275 F.3d 1089 (D.C. Cir. 2002)
Antelope Valley Bus Company, Inc., Petitionerv.National Labor Relations Board, Respondent
No. 00-1405
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2001Decided January 4, 2002

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Gary C. Moss argued the cause for petitioner.  With him  on the briefs were Joanna S. Kishner and Celeste M. Wasielewski.
Christopher W. Young, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Arthur F. Rosenfeld, General Counsel, John H.  Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Robert J. Englehart,  Supervisory Attorney.
Before:  Tatel and Garland, Circuit Judges, and Williams,  Senior Circuit Judge.1
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Antelope Valley Bus Company  petitions for review of a decision and order of the National  Labor Relations Board (NLRB).  The Board found that the  company violated  8(a)(5) and (1) of the National Labor  Relations Act (NLRA), 29 U.S.C.  158(a)(5) & (1), by refusing to bargain with the Chauffeurs, Sales Drivers, Warehousemen and Helpers, Local 572, International Brotherhood  of Teamsters, AFL-CIO.  The Board had certified the union  as the collective-bargaining representative of a group of  Antelope Valley employees following an election conducted by  mail ballot.  The company alleges that the certification election was invalid because some employees in the bargaining  unit did not receive their mail ballots, and that therefore its  refusal to bargain with the union did not violate the NLRA. We deny the petition for review and grant the Board's crossapplication for enforcement of its order.


2
* Antelope Valley operates a bus company that provides  transportation for commuters, tours, and charters.  The  length of a bus driver's trip ranges from a few hours to two  weeks or more.  The buses are garaged at the company's  facility in Sylmar, California, where employees report to  check in, process paperwork, and obtain their buses.  At the  time of the contested election, the company employed approximately 149 drivers.


3
On August 23, 1999, the union filed an election petition with  the NLRB, seeking to represent Antelope Valley's bus drivers.  The parties entered into a stipulated election agreement, which specified that the balloting would be conducted  by U.S. Mail.  Pursuant to that agreement, Antelope Valley  posted three standard election notices in the Sylmar dispatch  area in early September, 1999.  Each notice advised the  employees that an election would be conducted by mail, and  that "[a]ny person who has not received a ballot by Tuesday,  September 28, 1999, should immediately contact the Election  Unit, National Labor Relations Board, Region 31, [address  and phone number], and request a ballot."  Joint Appendix  (J.A.) at 242.


4
The company provided the NLRB with a list, commonly  referred to as an Excelsior list,2 of the names and addresses  of employees eligible to vote.  The NLRB mailed ballots to  those employees on September 17, using address labels provided by the company.  The ballots were due on October 13,  and the NLRB counted them the next day.  Of 149 eligible  voters, 49 cast ballots in favor of representation by the union,  and 46 cast ballots against the union.


5
Antelope Valley filed a timely objection to the election,  alleging that four eligible employees--Barbara Cameron,  Richard Guzman, Leo Molina, and Beverly Strong--did not  receive ballots during the election period.  After a hearing, an  NLRB Hearing Officer rejected the company's allegations  regarding the four employees, finding that each had had  adequate notice and opportunity to vote.  Antelope Valley  Bus Co., No. 31-RC-7776, slip op. at 14-15 (Jan. 20, 2000)  ("Hearing Officer Op.").  Thereafter, the Board adopted the  findings and recommendations of the Hearing Officer and  certified the union.  Antelope Valley Bus Co., No. 31-RC7776 (Apr. 17, 2000) ("Board Certification Op.").3


6
Following certification, the union asked Antelope Valley to  recognize it as the collective-bargaining representative for the  unit and to begin bargaining.  The company refused, and the  union filed a charge with the Board.  The NLRB's General  Counsel then issued a complaint alleging that the company's  refusal to bargain constituted an unfair labor practice in  violation of  8(a)(5) and (1) of the NLRA.4  In response, the  company admitted its refusal to bargain, but argued that the  refusal was not unlawful because certification of the union  had been improper.  The Board granted summary judgment  in favor of the General Counsel, holding that Antelope Valley  had violated the NLRA and ordering the company to bargain  with the union upon its request.  Antelope Valley Bus Co.,  331 N.L.R.B. No. 171 (2000).


