In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1607 & 99-1908

CAST NORTH AMERICA (TRUCKING) LIMITED,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.



On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board.


Argued October 26, 1999--Decided March 29, 2000



  Before HARLINGTON WOOD, JR., KANNE, and DIANE P. WOOD,
Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. This case is
before the court on a petition for review and a
cross-application for enforcement of an order of
the National Labor Relations Board ("NLRB" or
"the Board") requiring Cast North America
(Trucking) Limited ("Cast") to recognize and
bargain with Local 299, International Brotherhood
of Teamsters, AFL-CIO ("Local 299") as the
exclusive bargaining representative of the
company’s drivers, mechanics, and yard personnel.
The order followed an election in which the
covered employees were offered the choice between
representation by Local 299, representation by
the Chicago Truck Drivers, Helpers & Warehouse
Workers Union ("CTDU"), or no union
representation. Based on the election results,
the NLRB certified Local 299 as the exclusive
bargaining representative for the covered
employees. Despite this certification, Cast
refused to recognize and bargain with Local 299.
As a result, Local 299 filed a charge with the
NLRB. Cast responded by admitting its refusal to
bargain but challenging the propriety of the
NLRB’s certification of Local 299. The NLRB found
for Local 299 and ordered Cast to bargain with
the union. This appeal followed.

I.   BACKGROUND
  Cast is a Canadian corporation in the business
of transporting containers of goods for import
and export. Cast operates trucking facilities in
Detroit, Michigan and Chicago, Illinois. In April
1997, Local 299 filed a petition with the NLRB
requesting a representation election for the
drivers, mechanics, and yard personnel in Cast’s
Detroit facility. At that time, these employees
were being represented by the CTDU. Following a
hearing, the NLRB Regional Director ("Regional
Director") concluded that the appropriate
bargaining unit was a single unit consisting of
the drivers, mechanics, and yard personnel at
both the Detroit and Chicago facilities and
directed a representation election for that unit.
The election was originally scheduled as a two-
session manual election with voting to take place
at both the Chicago and Detroit terminals. After
Cast expressed concern that some voters might be
prevented from voting in person in a manual
election due to the nature of the long-haul
trucking business, all of the parties verbally
agreed, with the approval of the Regional
Director, to conduct the election by mail ballot.
The Regional Director was prepared to conduct the
election by mail; however, Local 299 then
notified the Regional Director that it had
changed its mind and preferred a manual election.
The Regional Director, without accompanying
explanation, directed a manual election to be
held on June 5, 1997 with voting to be allowed
from 4:00 a.m. to 7:00 a.m. and again from 4:00
p.m. until 7:00 p.m.

  The election took place as scheduled. As
previously noted, the ballots offered the covered
employees the choice between representation by
Local 299, representation by the CTDU, or no
union representation. There were approximately
sixty-eight eligible voters, and sixty-two votes
were cast. Thirty-three employees voted in favor
of representation by Local 299, and twenty-nine
employees voted for representation by the CTDU.
No votes were cast in favor of no union
representation. On June 16, 1997, the CTDU, as
Intervenor, filed objections to the election with
the NLRB, asking the NLRB to set aside the
election on the grounds that five eligible
employees were not given the opportunity to vote.
The CTDU specifically asserted that four of these
employees were prevented from voting through no
fault of their own but rather due to the conduct
of Cast. Cast joined in the CTDU’s objections,
stating that exigent business needs obligated it
to schedule the four drivers on deliveries that
caused them to miss the election.

