Nathan Katz Realty, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 6, 2001 Decide June 12, 2001

No. 00-1238

Nathan Katz Realty, LLC, et al.,
Petitioners

v.

National Labor Relations Board,
Respondent

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

G. Peter Clark argued the cause and filed the briefs for
petitioners.

Ruth Burdick, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the briefs
were Leonard R. Page, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Margaret A. Gaines, Supervi-
sory Attorney.

Before: Williams, Sentelle and Henderson, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Nathan Katz Realty, LLC man-
ages thirty apartment buildings in Queens, New York. After
Local 32B-32J, Service Employees International Union,
AFL-CIO ("the Union") petitioned to organize Katz's service
employees, a National Labor Relations Board ("NLRB") Re-
gional Director determined that the employees constituted
two separate units and ordered that the two elections be held
on the same day at different times. The Director also found
that the superintendents in Katz's buildings were not supervi-
sors under the National Labor Relations Act ("NLRA").

In one of the two elections, the employees voted to be
represented by the Union. Following the election, Katz filed
several objections, contending inter alia that (1) agents of the
Union had improperly interfered with the election by being
present in a no-electioneering zone directly outside the en-
trance of the election site, and (2) the Regional Director erred
in deciding not to count the ballots from the first election
until after the second election was completed. The Regional
Director overruled Katz's objections, and his decision was
affirmed by the Board.

When Katz refused to bargain with the Union, the Board's
General Counsel filed a complaint alleging that Katz's refusal
was an unfair labor practice that violated s 8(a)(5) and (1) of
the NLRA. 29 U.S.C. s 155(a)(5), (1). Katz responded to
the complaint by renewing its earlier objections, incorporat-
ing them by reference in a letter to the Board. The Board
ultimately ruled that Katz had engaged in unfair labor prac-
tices and ordered it to bargain with the Union. See Nathan
Katz Realty LLC, 331 N.L.R.B. No. 22 (May 23, 2000).

Katz petitions us to review the Board's decision, again
arguing that its superintendents are supervisors, the Union's
agents engaged in improper conduct during the election, and

the Director erred by refusing to count the first ballots before
the second election began. In a cross-application for enforce-
ment of its order, the Board contends that these issues are
not properly before us because Katz failed to preserve them
in the underlying representation case.

For reasons more fully set out below, we conclude that
Katz properly preserved all of the issues it raises in its
petition. Furthermore, we hold that the Board failed to
provide a reasoned basis for concluding that the Union's
agents did not interfere with the election and for deciding to
delay tallying the ballots cast in the first election. According-
ly, we grant Katz's petition in part and remand the case for
further proceedings.

I. BACKGROUND

In the spring of 1999, the Union petitioned the NLRB
seeking an election among Katz's superintendents and porters
to permit the Union to become their bargaining representa-
tive. Following a hearing, the NLRB Regional Director
found that the employees of all the buildings but one consti-
tuted an appropriate unit ("multi-site unit"). The employees
of the other building comprised a separate unit ("Sima unit").
The Regional Director scheduled the two units' representa-
tion elections for the same day, with the Sima election in the
morning and the multi-site election in the afternoon.

In his Decision and Direction for Election, the Director
concluded that the buildings' superintendents were not super-
visors under the NLRA. See 29 U.S.C. s 152(11). Specifi-
cally, the Director determined that "[a]t most, superinten-
dents possess some low-level authority to assign and oversee
the porters, but without using independent judgment and
without exercising any real supervisory authority over their
employment status." Nathan Katz Realty, LLC, No. 29-RC-
9265, slip op. at 19 (July 1, 1999). The superintendents
therefore were included in the units. Katz challenged this
ruling, but the Board summarily affirmed it. See Nathan
Katz Realty, LLC, No. 29-RC-9265 (July 26, 1999).

 Two and a half weeks before the elections, the Union
requested that the Regional Director not count the ballots
from the Sima election until the voting in the multi-site
election was over. Although Katz objected, the Regional
Director granted the Union's request, asserting that "[t]o
count the ballots in both units simultaneously guarantees that
neither party will enjoy an unfair advantage over the other
based on the result of the election in the SIMA unit." Letter
from Alvin Blyer, Regional Director, NLRB, to G. Peter
Clark, Counsel for Nathan Katz Realty, LLC (July 16, 1999).