7
Antelope Valley seeks review of the Board's final decision  and order.  It does not dispute that the use of a mail ballot  was appropriate in this case.  It contends, however, that the  Board's refusal to overturn the election in light of the failure  of four employees to receive ballots conflicts with prior  NLRB precedent and is unsupported by substantial evidence. The company further contends that the Board should have  used additional procedures to ensure that all eligible voters  received their election ballots.  We consider these three  arguments below.

II

8
Antelope Valley maintains that the Board misapplied its  controlling precedents in rejecting the company's objection to  certification of the union.  We review Board decisions in part  to determine whether "the Board acted arbitrarily or otherwise erred in applying established law to the facts of the  case."  International Union of Electronic, Electrical, Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532,  1536 (D.C. Cir. 1994) (internal quotations omitted).  The  Board "cannot ignore its own relevant precedent but must  explain why it is not controlling."  See B B & L, Inc. v.  NLRB, 52 F.3d 366, 369 (D.C. Cir. 1995).  However, it is not  necessary for the Board to distinguish a precedent expressly  if the grounds for distinction are readily apparent.  See  Gilbert v. NLRB, 56 F.3d 1438, 1445-46 (D.C. Cir. 1996).


9
In determining the validity of the election in this case, the  Hearing Officer relied on the "adequate notice and opportunity to vote" test of Lemco Construction, Inc., 283 N.L.R.B.  459, 460 (1987).  In Lemco, the Board upheld an election  notwithstanding that a number of eligible voters either did  not go to the polls or arrived after the polls were closed.  Id.  at 459.  "We will issue certifications," the Board held, "where  there is adequate notice and opportunity to vote and employees are not prevented from voting by the conduct of a party  or by unfairness in the scheduling or mechanics of the  election."  Id. at 460.


10
Antelope Valley argues that Lemco is an inappropriate  precedent for this case, because it arose in the context of a  challenge to a manual rather than mail ballot and because the  challenge there did not involve nonreceipt of a ballot but  rather the claim that too few eligible voters had voted for  them to be considered "representative" of the entire unit. But there is nothing that compels the Board to restrict the  Lemco test to the circumstances of that case.  Nor is there  anything unreasonable about the Board equating a failure to go to the polls with a failure to request a replacement mail  ballot, and concluding that neither is sufficient to invalidate  an election as long as the employee had adequate notice and  opportunity to vote.


11
Antelope Valley contends that the precedent the Board  should have applied is Star Baking Co., 119 N.L.R.B. 835  (1957), a case in which the Board set aside an election because  an employee whose vote could have been determinative did  not receive a mail ballot.  Id. at 836.5  But the rule enunciated in Star Baking--that "it is the responsibility of the Board"  to establish a procedure ensuring "that all eligible voters ...  be given an opportunity to vote," id.--is not inconsistent with  the test enunciated in Lemco.  The difference in the results  of the two cases is instead readily attributable to differences  in their facts.  In Star Baking, the Board found that, having  not received a mail ballot, the employee at issue did not have  an adequate opportunity to vote;  both parties agreed that it  "was not feasible for him to vote manually" because the  employee was stationed 45 miles from the polling place.  Id. In this case, by contrast, the Board found that the four  employees who failed to receive their mail ballots did have an  adequate opportunity to vote;  the stipulated election agreement gave them the option of requesting a duplicate mail  ballot.  In light of this clear distinction, the Board's refusal to  set aside the Antelope Valley election as it did the Star  Baking election was perfectly reasonable.6

III

12
Antelope Valley next argues that, even if the Lemco test  were proper in this case, the Board erred in finding that the  four employees had an adequate opportunity to vote.  We  review such a finding to determine whether it is "supported  by substantial evidence on the record considered as a whole." 29 U.S.C.  160(e) (1994);  see Universal Camera Corp. v.  NLRB, 340 U.S. 474, 477, 488 (1951).  In making that determination, we ask only "whether on this record it would have  been possible for a reasonable jury to reach the Board's  conclusion," and in so doing we give "substantial deference to  the inferences drawn by the NLRB from the facts."  Halle  Enters., Inc. v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001)  (citations and internal quotations omitted).


