275 F.3d 112 (D.C. Cir. 2002)
Transportation Maintenance Services, L.L.C., Petitionerv.National Labor Relations Board, Respondent
No. 00-1427
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2001Decided January 4, 2002

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Larry P. Kaplan argued the cause for petitioner.  With  him on the briefs were Mark W. Weisman and Michelle M.  Gaffney.
Richard A. Cohen, Senior 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 Fred L. Cornnell, Supervisory Attorney.
Before:  Ginsburg, Chief Judge, Henderson, Circuit Judge,  and Williams, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge:


1
An employee of Transportation  Maintenance Services petitioned the National Labor Relations Board to hold an election to decertify his union.  The  Board conducted an election but then impounded the ballots  pending its review of the Union's claim that the election was  time-barred.  Before the Board had ruled upon that objection, the employee moved to withdraw his petition, claiming  that he and his co-workers no longer wanted to decertify the  Union.  The Board granted that request and thus set the  election to naught.  Because the Board's decision is inconsistent with the preference for secret ballot elections expressed  in the National Labor Relations Act, we grant TMS's petition  for review and remand this matter for further proceedings  before the Board.

I. Background

2
Transportation Maintenance Services fuels and services  trucks in Bridgeton, Missouri.  The employees at its nearby  sister company, C & M Services, Inc., are represented by two  unions:  the Machinists represent the skilled mechanics while  Local 618, an affiliate of the Teamsters, represents the unskilled employees.  In May, 1996 Local 618 charged TMS  with unfair labor practices for, among other things, transferring unskilled workers from C & M to TMS in breach of the  collective bargaining agreement between C & M and Local  618.  The parties settled the matter in late 1996 with TMS  agreeing to recognize Local 618 as the exclusive bargaining  representative of its unskilled employees.


3
TMS and Local 618 bargained from January to early May,  1997 without reaching an agreement.  Meanwhile, in late  April one of the six TMS employees represented by Local  618, Charles Maher, petitioned for a decertification election.  The Regional Director of the Board granted Maher's petition  over the objection of the Union that an election was barred  because the Union had not had a reasonable time to bargain. See Mar-Jac Poultry Co., Inc., 136 N.L.R.B. 785, 786 (1962). The Regional Director reasoned that, absent "affirmative  evidence ... establishing that the recognition was extended  in good faith, on the basis of a previously demonstrated  majority, and at a time when only that union was actively  engaged in organizing the unit employees," a settlement  agreement by which an employer recognizes a union does not  erect a so-called 'recognition bar' to a decertification election  and that, in any event, a reasonable period of time had  elapsed between recognition and the decertification petition. Regional Director's Decision, 14-RD-1568, at 4 n.3 (May 29,  1997).


4
The decertification election was scheduled for June 26,  1997.  On June 25 the Board granted Local 618's request to  review the Regional Director's decision authorizing the election.  The election was held as scheduled, but the ballots  were impounded pending the Board's review.  More than a  year had passed without the Board's having decided whether  the election should have been held when, on July 15, 1998  Maher asked to withdraw his petition for election.  The  Board granted Maher's request with alacrity and almost  another year later denied, by a vote of 3-2, TMS's motion to  reconsider.


5
Local 618 then requested that TMS resume contract negotiations.  When TMS refused based upon its disagreement  with the Board's ruling, Local 618 charged TMS with an  unfair labor practice.  The Board ruled against TMS, Transp.  Maint. Servs., 331 N.L.R.B. No. 140 (2000) (Decision), and  the Company now petitions this court for review.

II. Analysis

6
The Board granted Maher's request to withdraw his election petition on the ground that, as expressed in the Board's  Casehandling Manual, its "general policy ... favor[s] the  effectuation of a petitioner's genuine voluntary desire to [terminate] the proceeding."  Transp. Maint. Servs., 328  N.L.R.B. No. 93, at 1 (1999) (quoting NLRB Casehandling  Manual, Representation Proceedings (Part II),  11110). TMS contends that the Board erred in adhering to its policy  in this case because here the employee's request came after  the election had been held.


7
The National Labor Relations Act provides that "[i]f the  Board finds ... that ... a question of representation exists,  it shall direct an election by secret ballot and shall certify the  results thereof."  29 U.S.C.  159(c)(1).  As a matter of  practice, however, the Board does not always certify the  results of an election;  if there is a challenge to the legitimacy  of the election, then the Board impounds the ballots pending  its resolution of the dispute.  If the Board ultimately determines that the election is barred or otherwise invalid, then it  simply discards the ballots.