  A hearing was held on the objections before an
NLRB hearing officer. The following evidence was
presented concerning the circumstances
surrounding the failure to vote of the five
employees identified in CTDU’s objections, Edward
Walinski, Darrell Wright, John Zanazaro, Richard
Craig, and Michael Schiring. On June 4, 1997,
Edward Walinski was dispatched to Detroit to pick
up a load for delivery to a customer in North
Dakota. Walinski reached his destination in North
Dakota at 6:00 a.m. on June 5, the day of the
election. At that time, he was 630 miles away
from Chicago and could not have driven back in
time to vote in the election. From North Dakota,
Walinski was dispatched directly to Oregon,
Illinois to pick up a load. He did not return to
Chicago until the day after the election, June 6.
Darrell Wright was dispatched from the Chicago
terminal at 2:00 a.m. on the day of the election,
June 5, to deliver a load to Hutchinson,
Minnesota, which is over 450 miles away from
Chicago. Wright did not return to Chicago until
noon on June 6.

  John Zanazaro returned to the Chicago terminal
at 9:40 p.m. on June 4, 1997, after completing a
delivery to Wisconsin. Before leaving the
terminal for the evening, Zanazaro observed from
the posted schedule that he was assigned to leave
the following morning at 8:00 a.m. for a delivery
to Dubuque, Iowa followed by a pick up in Oregon,
Illinois. The drivers at the Chicago facility are
assigned deliveries on a "first in, first out"
basis. Under this system, drivers receive their
assignments for the next day in the order in
which they return to the terminal. It is Cast’s
policy that a driver must take no less than ten
hours off between assignments. This policy is
based on Department of Transportation safety
regulations which require that drivers be given
eight consecutive hours off duty between long-
haul assignments. See 49 C.F.R. sec. 395.3. The
Cast drivers’ off-duty time is increased from
eight to ten hours between assignments to allow
the drivers time to commute between the Cast
facility, located on the north side of Chicago,
and their homes, most of which are south of the
city. Zanazaro clocked in for work at 7:14 a.m.
on June 5. When his supervisor arrived, shortly
before 8:00 a.m., Zanazaro asked if he could pass
on the assignment or switch runs with another
driver because he was afraid that his scheduled
run would prevent him from returning to the
terminal in time to vote in the afternoon
session. The supervisor denied Zanazaro’s request
due to a lack of substitute drivers. Zanazaro
left on the run as scheduled and did not return
to the terminal until after 9:00 p.m. that
evening.

  On June 4, 1997, Richard Craig returned to the
Chicago terminal from a delivery at 10:58 p.m.
Before leaving the terminal for the evening,
Craig observed from the posted schedule that he
was scheduled to leave the following morning at
9:00 a.m. for a delivery to Wisconsin followed by
a pick-up in Michigan. Craig returned to the
terminal between 8:40 and 8:45 a.m. on June 5 and
asked the supervisor if he could switch runs so
he could vote in the afternoon session. The
supervisor informed Craig that there were no
substitute drivers available. Craig left on the
run as scheduled and did not return to the
terminal until 7:00 a.m. on June 7.

  Michael Schiring was absent from work due to a
hunting vacation the week of the election.
Schiring had prepaid for this trip prior to the
scheduling of the election and would be forced to
forfeit the money he had paid if he canceled.
When the notice of election was posted, Schiring
inquired about obtaining an absentee ballot,
informing his supervisor that he wanted to vote
but did not want to forfeit the money he had paid
for his vacation. The supervisor advised Schiring
that voting had to be done in person and that
there was no provision for absentee ballots.
Schiring went on his trip as scheduled and did
not vote in the election.