13
The company contends that the four drivers who did not  receive mail ballots did not have an adequate opportunity to  vote because they did not have adequate notice of the availability of replacement ballots.  This claim rings particularly  hollow since the notice procedure was contained in an election  agreement to which Antelope Valley stipulated, J.A. at 244,  and because the company concedes that "the Notices were  properly posted" pursuant to that agreement, Pet'r Br. at 5. But even without the agreement, the company's claim is  meritless.  The notices were large (251/2" by 14"), bold-blue posters, each with a banner reading "NOTICE OF ELECTION" running across the top.  Antelope Valley does not  suggest that the notices were unclear or difficult to understand, and concedes that they were placed in three locations  frequented by the drivers:  the window of the dispatcher's  inner office, the counter used by the drivers to complete their  paperwork in the dispatch office, and the door to the dispatch  office.  Indeed, it would have been hard for anyone leaving  the dispatch office to have missed the latter notice, as it was  tacked to the side of the door that the exiting employee had  to push to leave the room.  J.A. at 181-82.


14
Antelope Valley complains that placing the posters at the  Sylmar facility was not sufficiently likely to result in notice  because drivers were often away on road trips.  But that  theoretical objection has no place here:  according to their  own testimony, each of the employees was in the dispatch  office at least twice during the month in which the notices  were posted there.  J.A. at 35, 54-56, 72-73, 107-08;  see  Hearing Officer Op. at 9.  Even in a manual election it is not  necessary to prove actual notice.  Reasonable notice is sufficient, and the Board's conclusion that the notice here was  adequate is reasonable and supported by substantial evidence.7


15
Indeed, Antelope Valley's insistence on this argument is  surprising because two of the four employees conceded that  they did see the notice.  One of the two, Richard Guzman,  testified that he saw the notice in the dispatch office but did  not read it.  Although he knew that there was a mail ballot  election in progress and realized (during the voting period)  that he had not received a ballot, Guzman did not try to get a  replacement ballot because he was "too busy."  J.A. at 37. The other employee, Barbara Cameron, testified that she was  in the dispatch office on an almost daily basis during the  posting period, knew that there were "things" posted on the  walls concerning the election, but did not read them.  J.A. at  81-82.  Like Guzman, Cameron knew that an election was  being conducted by mail, and even called the company's  Human Resources Department (still within the voting period)  after she realized that she had not received a ballot.  However, when Human Resources told her to call the NLRB, she  chose not to, she said, because "that's not my job."  J.A. at  86.


16
The company contends that it would be wrong to rely on  such testimony to uphold the election, given Star Baking's  admonition that it is the Board's responsibility--not the employees'--to ensure that all eligible employees have the opportunity to vote.  But the Board's responsibility is only to  ensure that employees have an opportunity to vote;  it cannot  ensure that any individual employee takes advantage of that  opportunity.  Even in manual elections, adequate notice of  the time and place of voting is all the Board can require;  it  cannot force an employee to go to the polling place.8  In this  case, the Board provided those Antelope Valley employees  who failed to receive mail ballots with the opportunity to vote  by replacement ballot.  It is true, as the company contends,  that if such an employee failed to request a replacement  ballot, he or she could not vote.  But neither can an employee  who, despite adequate notice, fails to go to a manual polling  location.  As the old adage goes, you can lead a horse to  water ...

IV

17
Finally, Antelope Valley contends that the NLRB should  have utilized additional "procedures to ensure that all eligible  voters had received their election ballots."  Pet'r Br. at 22. One possible procedure suggested by the company is the use  of certified or registered mail.  Antelope Valley argues that  the NLRB's failure to utilize such a procedure should invalidate the election, notwithstanding that the company--before  it knew how the election would turn out--stipulated to an  election agreement that did not contemplate the use of such a  device.


18
This court is without authority to impose upon the NLRB  the kind of election procedures that it may deem most  appropriate.  As the Supreme Court has repeatedly noted,  "Congress has entrusted the Board with 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) (citing, e.g., Southern S.S. Co. v. NLRB, 316  U.S. 31, 37 (1942)).9  For the reasons stated above, we  conclude that the procedure employed in this case, a combination of mail ballots and notice of the opportunity to obtain  replacements, was a reasonable method of ensuring the employees' right to a fair and free choice.  Accordingly, we have no warrant for overturning it.  See B B & L, 52 F.3d at 369  ("We will uphold the Board's exercise of discretion unless its  action is unreasonable, arbitrary or unsupported by the evidence.");  see also NLRB v. Wackenhut Corp., 471 F.2d 761,  762 (7th Cir. 1972) (holding that the Board has discretion in  adopting election procedures and refusing to require it to poll  all employees to determine whether each actually received a  mail ballot).10