On the day of the elections, the two employees composing
the Sima unit voted against the Union, but the Union suc-
ceeded in the multi-site election, receiving 21 of 40 employee
votes. Following the elections, Katz filed three objections:
(1) Union agents interfered with the elections by stationing
themselves in a no-electioneering zone during the voting; (2)
the Union provided a substantial benefit to Katz's employees
by providing them with cellular phones during the period
leading up to the elections; and (3) the Director interfered
with the multi-site election by refusing to count the Sima
ballots until after the multi-site election. The Director dis-
missed objection number three and most of the allegations in
objection number one without a hearing. Their dismissal was
summarily affirmed by the Board. See Nathan Katz Realty,
LLC, No. 29-RC-9265 (Oct. 1, 1999). The Director later
dismissed objection number two and the remaining allegation
in objection number one.

After the Union was certified, it sought to bargain with
Katz, but Katz refused. The NLRB General Counsel filed a
complaint alleging that Katz's refusal constituted an unfair
labor practice. When the General Counsel filed a motion for
summary judgment, the Board issued a notice to show cause
to Katz. After Katz responded to the notice, the Board found
that Katz had engaged in unfair labor practices in violation of
s 8(a)(5) and (1) of the NLRA. See Nathan Katz Realty
LLC, 331 N.L.R.B. No. 22 (May 23, 2000).

Katz petitions this Court for review of the Board's unfair
labor practice decision. In its petition, Katz reasserts its

arguments that (1) the buildings' superintendents are supervi-
sors as defined by the NLRA, (2) the Union's agents inter-
fered with the elections through their presence in a no-
electioneering zone during the voting, and (3) the Regional
Director interfered with the multi-site election by refusing to
count the Sima ballots until after both elections were complet-
ed. The Board filed a cross-application for enforcement of its
order.

II. ANALYSIS

A. Jurisdiction

The Board contends that the issues raised by Katz are not
properly before the Court. Specifically, the Board argues
that Katz did not explicitly preserve the issues it had present-
ed in the underlying representation proceeding in accordance
with s 10(e) of the NLRA. 29 U.S.C. s 160(e). In its
response to the Board's notice to show cause in the unfair
labor practice proceeding, Katz wrote that it

relies upon its Answer to the Complaint in Case 29-CA-
23280, the entire record in the related representation
case, Case 29-RC-9265, including the September 21,
1999 Request for Review on the Acting Regional Di-
rector's Supplemental Decision On Objections On Behalf
Of Nathan Katz Realty, LLC, and the transcripts and
records of the proceedings before the hearing officers on
the petition and on the election objections, in opposition
to General Counsel's Motion for Summary Judgment in
the above-referenced cases.

Letter from G. Peter Clark, Counsel for Nathan Katz Realty,
LLC, to John J. Toner, Executive Secretary, NLRB (Apr. 18,
2000). The Board suggests that this statement was insuffi-
cient to provide it with adequate notice that Katz intended to
pursue specific issues in its petition for review.

Section 10(e) provides that "[n]o objection, that has not
been urged before the Board, its member, agent, or agency,
shall be considered by the court, unless the failure or neglect
to urge such objection shall be excused because of extraordi-

nary circumstances." 29 U.S.C. s 160(e). Accordingly, a
"Court of Appeals lacks jurisdiction to review objections that
were not urged before the Board." Woelke & Romero Fram-
ing, Inc. v. NLRB, 456 U.S. 645, 666 (1982). The critical
inquiry in evaluating the Court's jurisdiction to review an
objection is "whether the Board received adequate notice of
the basis for the objection." Alwin Mfg. Co. v. NLRB, 192
F.3d 133, 143 (D.C. Cir. 1999) (internal quotation omitted).

Under the Board's regulations, once a party litigates an
issue in a representation proceeding, it is prohibited from
relitigating those same issues in a subsequent unfair labor
practice proceeding. See 29 C.F.R. s 102.67(f); see also
Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d 1146, 1151
(D.C. Cir. 2000). In light of the no-relitigation rule, Katz
contends that its statement provided the Board with sufficient
notice that it intended to raise the same issues in its petition
for review that it previously had raised in the representation
proceeding. Katz claims that forcing a party to reargue its
representation and election challenges would serve no legiti-
mate purpose.

Last year, in Alois Box Co. v. NLRB, we agreed that a
petitioner does not need "to provide yet another detailed
notice of the issues which have already been presented to the
Board in the representation cases" when it is responding to a
later unfair labor practice charge. 216 F.3d 69, 77 (D.C. Cir.
2000) (internal quotation omitted). We explained, however,
that when a petitioner completely fails to raise an issue
during an unfair labor practice proceeding, "the Board was
entitled to treat the issue as abandoned," and the petitioner
"has forfeited its right to challenge the Board's disposition
... in the representation proceeding." Id. at 77, 78. Be-
cause the Alois Box petitioner neglected to even reference
the contested issue during the unfair labor practice proceed-
ing, we declined to decide "what would provide sufficient
notice" to preserve an issue for judicial review. Id. at 78.
That question is now squarely before us.