  On October 8, 1997, the NLRB issued a Hearing
Officer’s Report on Objections to Conduct
Affecting Results of the Election. The hearing
officer found that of the five employees only
two, Walinski and Wright, were prevented from
voting through no fault of their own, a number
insufficient to affect the outcome of the
election. Therefore, the hearing officer
recommended that the objections be overruled.
Cast then filed Exceptions to the Hearing
Officer’s Report with the NLRB, arguing that the
hearing officer erred in failing to find that a
determinative number of voters were deprived of
the opportunity to vote and that the Regional
Director erred in failing to direct a mail
election. On June 30, 1998, a three-member NLRB
panel issued a split decision adopting the
hearing officer’s findings and recommendations
and holding that a certification of
representative should be issued in favor of Local
299. One panel member filed a dissenting opinion,
stating that he would sustain the objections and
set aside the election on both grounds argued in
Cast’s Exceptions. Despite the NLRB panel
decision, Cast refused to bargain with Local 299,
asserting that the certification of
representative was erroneously issued. Local 299
then filed a charge with the NLRB alleging that
Cast’s refusal to bargain violated sections
8(a)(1) and (5) of the National Labor Relations
Act, 29 U.S.C. sec. 158(a)(1), (5). The NLRB
General Counsel issued a complaint and notice of
hearing on the charge. Cast filed an answer
admitting its refusal to bargain but disputing
the propriety of Local 299’s certification. On
January 29, 1999, a three-member NLRB panel
granted summary judgment in favor of the General
Counsel, holding that Cast failed to offer any
newly discovered and previously unavailable
evidence or to allege special circumstances that
would require a reexamination of the NLRB’s June
30, 1998 decision in the initial representation
proceeding. The panel concluded that Cast’s
conduct constituted an unfair labor practice and
ordered Cast to cease and desist from refusing to
bargain with Local 299. On March 16, 1999, Cast
filed a petition for review with this court. On
April 19, 1999, the NLRB filed a cross-
application for enforcement of its order. We have
jurisdiction pursuant to 29 U.S.C. sec. 160(e)
and (f).

II.   ANALYSIS

  Our review of the NLRB panel decision is
"decidedly deferential." Dunbar Armored, Inc. v.
NLRB, 186 F.3d 844, 846 (7th Cir. 1999). The
panel’s "’reasonable inferences may not be
displaced on review even though [we] might
justifiably have reached a different conclusion
. . . .’" Id. (quoting U.S. Marine Corp. v. NLRB,
944 F.2d 1305, 1313-14 (7th Cir. 1991) (en
banc)). We regard the NLRB panel’s findings of
fact as conclusive as long as they are "supported
by substantial evidence on the record considered
as a whole." 29 U.S.C. sec. 160(e). We give
similar deference to the panel’s legal
conclusions. Dunbar Armored, 186 F.3d at 847.
Because the panel’s January 29, 1999 order on the
unfair labor practice charge is based on findings
made in the initial representation proceeding,
the record in the representation proceeding is
also before this court. 29 U.S.C. sec. 159(d).

  Cast raises two challenges to the panel
decision. First, Cast asserts that the panel’s
determination that employees John Zanazaro and
Richard Craig were not deprived of the
opportunity to vote in the election was not
supported by substantial evidence. Secondly, Cast
argues that the Regional Director’s decision to
hold a manual rather than a mail ballot election
was both erroneous and unsupported and,
therefore, should be overturned.

  The NLRB will set aside election results when
the conduct of a party to an election causes an
employee to miss the opportunity to vote if (1)
the employee’s vote is determinative and (2) the
employee was disenfranchised through no fault of
his own. Sahuaro Petroleum & Asphalt Co., 306
N.L.R.B. 586, 1992 WL 46429 (1992). In its June
30, 1998 order, the NLRB panel concluded that
Zanazaro and Craig’s failure to vote could not be
attributed to their employer’s conduct, noting
that the two men were off duty during the morning
voting session. Cast disagrees, arguing that
company policy together with Department of
Transportation regulations created an employment
obligation which prevented Zanazaro and Craig
from returning to the terminal in time to vote in
the morning voting session. Cast asserts that
company policy "required that [the drivers] be
away from the terminal during the 10 hour off-
duty period set aside for obtaining 8 hours of
sleep and commuting to and from the terminal."
Therefore, Cast argues Zanazaro and Craig’s
position was indistinguishable from that of
Walinski and Wright in that all four men were
prevented from voting due to employment
obligations.

