car could  easily watch the side doorway to the Church and the sidewalk  along 41st Avenue leading to that entrance used for the  NLRB election."  The Regional Director simply did not  attempt to explain why the presence of the Union agents  should be treated differently than the "unexplained presence"  of the two Electric Hose supervisors.


49
In Performance Measurements, the employer's president  "stood by the door to the election area so that it was  necessary for each employee who voted to pass within 2 feet  of him to gain access to the polls."  148 N.L.R.B. at 1659. The Regional Director in that case found that there was no  evidence that the president engaged in any electioneering. Nevertheless, the Board held that the president's "continued  presence" constituted "improper conduct" that "interfered  with employees' freedom of choice in the election."  Id.


50
In this case, the Regional Director distinguished the Union  agents' actions by stating that they "were stationed near the  outside entrance to the building, not the entrance to the  church basement classroom where the actual voting took  place."  Supplemental Decision at 10 n.12.  This is a hollow  distinction.  After all, according to Katz's election objection,  which the Regional Director assumed to be true, the Board  Agent established a no-electioneering zone.  No such zone  existed in Performance Measurements.  The Director did not  explain why the Union agents' "continued presence" in a noelectioneering zone by the entrance to the site of the election  (where employees had to pass) is different from standing  outside the room in which employees actually vote.  Standing  in either place could "interfere with the employees' freedom  of choice"--particularly if the Board Agent enacted a noelectioneering zone, presumably to prevent the parties from  interfering with that freedom.


51
The Regional Director also distinguished Performance  Measurements by stating that "there is no evidence to suggest that employees were required to pass the [Union agents]  in order to enter the building."  Id.  As we explained above,  this statement is simply false.  The Director purported to  assume that Katz's allegations were true, yet discounted-without explanation--its allegation that employees were required to pass the Union agents.


52
Together, Electric Hose and Performance Measurements  seem to stand for the proposition that a party engages in  objectionable conduct sufficient to set aside an election if one  of its agents is continually present in a place where employees have to pass in order to vote.  In light of these cases,  Katz's allegations appear to establish that the Union agents'  presence outside the church's entrance constitutes conduct of  such a nature that it substantially impaired the multi-site  employees' exercise of free choice--even if the agents did not  actually talk to any employee.  The Board, however, came to  the opposite conclusion.  It is "axiomatic that an agency  adjudication must either be consistent with prior adjudications or offer a reasoned basis for its departure from precedent."  ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1443 (D.C. Cir. 1997) (internal citation omitted). The Board's decision in  this case did neither.  Accordingly, we vacate the Board's  decision and remand the case for further proceedings.

D. Counting the Sima Ballots

53
According to the NLRB's statement of procedures, "[c]ustomarily, the Board agents ... count and tabulate the ballots  immediately after the closing of the polls.  A complete tally of  the ballots is made available to the parties upon the conclusion of the election."  29 C.F.R.  101.19(a)(3).  Likewise, the  Board's rules and regulations state that "[u]pon the conclusion of the election the ballots will be counted and a tally of  ballots prepared and immediately made available to the parties."  29 C.F.R.  102.69(a).  The NLRB's Case Handling  Manual for Representation Proceedings echoes these rules,  providing that "[t]he count should take place as soon after the  close of voting as possible."   11340.1 (Sept. 1989 ed.).


54
In this case, following a request by the Union, the Regional  Director decided to refrain from counting the Sima election  ballots until after the completion of the multi-site election. He explained his decision by stating that "[t]o count the  ballots in both units simultaneously guarantees that neither  party will enjoy an unfair advantage over the other based on  the result of the election in the Sima unit."  The Director also  noted that waiting to count the Sima ballots "fosters laboratory conditions for both elections."


55
After the elections, Katz filed an objection with the Regional Director, arguing that the decision to delay the Sima ballot  count unreasonably deviated from normal Board procedures. The Director overruled the objection for two reasons.  First,  he found that Katz had failed to submit evidence establishing  that the delayed count materially affected the results of the  elections.  Supplemental Decision at 15.  Second, he concluded that Katz did not proffer evidence to show that the  Director's decision was an abuse of discretion.  Id. at 15-16. The Board summarily affirmed this ruling.  In its petition,  Katz renews its claim.


56
The Board maintains "a wide degree of discretion in establishing the procedure and safeguards necessary to insure the  fair and free choice of bargaining representatives by employees."  NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). Nevertheless, neither the Board nor the Regional Director  may abuse that discretion.  Indeed, if they choose to depart  from usual election procedures, they must provide a reasoned  explanation.  See Macmillian Publ'g Co. v. NLRB, 194 F.3d  165, 168 (D.C. Cir. 1999).


57
Here, the Regional Director's only reason for departing  from the normal procedure of counting the ballots and revealing the results "immediately" after the Sima election was that  it might give one of the parties an "unfair advantage." Although the Board suggests that this casual conclusion is  consistent with earlier election decisions, see Brief for the  NLRB at 30 (citing Diamond Walnut Growers, Inc., 308  N.L.R.B. 933 (1992);  Indep. Rice Mill, Inc., 111 N.L.R.B. 536  (1955)), it is not immediately apparent what is "unfair" about  announcing the results of one election before another election  commences--even when the two elections are closely related  or include employees of the same company.  Neither the  Regional Director nor the Board offered any explanation.  It  is as if the Board has taken a page from the Bard:  "For  there is nothing either good or bad, but thinking makes it so." William Shakespeare, Hamlet act 2, sc. 2.


58
In its brief and at oral argument, the Board primarily  stresses only one rationale for upholding the Regional Director's decision in this case:  the Director has broad discretion.  This misses the point.  The Board (and in turn the  Director) has received from Congress a delegation of authority to act in certain circumstances.  See Kwik Care Ltd. v.  NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996).  When it acts,  however, Congress requires it to act in a reasoned fashion,  not arbitrarily and capriciously.  See BB&L, Inc. v. NLRB,  52 F.3d 366, 369 (D.C. Cir. 1995) (per curiam).  If the Board  cannot assign a reason for what it has done, then its actions  are arbitrary and capricious.  See Motor Vehicle Mfrs. Ass'n  v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). That the Board has broad discretion is of no import.  To state the standard of review is not to offer a reason.  If the Board  chooses to exercise its discretion, it must explain its action,  and its explanation must reflect reasoned decisionmaking. See Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C.  Cir. 1992).  Just as simply stating that a procedure is "unfair"  does not make it so, simply stating that the Director has  broad discretion does not establish that he has exercised it  properly.


59
Ultimately, to prevail, "a party attempting to set aside a  representation election must demonstrate that the conduct  complained of interfered with the employees' exercise of free  choice to such an extent that it materially affected the  election."  C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882  (D.C. Cir. 1988).  While the delay in tallying and releasing  the results of the Sima vote might not itself be grounds for  reversal, the Board's complete inability to explain how releasing the results prior to the multi-site election could be  "unfair" makes a remand appropriate.

III. CONCLUSION

60
For the foregoing reasons, the petition for review is granted in part, and the cross-application for enforcement is denied.