 This question has been presented in two of our sister
circuits, the Ninth and Second. In NLRB v. Best Products
Co., the petitioner sought to preserve its election objections
during an unfair labor practice proceeding by stating that it
"incorporates by reference and reaffirms by reference its post
election objections and brief." See 765 F.2d 903, 909 (9th Cir.
1985). The Ninth Circuit held that this statement was suffi-
cient to preserve the objections for judicial review. See id.
Specifically, the Ninth Circuit ruled that a party can preserve
an issue by providing a "firm indication to the Board of the
objecting party's non-abandonment of the issue." Id. at 910.

In contrast, the petitioner in Schnurmacher Nursing Home
v. NLRB sought to preserve arguments it had made in a
representation case by stating during a later unfair labor
practice proceeding that it "disputes the ... other findings as
set forth in [its] Request for Review" of the Regional Di-
rector's representation decision. 214 F.3d 260, 270 n.3 (2d
Cir. 2000). This statement appeared in a footnote in the
petitioner's response to a summary judgment motion in the
unfair labor practice proceeding. See id. Describing the
petitioner's statement as "cryptic," the Second Circuit held
that it was insufficient to preserve the issues for judicial
review. Id. Although the Schnurmacher Nursing Home
court did not provide any substantive analysis in arriving at
its conclusion, it did cite two cases. Those cases, however, do
not support the court's holding.

First, the Second Circuit cited the Supreme Court's deci-
sion in Marshall Field & Co. v. NLRB, specifically referenc-
ing the Court's statement that a " 'general objection [to "each
and every recommendation" of a trial examiner's report] did
not apprise the Board that petitioner intended to press the
question now presented.' " Id. (quoting 318 U.S. 253, 255
(1943) (per curiam)). This statement, however, is simply
dicta, drawn out of its original context. The Marshall Field
Court expressly decided as it did because it could not "find
that, at any stage of the proceedings before the Board, the
objection now urged ... was presented to it or to any
member or agent of the Board." 318 U.S. at 255 (emphasis
added).

 Second, the Schnurmacher Nursing Home court cited
NLRB v. Star Color Plate Service to note in a parenthetical
that "raising [an] issue in [a] representation proceeding does
not suffice to preserve it on review of [an] order in [a] related
unfair labor practice proceeding." Schnurmacher Nursing
Home, 214 F.3d at 269 n.3 (citing 843 F.2d 1507, 1510 n.3 (2d
Cir. 1988)). This parenthetical does not by itself support the
Schnurmacher Nursing Home conclusion. It does, however,
support the unremarkable basis for the Star Color ruling.
The Star Color court held that it lacked jurisdiction to
consider the specific issue raised by petitioner on judicial
review. This holding followed from the fact that the issue
"was raised in the original representation proceeding," but
"was not raised in the unfair labor practice proceeding."
843 F.2d at 1510 n.3 (emphasis added).

Neither Star Color nor Marshall Field compels the Second
Circuit's ruling in Schnurmacher. Indeed, together these
cases stand simply for the rule that we articulated in Alois
Box--the Board may treat as abandoned any issue not raised
in an unfair labor practice proceeding. Accordingly, we do
not find Schnurmacher Nursing Home persuasive.

We are persuaded instead to follow the Ninth Circuit's
approach: "A firm indication to the Board of the objecting
party's non-abandonment of the issue is generally adequate to
preserve it for our review." Best Products Co., 765 F.2d at
910. In light of the no-relitigation rule, a detailed restate-
ment of the arguments raised during representation proceed-
ings or in election objections would be futile. See id. Section
10(e) ensures that the Board has an opportunity to entertain
questions that parties will later ask appellate courts to re-
view. See Marshall Field, 318 U.S. at 256. To meet this
objective, we consider whether a party has given the Board
adequate notice of the basis for its objection, see Alois Box,
216 F.3d at 78, and that it "intends to press the specific issue
it now raises" on appeal, NLRB v. Seven-Up Bottling Co.,
344 U.S. 344, 350 (1953). When the Board already has had an
opportunity to consider an issue in an earlier proceeding, the
party simply needs to provide a firm indication that it has not
abandoned the issue in a later unfair labor practice proceed-

ing. As in this case, incorporating earlier arguments by
reference generally provides the Board with adequate notice.