19
Antelope Valley further contends that the Board erred in  not vacating the election on the ground that the General  Counsel failed to present testimony regarding the procedures  the NLRB followed in preparing and mailing the ballots in  this case--particularly testimony that the NLRB actually  mailed the ballots to all employees on the Excelsior list.11 But it is not the Board that bears the burden of demonstrating the validity of an election;  rather, it is "the party challenging the results of a Board-certified election [that] carries  a heavy burden" of showing the election's invalidity.  Kwik  Care Ltd. v. NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996);  see  C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C. Cir. 1988). Petitioner cannot meet its burden of establishing that the  NLRB failed to mail out the ballots by showing that the Post  Office failed to deliver ballots to a small number of employees.12 It certainly cannot do so in a case in which the Board  received ballots back from two thirds of the eligible voters. As the Hearing Officer correctly stated, "[w]ithout more than  a mere unsubstantiated or non-specific assertion of Regional misconduct, lost mail ballots in and of themselves do  not rebut the presumption that the Region has performed as  it should."  Hearing Officer Op. at 13-14.  To the contrary, in  such circumstances, the few substantiated cases of nonreceipt  are readily explained as the product of the "vagaries of mail  delivery," rather than of a flaw in the NLRB's mailing  procedures.  J. Ray McDermott & Co. v. NLRB, 571 F.2d  850, 855 (5th Cir. 1978).


20
Finally, we note that Antelope Valley's failure to satisfy its  burden of proof distinguishes this case from a Sixth Circuit  case repeatedly cited by the company.  As Antelope Valley  notes, in NLRB v. Pinkerton's, Inc., 621 F.2d 1322 (6th Cir.  1980), the court did remand for an evidentiary hearing to  determine whether the NLRB actually sent ballots to all  employees.  In that case, however, the petitioner had established an unusual pattern of nondelivery--those who failed to  receive ballots all lived in the same region--that made the  court "particularly skeptical of the regularity of the Board's  procedures."  Id. at 1330.  Antelope Valley established no  similar ground for skepticism here.  See also id. at 1324  (acknowledging that "[t]he party objecting to the validity of  an election must bear the heavy burden of demonstrating by  specific evidence that the election was unfair").

V

21
We conclude that the Board's decision in this case was  consistent with precedent and supported by substantial evidence, and that the election procedure it utilized was a  reasonable method of ensuring the employees' right to a fair  and free choice of their bargaining representative.  Accord ingly, we deny Antelope Valley's petition for review and grant  the Board's cross-application for enforcement of its order.



Notes:


1
 Senior Circuit Judge Williams was in regular active service at  the time of oral argument.


2
  See Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966).


3
 At the hearing, Antelope Valley also alleged that one employee,  Garret Green, received a ballot too late to vote in the election.  The  Hearing Officer rejected that allegation on the ground that, inter  alia, it was outside the scope of the objection filed by the company. Hearing Officer Op. at 16.  The Board, however, found it unnecessary to pass on the allegation regarding Green:  because the Board  rejected the company's allegations concerning the other four employees, the allegation regarding Green could not affect the outcome  of the election.  Board Certification Op. at 2 n.1.  We find it  unnecessary to consider the claim regarding Green for the same  reason.


4
 Section 8(a) states, in relevant part:
It shall be an unfair labor practice for an employer -
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [NLRA  7];
...
(5) to refuse to bargain collectively with the representatives of his employees....
29 U.S.C.  158(a) (1994).  NLRA  7 guarantees employees "the  right to self-organization, to form, join, or assist labor organizations,  ... and to engage in other concerted activities for the purpose of  collective bargaining or other mutual aid or protection...."  29  U.S.C.  157 (1994).


5
 Antelope Valley does not dispute that a disenfranchised employee's vote must be potentially determinative to justify setting aside  an election, see, e.g., Acme Bus Corp., 316 N.L.R.B. 274, 275 (1995),  but argues that since the election at issue here was decided by  three votes, the votes of the four employees could have changed the  result.  Pet'r Br. at 12 n.9.