  Cast asserts that the NLRB panel’s finding that
Cast company policy and Department of
Transportation regulations did not require that
the drivers use their off-duty time to obtain
eight hours of sleep was contrary to the
substantial weight of the evidence. However, the
Department of Transportation regulations require
only that drivers have "8 consecutive hours off
duty." 49 C.F.R. sec. 395.3 (emphasis added).
Under the regulations, a driver is considered to
be on duty "from the time [he] begins to work or
is required to be in readiness to work until the
time the driver is relieved from work and all
responsibility for performing work." Id. sec.
395.2. While the regulations are designed to
prevent a driver from operating a commercial
vehicle while his "ability or alertness is so
impaired, or so likely to become impaired,
through fatigue, illness, or any other cause, as
to make it unsafe for him to begin or continue to
operate the motor vehicle," id. sec. 392.3,
nowhere do they require that drivers get a
specific amount of sleep. The Cast supervisor’s
testimony before the NLRB hearing officer further
confirms this point. The supervisor testified as
follows:

Q:Now, the eight hours off that is required by
Department of Transportation regulations, that
just means they [the drivers] can’t be working,
correct?

A:That’s correct.

Q:And whatever they do on their own time is up to
them? I mean, if they don’t need sleep, they
don’t need sleep. But they do whatever they want
to do, correct?

A:That’s correct.
  Because the Cast ten-hour off-duty policy is
derived from the Department of Transportation
regulations, adding two hours for commuting to
the required eight off-duty hours, our analysis
of the regulations applies to our company policy
analysis as well. Furthermore, although the Cast
supervisor testified that it was "a policy that
the driver had to have eight hours of sleep,"
there is no evidence that Cast took steps to
regulate the drivers’ conduct in their off-duty
hours other than to tell the drivers to make sure
that they take their time off and to recommend
that "they get at least eight hours sleep, or
whatever they need." Similarly, there is no
evidence to support Cast’s contention that
Zanazaro and Craig would have been violating
company policy had they arrived at the terminal
prior to 7:00 a.m. on June 5. In fact, both men
clocked in that day after having been away from
the terminal for less than ten hours./1

  Under the facts of this case, it is clear that
Zanazaro and Craig were not prevented from voting
due to employment obligations. Both men were off
duty and in the vicinity of the Chicago facility
during the morning voting session. In fact,
Zanazaro clocked in just fourteen minutes after
the morning polling session ended. There is
substantial evidence to support the NLRB’s
conclusion that the number of employees prevented
from voting through no fault of their own was
insufficient to affect the outcome of the
election.

  In the alternative, Cast raises two challenges
to the Regional Director’s decision to conduct a
manual election. The NLRB has wide discretion in
the administration of representation elections.
See Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126
(D.C. Cir. 1996). The NLRB has delegated a
portion of this authority to the Regional
Directors who have discretion to determine
election arrangements, including whether the
election should be conducted manually or by mail
ballot. San Diego Gas & Elec., 325 N.L.R.B. 218,
1998 WL 414986, at *2 (1998).

  Cast’s first challenge is procedural. Cast
contends that the Regional Director’s decision to
conduct a manual election rather than an election
by mail ballot should be overturned because the
Director failed to articulate the reasons
underlying his decision. Cast, however, failed to
raise this procedural argument before the NLRB.
Under 29 U.S.C. sec. 160(e), "[n]o objection that
has not been urged before the Board . . . shall
be considered by the court unless failure to urge
such objection shall be excused because of
extraordinary circumstances." This is a
jurisdictional bar, designed to allow the NLRB
the first opportunity to consider objections and
to ensure that reviewing courts receive the full
benefit of the NLRB’s expertise. NLRB v. Howard
Immel, Inc., 102 F.3d 948, 951 (7th Cir. 1996).
"Accordingly, to effectively preserve an issue,
the respondent’s exception must apprise the Board
of the issue that the responding party intends to
press on review sufficiently enough that the
Board may consider the exception on the merits."
Id. (citing Marshall Field & Co. v. NLRB, 318
U.S. 253, 255 (1943)). Cast contends that it
sufficiently raised the issue in its "Opposition"
to the General Counsel’s motion for summary
judgment filed in the unfair labor practice
proceeding. In the Opposition, Cast asserted that
Zanazaro and Craig’s failure to vote resulted
from the Regional Director’s refusal to schedule
an election by mail ballot. Cast argued only that
the Regional Director’s decision to hold a manual
election was based on improper criteria.
Specifically, Cast argued:

[T]he Regional Director was unwilling to
direct a mail ballot which he originally
was willing to conduct apparently simply
because one of the parties no longer was
willing to agree to a mail ballot
election. This was not an appropriate
basis on which to determine this issue,
and certainly was inconsistent with the
Board’s precedent concerning the long
distance trucking industry and its recent
ruling in San Diego Gas which expressly
calls for the exercise of reasoned
discretion by the Regional Director in
determining whether it would be
appropriate to direct a mail ballot.

This is insufficient to preserve an argument as
to the Director’s failure to articulate the
reasoning behind his decision. Additionally, the
record does not reflect any extraordinary
circumstances which would excuse Cast’s failure
to raise this issue before the NLRB. Therefore,
Cast has waived the right to bring this argument
in this court.

  Cast further contends that the Regional
Director’s decision to hold a manual election was
substantively erroneous because it was "clearly
inconsistent with the Board’s own guidelines."
Cast cites the NLRB’s recent decision in San
Diego Gas, 325 N.L.R.B. 218, 1998 WL 414986, to
support its argument that "the Board’s recent
guidelines clearly call for a mail ballot
election in the present situation." However, the
panel in San Diego Gas expressly stated that it
was "clarifying the circumstances under which it
is within the Regional Director’s discretion to
direct the use of mail ballots." Id. at *3
(emphasis added). San Diego Gas does not hold
that mail ballot elections must be held in all
cases in which they may be appropriate, but
rather reaffirms the broad discretion enjoyed by
the Regional Directors in determining which type
of election is appropriate. Id. We need not
decide whether a mail ballot election may have
been a better alternative in the present case./2
It is clear from the record that the Regional
Director explored the possibility of a mail
ballot election, see id. at *4, to the point of
tentatively scheduling one. Furthermore, Cast
asserts that if the Regional Director based his
decision to order a manual election on Local
299’s refusal to consent to a mail ballot
election, this decision was erroneous because
"the direction of a mail ballot election is not
supposed to be conditioned on a unanimous
agreement by the parties." However, under San
Diego Gas, "the desires of all of the parties" is
one proper factor for the Director to consider in
the exercise of his discretion. Id. at *3. We
cannot say that the Regional Director’s failure
to order a mail ballot election constitutes an
abuse of discretion given the facts of the
present case.

III.   CONCLUSION

  The NLRB’s order shall be enforced.



/1 The testimony before the NLRB hearing officer was
that Zanazaro returned to the terminal at 9:40
p.m. The supervisor estimated that, by the time
Zanazaro dropped off his cargo and completed his
paperwork, Zanazaro would not have left the yard
until 10:00 or 10:15 p.m. Even based on the time
of his return to the terminal, Zanazaro had not
been off duty for a full ten hours when he
clocked back in at 7:14 a.m. on June 5. Craig
returned to the terminal from a delivery at 10:58
p.m. on June 4. Assuming Craig left the terminal
soon after his return, he had not been away from
the terminal for a full ten hours when he
returned to work between 8:40 and 8:45 a.m. on
June 5.

/2 The NLRB has noted that historically voter turn
out has been higher in representation elections
that are conducted manually than in those
conducted by mail ballot. San Diego Gas, 325
N.L.R.B. 218, 1998 WL 414986, at *3. While a
variety of factors influence this statistic, see
id., it is worthwhile to note that in the
election at issue in the present case, despite
the inconsistent nature of the long-haul trucking
business, sixty-two of the approximately sixty-
eight eligible voters exercised their right to
vote.