Katz responded to the NLRB General Counsel's motion for
summary judgment by stating that it relied upon "the entire
record in the related representation case, Case 29-RC-9265,
including the September 21, 1999 Request for Review on the
Acting Regional Director's Supplemental Decision On Objec-
tions On Behalf Of Nathan Katz Realty, LLC." Letter from
G. Peter Clark, Counsel for Nathan Katz Realty, LLC, to
John J. Toner, Executive Secretary, NLRB (Apr. 18, 2000).
This reference to the representation case is sufficiently spe-
cific to preserve the issues Katz raises for judicial review. In
the underlying representation proceeding, Katz had appealed
three issues to the Board, including whether its superinten-
dents are supervisors. In the September 21 Request for
Review, Katz appealed only two objections to the Board:
whether Union agents had engaged in improper electioneer-
ing and whether the Director erred in not counting the Sima
election ballots until the multi-unit election was completed.
These are the same issues it now asserts in its petition to this
Court.

Indeed, in the decision now under review, the Board noted
that Katz "attacks the validity of the certification on the basis
of its objections to the election and the Board's unit determi-
nation in the representation proceeding." Nathan Katz Real-
ty, 331 N.L.R.B. slip op. at 1. Given this statement, we are
astounded that the Board now argues that it did not receive
sufficient notice concerning the three issues Katz raises in its
petition. The only "objections to the election" Katz appealed
to the Board were the two addressed in the September 21
Request for Review. Likewise, the supervisor issue is one of
only two substantive issues Katz appealed to the Board
concerning the "unit determination." Katz's response to the
summary judgment motion gave a firm indication that it was
not abandoning the issues it had previously raised, and there-
fore unquestionably provided the Board with sufficient notice.

The Board raises the alarming specter that greater speci-
ficity is "fundamental" to its "fair and expedient administra-

tion" of the NLRA. Brief for the NLRB at 15. If the Board
is so seized with concern about this question, it simply could
issue a rule requiring more specific objections. We should
not have to point out that such a rule would govern an
internal procedure. It therefore would not be subject to
notice and comment. See 29 U.S.C. s 156; 5 U.S.C. s 553.
In fact, the Board could easily promulgate such a rule at any
time. In the future, we expect the Board will pursue that
option rather than crying out to the court for help.

The Board was afforded two opportunities to pass on each
of the issues Katz raises in its petition. On both occasions,
the Board summarily affirmed the Regional Director's rul-
ings. Section 10(e) has not been threatened in this case. We
therefore turn to the merits of Katz's petition.

B. Superintendents as Supervisors

Katz employs two property managers who each oversee
fifteen of its apartment buildings. The buildings are staffed
by superintendents and porters. At the pre-election hearing,
Katz argued that its superintendents should be designated as
supervisors under the NLRA. The Regional Director found
that they were not supervisors, and the Board affirmed this
finding. In its petition for review, Katz contends that the
superintendents are supervisors because they effectively dis-
cipline the porters, make hiring recommendations, assign
work to porters, set porters' schedules, and recommend wage
increases. Katz further contends that this conclusion is
mandated by a previous Board ruling, Planned Bldg. Servs.,
Inc., 318 N.L.R.B. 1049, 1059-61 (1995), in which a superin-
tendent for other New York City apartments was found to be
a supervisor.

We will uphold the Board's determination of whether an
employee is a supervisor as long as it is in accordance with
law, supported by substantial evidence, and is the product of
reasoned decisionmaking. See Brusco Tug & Barge Co. v.
NLRB, No. 00-1183, slip op. at 4 (D.C. Cir. May 1, 2001). In
light of its expertise, we accord the Board "a large measure of
informed discretion" in making this determination. Passaic

Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir. 1984)
(internal quotation omitted). The burden of proving that an
employee is a supervisor must be carried by the party
asserting it. See NLRB v. Ky. River Cmty. Care, Inc., No.
99-1815, slip op. at 4-5 (U.S. May 29, 2001); Beverly Enters.-
Mass., Inc. v. NLRB, 165 F.3d 960, 962 (D.C. Cir. 1999).

Employees who are supervisors are excluded from the
NLRA's protection. See 29 U.S.C. s 152(3). The NLRA
defines "supervisor" as:

[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.

Id. s 152(11). As this Court has explained before, under the
statute, "the employee must possess at least one of the twelve
types of authority set out in the statute, the exercise of that
authority must require the use of independent judgment, and
the authority must be held in the employer's interest." VIP
Health Servs., Inc. v. NLRB, 164 F.3d 644, 648 (D.C. Cir.
1999). Whether an employee exercises independent judg-
ment is an inquiry into "the degree of discretion exercised
with respect to the statutory indicia of supervisory status. If
an individual's discretion ... is tightly constrained, then her
exercise of that authority is 'routine....' " Beverly Enters.-
Penn., Inc. v. NLRB, 129 F.3d 1269, 1270 (D.C. Cir. 1997)
(per curiam) (mem.). In this case, the Board's determination
that Katz's superintendents are not supervisors is supported
by substantial evidence and is the product of reasoned deci-
sionmaking.