6
 The other cases cited more briefly by Antelope Valley, most  involving manual ballots, are also readily distinguishable as cases in  which the employees were deprived of an opportunity to vote.  See,  e.g., Wolverine Dispatch, Inc., 321 N.L.R.B. 796 (1996) (ordering a  new election where no Board agent or ballot box was present at the  polling place during part of the election period);  Whatcom Sec.  Agency, Inc., 258 N.L.R.B. 985 (1981) (same where the doors of the  polling place were locked for a substantial period of time and a  large number of eligible voters did not vote);  Glenn McClendon  Trucking Co., 255 N.L.R.B. 1304, 1304 (1981) (same where employee truck drivers "were prevented from voting" because they were  on assignments "distant from the polling place" on the day of the  (manual) election);  B & B Better Baked Foods, Inc., 208 N.L.R.B.  493, 493 (1974) (same where Board agent opened polls "so late as to  possibly disenfranchise" employees on an earlier shift);  Yerges Van  Liners, Inc., 162 N.L.R.B. 1259, 1260-61 (1967) (same where potentially dispositive voter "had no opportunity to vote through no fault  of his own" because he was away from the polling place on  assignment);  see also Davis & Newcomer Elevator Co., 315  N.L.R.B. 715 (1994) (remanding where the Board failed to follow its  rules and did not send a new ballot to an identifiable employee  whose original ballot arrived at the NLRB in two pieces).


7
 See, e.g., Jowa Sec. Servs., Inc., 269 N.L.R.B. 297, 298 (1984)  ("The Board has never required that employees receive actual  notice of an impending election.  Rather, the standard has always  been that reasonable measures must be taken to assure that unit  employees are aware of their right to exercise freely their franchise....  This is traditionally accomplished through the posting of  the official notice of election in conspicuous places prior to the  election.").


8
  See Lemco, 283 N.LR.B. at 460 ("The fundamental purpose of a  Board election is to provide employees with a meaningful opportunity to [vote]....  The law does not compel any employee to vote,  and the law should not permit that right, to refrain from voting, to  defeat an otherwise valid election.");  see also Waste Mgmt. of  Northwest Louisiana, Inc., 326 N.L.R.B. 1389, 1389 (1998) ("When  an employee does not vote for reasons that are beyond the control  of a party or the Board, ... the failure to vote is not a basis for  setting aside the election.");  National Van Lines, 120 N.L.R.B.  1343, 1346 (1958) (finding that employees' failure to cast valid  ballots was not due to lack of "an adequate opportunity ... , but  rather was occasioned by their lack of diligence and interest in  mailing their ballots on a date which would have assured their  timely receipt").


9
 See also Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126 (D.C. Cir.  1996) ("As a general matter, the Board enjoys broad discretion in  its administration of representation elections....  ");  C.J. Krehbiel  Co. v. NLRB, 844 F.2d 880, 885 (D.C. Cir. 1988) ("The case for  [judicial] deference is stron[g], as Congress has charged the Board,  a special and expert body, with the duty of judging the tendency of  electoral flaws to distort the employees' ability to make a free  choice." (internal quotations omitted)).


10
 In light of the replacement option provided in this case, we  need not decide whether such an option is required for an election  to be regarded as valid if a small but potentially dispositive number  of employees fail to receive their initial mail ballots.  See J. Ray  McDermott & Co. v. NLRB, 571 F.2d 850, 855 (5th Cir. 1978)  (stating, in a case in which there apparently was no such option,  that "[i]t cannot be said that an election by mail is per se invalid  whenever a potentially decisive number of votes, no matter how  small, is lost through the vagaries of mail delivery").


11
 The company also contends that the Hearing Officer improperly denied its request to see the NLRB's case file so that it could  challenge the mailing procedures followed by the agency.  Pet'r Br.  at 25.  Examination of the hearing transcript, however, reveals that  Antelope Valley merely requested production of a list of those  ballots actually received, and did not request access to the entire  file.  See J.A. at 15-16.


12
 Even the testimony of non-delivery was less than overwhelming.  Three of the four employees testified that they did not collect  their own mail, but rather let others pick it up for them while they  were on the road.  See J.A. at 40, 53, 62-63, 111-12.


