United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2001 Decided January 4, 2002
No. 00-1405
Antelope Valley Bus Company, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
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. Wasie-
lewski.
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: 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 s 8(a)(5) and (1) of the National Labor
Relations Act (NLRA), 29 U.S.C. s 158(a)(5) & (1), by refus-
ing to bargain with the Chauffeurs, Sales Drivers, Ware-
housemen 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 elec-
tion 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 cross-
application for enforcement of its order.
I
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 approx-
imately 149 drivers.
On August 23, 1999, the union filed an election petition with
the NLRB, seeking to represent Antelope Valley's bus driv-
ers. The parties entered into a stipulated election agree-
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1 Senior Circuit Judge Williams was in regular active service at
the time of oral argument.
ment, 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.
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 pro-
vided 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.
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-RC-
7776 (Apr. 17, 2000) ("Board Certification Op.").3
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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 unneces-
sary to pass on the allegation regarding Green: because the Board
rejected the company's allegations concerning the other four em-
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 s 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).
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
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ployees, 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 s 7];
...
(5) to refuse to bargain collectively with the representatives
of his employees....
29 U.S.C. s 158(a) (1994). NLRA s 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. s 157 (1994).
received their election ballots. We consider these three
arguments below.
II
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 other-
wise erred in applying established law to the facts of the
case." International Union of Electronic, Electrical, Sala-
ried, 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).
In determining the validity of the election in this case, the
Hearing Officer relied on the "adequate notice and opportuni-
ty 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 employ-
ees 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.
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.
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 enunciat-
ed 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 agree-
ment 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
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5 Antelope Valley does not dispute that a disenfranchised employ-
ee'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
III
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. s 160(e) (1994); see Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477, 488 (1951). In making that deter-
mination, 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).
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 avail-
ability 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
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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 employ-
ee 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 poten-
tially 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).
posters, each with a banner reading "NOTICE OF ELEC-
TION" running across the top. Antelope Valley does not
suggest that the notices were unclear or difficult to under-
stand, 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.
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 suffi-
cient, and the Board's conclusion that the notice here was
adequate is reasonable and supported by substantial evi-
dence.7
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
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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 fran-
chise.... This is traditionally accomplished through the posting of
the official notice of election in conspicuous places prior to the
election.").
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. Howev-
er, 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.
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 em-
ployees'--to ensure that all eligible employees have the op-
portunity 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,
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8 See Lemco, 283 N.LR.B. at 460 ("The fundamental purpose of a
Board election is to provide employees with a meaningful opportuni-
ty 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").
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
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 invali-
date 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.
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 nec-
essary to insure the fair and free choice of bargaining repre-
sentatives 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 combina-
tion of mail ballots and notice of the opportunity to obtain
replacements, was a reasonable method of ensuring the em-
ployees' right to a fair and free choice. Accordingly, we have
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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)).
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 evi-
dence."); 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
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 demonstrat-
ing the validity of an election; rather, it is "the party chal-
lenging 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 employ-
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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 improper-
ly 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.
ees.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 [NLRB]
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).
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 estab-
lished 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
We conclude that the Board's decision in this case was
consistent with precedent and supported by substantial evi-
dence, 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-
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12 Even the testimony of non-delivery was less than overwhelm-
ing. 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.
ingly, we deny Antelope Valley's petition for review and grant
the Board's cross-application for enforcement of its order.