Katz avers that the "most notable exercise of a superinten-
dent's supervisory authority is found in the area of disci-
pline." Brief for Petitioners at 29. Katz claims that its
evidence demonstrates that the superintendents effectively
discipline porters--or at least effectively recommend disci-

pline. Although the record includes testimony that superin-
tendents theoretically could discipline porters, Katz offered
no evidence that a superintendent ever actually had disci-
plined a porter. One of Katz's property managers testified
that a superintendent could suspend a porter for hitting a
tenant, but the manager acknowledged that he had never
talked with any superintendent about this alleged authority.
Without specific evidence that any superintendent had disci-
plined a porter, we cannot possibly conclude that the Regional
Director erred.

A Katz property manager also testified that superinten-
dents could make recommendations on discipline, but "the
kind of option I'm taking will be my decision." This assertion
does not establish that any superintendent had in fact effec-
tively recommended discipline. Indeed, the record reflects
that Katz failed to offer any evidence that a superintendent's
recommendation had "resulted in an adverse personnel ac-
tion." Beverly Enters.-Penn., 129 F.3d at 1270. Although
Katz did proffer testimony that a superintendent informed a
property manager that a porter "wasn't doing a good job,"
"mere reporting is insufficient to establish that [employees]
effectively recommend discharge or discipline." VIP Health
Servs., 164 F.3d at 648. Accordingly, we hold that the
Regional Director's determination is supported by substantial
evidence.

Katz's other arguments concerning superintendents' super-
visory authority do not fare any better. First, Katz claims
that superintendents effectively recommend hiring porters.
Yet, Katz failed to offer any evidence that superintendents
have in fact made such effective recommendations, except in
the case of one superintendent who recommended his wife for
a job. As the Board has ruled in the past, "[i]t is scraping
the bottle [sic] to argue that ... recommendations of mem-
bers of his family ... prove the supervisory status contem-
plated in the Act." Pierre Pellaton Enters., Inc., 201
N.L.R.B. 409, 412 (1973). Absent evidence of other effective
recommendations, Katz cannot carry its burden of proof,
much less show that the Regional Director's decision is not
supported by substantial evidence.

 Second, Katz contends that superintendents assign work to
porters. Those assignments, however, are generated from
tenant requests. When the Board has found that a superin-
tendent exercises independent judgment in assigning work,
the Board has relied on specific evidence of that judgment.
For example, in Planned Building Services, the NLRB's
decision was based on evidence showing that the employee in
question "transfer[red] porters and handymen from one as-
signment and between buildings depending on the presence of
emergencies which would periodically arise and his judgment
as to their urgency." 318 N.L.R.B. at 1060. Although Katz
claims that its superintendents exercise independent judg-
ment by balancing "conflicting demands" in assigning work,
Brief for Petitioners at 30, there is no evidence in the record
to support its claim. As the Board has aptly explained in the
past, a superintendent's "point[ing] out the type and location
of work to be done" and transmitting "a tenant's request" are
"of no great[ ] consequence." Pierre Pellaton, 201 N.L.R.B.
at 412.

Third, despite Katz's assertions, the record contains no
evidence that superintendents set porters' schedules or ap-
prove vacation requests. Even if they did set the schedules,
Katz offered no evidence that the superintendents have "sub-
stantial autonomy" in creating the schedules or that they
exercise independent judgment in creating the schedules.
Micro Pac. Dev., Inc. v. NLRB, 178 F.3d 1325, 1331 (D.C.
Cir. 1999). In contrast, the petitioner in Micro Pacific
demonstrated that its housekeeping supervisors relied on a
number of specific factors "to make independent determina-
tions in scheduling and assigning the employees." Id.; see
also Beverly Enters.-Penn., 129 F.3d at 1270 (explaining that
licensed practical nurses "have no authority to schedule [cer-
tified nursing assistants] on any given day or week").

Fourth, Katz claims its superintendents recommend wage
increases. This claim is centered on a property manager's
testimony that a superintendent "can recommend" such an
increase. The manager testified, however, that no superin-
tendent ever had recommended to him that a porter receive a
raise and that he did not know of any superintendent ever

actually making a wage recommendation. There is simply no
specific evidence to support Katz's claim.

