207 F.3d 994 (7th Cir. 2000)
CAST NORTH AMERICA (TRUCKING) LIMITED,    Petitioner/Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD,    Respondent/Cross-Petitioner.
Nos. 99-1607 & 99-1908
In the  United States Court of Appeals  For the Seventh Circuit
Argued October 26, 1999Decided March 29, 2000

On Petition for Review and Cross-Application  for Enforcement of an Order of   the National Labor Relations Board.
Before HARLINGTON WOOD, JR., KANNE, and DIANE P. WOOD,  Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.


1
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

2
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.


3
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.


4
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.


5
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.


6
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.


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.


8
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

9
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).


10
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.


11
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.


12
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:


13
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?


14
A:That's correct.


15
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?


16
A:That's correct.


17
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


18
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.


19
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. 1143,  1998 WL 414986, at *2 (1998).


20
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:


21
[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.


22
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.


23
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. 1143, 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

24
The NLRB's order shall be enforced.



Notes:


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. 1143, 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.