8
In this case, however, the Board failed to certify the results  even though it had not determined that the election was  barred, as the Union claimed.  That step is in some tension  with the Act's directive that the Board "shall certify the  results" of a (valid) election, but in at least one circumstance  such a failure to certify seems only reasonable even though  the election has not been held invalid:  When a union states  that if elected it will not represent the employees, the results  of the election are made moot and the Board does not tally  the ballots.  See Transp. Maint. Servs., 328 N.L.R.B. No. 93,  at 2 n.2 (Members Hurtgen and Brame, dissenting).


9
Cases presenting a reason good enough for the Board to  disregard an election are rare.  The Act establishes an electoral apparatus to be administered by the Board because  formal elections with secret ballots best express employees'  free choice.  See NLRB v. Gissel Packing Co., 395 U.S. 575,  602 (1969) ("[S]ecret elections are generally the most satisfactory--indeed the preferred--method of ascertaining whether  a union has majority support");  Conair Corp. v. NLRB, 721  F.2d 1355, 1383 (D.C. Cir. 1983) ("Our national labor relations  policy is designed to effectuat[e] ascertainable employee free  choice and expressed majority sentiment").  When a valid election has been held, the results are to be counted and  given effect except when there is a particularly compelling  reason for not doing so, as in the case of the unwilling union.


10
The Board argues that denying Maher's withdrawal request could, by saddling the employees with the results of the  votes they cast a year earlier, deprive them of representation  they later came to value:  Maher wrote in his request that the  "employees were getting upset with the Employer and wanted to withdraw the [decertification] petition."  Transp.  Maint. Servs., 328 N.L.R.B. No. 93, at 1.  The Board saw no  reason to doubt Maher's assertion because the Company  offered no evidence to rebut it.  Id.


11
The Board's position ignores the presumption in favor of an  election to resolve a question of representation.  Whether an  election may be disregarded even upon the basis of solid  evidence that most employees' preferences have changed  since they voted is a nice question but one we need not  address today, cf. Garvey Marine, Inc. v. NLRB, 245 F.3d  819, 828-29 (D.C. Cir. 2001) (upholding Board's decision to  enforce bargaining order despite significant turnover among  employees after order was issued), for the evidence before the  Board in this case could hardly have been more flimsy.  The  only indication of the employees' post-election preference was  Maher's hearsay assertion that his co-workers agreed with  him.  Although hearsay evidence can be sufficient to raise a  question of representation, see Allentown Mack Sales &  Serv., Inc. v. NLRB, 522 U.S. 359, 368-71 (1998) (hearsay  evidence created good-faith doubt about union's majority  status), Maher's unsubstantiated, self-serving statement cannot possibly be thought to overcome the presumption--if the  presumption is to have any force at all--in favor of adhering  to the results of the electoral process.  Otherwise it would be  open to a zealous union adherent--or indeed, a zealous opponent of the union in a case involving an initial election the  employer's exceptions to which are pending before the  Board--to displace the electoral process with a series of one-on-one chats with his co-workers.


12
Relatedly, the Board erred by faulting TMS for failing to  rebut Maher's claim.  First, the burden of showing the  unusual circumstance that justifies disregarding the electoral  process lay with the General Counsel, not with the employer. Second, the employer would have risked an unfair labor  practice charge if, in order to rebut Maher's assertion, it had  followed Maher's example by polling its employees about  their preferences regarding union representation.  See Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C. Cir.  1997) ("An employer 'poll' may in itself interfere with employees' exercise of their  7 rights because any attempt by an  employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in  the mind of the employee if he replies in favor of unionism  and, therefore, tends to impinge on his Section 7 rights").


13
In sum, the Board did not base its acceptance of Maher's  request upon substantial evidence.  It disregarded the results  of a potentially valid election merely because one employee  said that he and his fellows wanted the results thrown out. We therefore vacate the Decision and remand this matter for  the Board to decide at long last whether, as the Union claims,  there was a recognition bar to the decertification election of  June 26, 1997.

III. Conclusion

14
For the foregoing reasons, the petition for review is


15
Granted.