Finally, Katz argues that the Board's determination in this
case conflicts with an earlier ruling in which the Board
concluded that a superintendent for several New York City
apartment buildings was a supervisor. See Planned Bldg.
Servs., 318 N.L.R.B. at 1059-61. In Planned Building Ser-
vices, the Board ruled that a "senior superintendent" was a
supervisor because he exercised independent judgment in a
number of areas. See id. at 1060. Specifically, the Board
reviewed extensive evidence detailing the senior superinten-
dent's assigning work, disciplining employees, allowing em-
ployees to leave work early, and screening employment appli-
cations. See id.

In Planned Building Services, the Board did not claim to
establish a per se rule concerning superintendents in New
York City apartments. Rather, it concluded that "other
superintendents" in the same buildings were not supervisors.
Id. "[T]he issue of supervisory status is heavily fact-
dependent" and is not subject to a blanket determination
based on the class of the job in question. Brusco Tug &
Barge, No. 00-1183, slip op. at 4. Here, Katz's evidence did
not come close to proving that its superintendents possess the
same responsibility as the Planned Building Services senior
superintendent. Accordingly, the Board did not err in find-
ing that Katz's superintendents are not supervisors under the
NLRA.

C. Election Interference by Union Agents

The multi-unit election was held at a single, central loca-
tion: a classroom in a Lutheran church. According to Katz,
"[t]o reach the polling place, voters needed to open a gate at
the edge of the 41st Avenue sidewalk and walk about ten feet
to the side door of the Church building, open the door and
enter the building." Brief for Petitioners at 10-11. Two of
Katz's managers and several of its employees alleged that
during the election two Union agents were in a car parked
within twenty feet of the church's side door. According to

Katz's managers and employees, the Union agents motioned,
gestured, and honked at the employees as they passed the
car.

After the election, Katz filed an objection based on these
incidents. In its objection, Katz alleged that the Board Agent
had established a 25-yard no-electioneering zone outside the
entrance of the church. Katz argued that the Union agents'
presence and actions in the no-electioneering zone constituted
objectionable conduct that justified setting aside the election.
The Regional Director overruled Katz's objection, concluding
that the allegations--even if true--were insufficient to dem-
onstrate that the Union had "interfered with the exercise of
the employees' free choice." Nathan Katz Realty, LLC, No.
29-RC-9265, slip op. at 9 (Sept. 8, 1999) ("Supplemental
Decision"). The Board summarily affirmed the Director's
conclusion.

We will uphold Board decisions concerning election objec-
tions if they are the product of reasoned decisionmaking and
supported by substantial evidence. See Family Serv. Agency
S.F. v. NLRB, 163 F.3d 1369, 1377 (D.C. Cir. 1999). In
Board proceedings, the party seeking to overturn a represen-
tation election maintains the burden of establishing "that the
election was not fairly conducted." Id.

In previous cases, we have recognized the NLRB's Mil-
chem rule, which prohibits "prolonged conversations between
representatives of any party to the election and voters wait-
ing to cast ballots," regardless of the content of the remarks.
Milchem, Inc., 170 N.L.R.B. 362, 362 (1968). When this rule
is violated, "the Board will order a new election." Family
Serv. Agency, 163 F.3d at 1381.

"When an employer objects to electioneering not encom-
passed within the Milchem rule"--that is, when the alleged
objectionable conduct occurs at a time other than while voters
are waiting to cast ballots in the designated voting area--"the
Board will overturn the election only if the electioneering
substantially impaired the exercise of free choice." Overnite
Transp. Co. v. NLRB, 140 F.3d 259, 270 (D.C. Cir. 1998)
(internal quotation omitted). In conducting this inquiry, the

Board considers a range of factors, including the "nature and
extent of the electioneering, whether it happened within a
designated 'no electioneering' area, whether it was contrary
to the instructions of the Board's election agent, whether a
party to the election objected to it, and whether a party to the
election engaged in it." Id.

In this case, the Regional Director assumed that all of the
allegations contained in Katz's election objection were true.
Accordingly, Katz's allegations establish that (1) the Union
agents' conduct occurred in a no-electioneering zone; (2) their
presence and actions were contrary to the instructions of the
Board Agent; (3) Katz objected to the Union agents' conduct;
and (4) the people who engaged in the conduct were agents of
a party to the election. The Regional Director concluded that
"[a]lthough the [Union agents] may have been stationed
within the designated no-electioneering zone area for a por-
tion of the polling period, there is no suggestion that they
actually engaged in any electioneering" nor that "they en-
gaged in objectionable conduct sufficient to set aside the
election." Supplemental Decision at 9-10. The Director is
correct that Katz has not introduced evidence of direct elec-
tioneering by the Union agents; however, in previous cases,
the Board has stated that a party's mere presence may be
sufficient to justify setting aside an election. Katz cites two
such cases: Performance Measurements Co., 148 N.L.R.B.
1657 (1964), and Electric Hose & Rubber Co., 262 N.L.R.B.
186 (1982).

In Electric Hose, the Union lodged two election objections
directly relevant to the case now before us. First, it objected
to the presence of a company supervisor within ten or fifteen
feet of the entrance to the voting area. See Elec. Hose, 262
N.L.R.B. at 216. Second, the Union objected to the presence
of two supervisors who stood in areas where employees "had
to pass in order to vote." Id. The Administrative Law
Judge not only found that the first supervisor had engaged in
objectionable conduct, but she also concluded that the two
supervisors' "unexplained presence" alone was "coercive evi-
dence of such a nature as to have destroyed the laboratory
conditions necessary for the conduct of a free and fair elec-

tion." Id. According to the ALJ, the only plausible purpose
for the supervisors' presence, like the lone supervisor's pres-
ence near the entrance to the voting area, was "to convey to
[the voting] employees the impression that they were being
watched." Id. The Board adopted these conclusions. See
id. at 186.

The Regional Director attempted to distinguish Electric
Hose from this case by noting that here the Union agents
were stationed in a car outside the church, not "immediately
outside of the actual polling area." Supplemental Decision at
10 n.12. This distinction is manifestly inadequate. In Elec-
tric Hose, only one of the supervisors stood immediately
outside the polling area. The other two supervisors simply
stood in an area where employees "had to pass in order to
vote." Nothing in the Electric Hose decision indicates that
these two supervisors were anywhere near the actual polling
place. Katz alleges that, like the employees in Electric Hose,
the multi-site employees had to pass the Union agents on
their way to vote. In Katz's election objection, it specifically
alleged that "[a] voter approaching the Church entrance on
the sidewalk (the only means of access) would have to walk
within a few feet of the car." Similarly, several Katz manag-
ers stated in their affidavits that "[a]nyone in the car could
easily watch the side doorway to the Church and the sidewalk
along 41st Avenue leading to that entrance used for the
NLRB election." The Regional Director simply did not
attempt to explain why the presence of the Union agents
should be treated differently than the "unexplained presence"
of the two Electric Hose supervisors.

In Performance Measurements, the employer's president
"stood by the door to the election area so that it was
necessary for each employee who voted to pass within 2 feet
of him to gain access to the polls." 148 N.L.R.B. at 1659.
The Regional Director in that case found that there was no
evidence that the president engaged in any electioneering.
Nevertheless, the Board held that the president's "continued
presence" constituted "improper conduct" that "interfered
with employees' freedom of choice in the election." Id.

 In this case, the Regional Director distinguished the Union
agents' actions by stating that they "were stationed near the
outside entrance to the building, not the entrance to the
church basement classroom where the actual voting took
place." Supplemental Decision at 10 n.12. This is a hollow
distinction. After all, according to Katz's election objection,
which the Regional Director assumed to be true, the Board
Agent established a no-electioneering zone. No such zone
existed in Performance Measurements. The Director did not
explain why the Union agents' "continued presence" in a no-
electioneering zone by the entrance to the site of the election
(where employees had to pass) is different from standing
outside the room in which employees actually vote. Standing
in either place could "interfere with the employees' freedom
of choice"--particularly if the Board Agent enacted a no-
electioneering zone, presumably to prevent the parties from
interfering with that freedom.

The Regional Director also distinguished Performance
Measurements by stating that "there is no evidence to sug-
gest that employees were required to pass the [Union agents]
in order to enter the building." Id. As we explained above,
this statement is simply false. The Director purported to
assume that Katz's allegations were true, yet discounted--
without explanation--its allegation that employees were re-
quired to pass the Union agents.

Together, Electric Hose and Performance Measurements
seem to stand for the proposition that a party engages in
objectionable conduct sufficient to set aside an election if one
of its agents is continually present in a place where employ-
ees have to pass in order to vote. In light of these cases,
Katz's allegations appear to establish that the Union agents'
presence outside the church's entrance constitutes conduct of
such a nature that it substantially impaired the multi-site
employees' exercise of free choice--even if the agents did not
actually talk to any employee. The Board, however, came to
the opposite conclusion. It is "axiomatic that an agency
adjudication must either be consistent with prior adjudica-
tions or offer a reasoned basis for its departure from prece-
dent." ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1443 (D.C.

Cir. 1997) (internal citation omitted). The Board's decision in
this case did neither. Accordingly, we vacate the Board's
decision and remand the case for further proceedings.

D. Counting the Sima Ballots

According to the NLRB's statement of procedures, "[c]us-
tomarily, the Board agents ... count and tabulate the ballots
immediately after the closing of the polls. A complete tally of
the ballots is made available to the parties upon the conclu-
sion of the election." 29 C.F.R. s 101.19(a)(3). Likewise, the
Board's rules and regulations state that "[u]pon the conclu-
sion of the election the ballots will be counted and a tally of
ballots prepared and immediately made available to the par-
ties." 29 C.F.R. s 102.69(a). The NLRB's Case Handling
Manual for Representation Proceedings echoes these rules,
providing that "[t]he count should take place as soon after the
close of voting as possible." s 11340.1 (Sept. 1989 ed.).

In this case, following a request by the Union, the Regional
Director decided to refrain from counting the Sima election
ballots until after the completion of the multi-site election.
He explained his decision by stating that "[t]o count the
ballots in both units simultaneously guarantees that neither
party will enjoy an unfair advantage over the other based on
the result of the election in the Sima unit." The Director also
noted that waiting to count the Sima ballots "fosters laborato-
ry conditions for both elections."

After the elections, Katz filed an objection with the Region-
al Director, arguing that the decision to delay the Sima ballot
count unreasonably deviated from normal Board procedures.
The Director overruled the objection for two reasons. First,
he found that Katz had failed to submit evidence establishing
that the delayed count materially affected the results of the
elections. Supplemental Decision at 15. Second, he conclud-
ed that Katz did not proffer evidence to show that the
Director's decision was an abuse of discretion. Id. at 15-16.
The Board summarily affirmed this ruling. In its petition,
Katz renews its claim.

 The Board maintains "a wide degree of discretion in estab-
lishing the procedure and safeguards necessary to insure the
fair and free choice of bargaining representatives by employ-
ees." NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946).
Nevertheless, neither the Board nor the Regional Director
may abuse that discretion. Indeed, if they choose to depart
from usual election procedures, they must provide a reasoned
explanation. See Macmillian Publ'g Co. v. NLRB, 194 F.3d
165, 168 (D.C. Cir. 1999).

Here, the Regional Director's only reason for departing
from the normal procedure of counting the ballots and reveal-
ing the results "immediately" after the Sima election was that
it might give one of the parties an "unfair advantage."
Although the Board suggests that this casual conclusion is
consistent with earlier election decisions, see Brief for the
NLRB at 30 (citing Diamond Walnut Growers, Inc., 308
N.L.R.B. 933 (1992); Indep. Rice Mill, Inc., 111 N.L.R.B. 536
(1955)), it is not immediately apparent what is "unfair" about
announcing the results of one election before another election
commences--even when the two elections are closely related
or include employees of the same company. Neither the
Regional Director nor the Board offered any explanation. It
is as if the Board has taken a page from the Bard: "For
there is nothing either good or bad, but thinking makes it so."
William Shakespeare, Hamlet act 2, sc. 2.

In its brief and at oral argument, the Board primarily
stresses only one rationale for upholding the Regional Di-
rector's decision in this case: the Director has broad discre-
tion. This misses the point. The Board (and in turn the
Director) has received from Congress a delegation of authori-
ty to act in certain circumstances. See Kwik Care Ltd. v.
NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996). When it acts,
however, Congress requires it to act in a reasoned fashion,
not arbitrarily and capriciously. See BB&L, Inc. v. NLRB,
52 F.3d 366, 369 (D.C. Cir. 1995) (per curiam). If the Board
cannot assign a reason for what it has done, then its actions
are arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
That the Board has broad discretion is of no import. To state

the standard of review is not to offer a reason. If the Board
chooses to exercise its discretion, it must explain its action,
and its explanation must reflect reasoned decisionmaking.
See Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C.
Cir. 1992). Just as simply stating that a procedure is "unfair"
does not make it so, simply stating that the Director has
broad discretion does not establish that he has exercised it
properly.

Ultimately, to prevail, "a party attempting to set aside a
representation election must demonstrate that the conduct
complained of interfered with the employees' exercise of free
choice to such an extent that it materially affected the
election." C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882
(D.C. Cir. 1988). While the delay in tallying and releasing
the results of the Sima vote might not itself be grounds for
reversal, the Board's complete inability to explain how releas-
ing the results prior to the multi-site election could be
"unfair" makes a remand appropriate.

III. CONCLUSION

For the foregoing reasons, the petition for review is grant-
ed in part, and the cross-application for enforcement is de-
nied.