Trencor, Inc., a manufacturer of heavy construction equipment petitions for review of the National Labor Relations Board (the "Board") order directing Trencor to bargain with the United Steelworkers of America (the "Union"). Trencor contends because the Union promised "the biggest party in Texas" if it won the election and dared the company illegally to match union "guarantees" to workers, the election was tainted. The Board cross-petitions for enforcement of its order. Although the Board's treatment of the "guarantees" was not unreasonable, the Board failed to analyze the promise of a post-election party consistently with the Regional Director's facts and this court's precedent. We must therefore deny enforcement of the bargaining order and remand for further proceedings.

On August 3, 1995, Trencor's maintenance and production employees voted on whether the Union would serve as their exclusive collective-bargaining representative. Of 99 eligible voters, 70 voted for representation and 26 voted against.1 Trencor filed objections to the election, but, after an administrative investigation without a hearing, the NLRB Regional Director issued a report recommending that Trencor's objections be overruled and that the Union be certified. The Board adopted the Regional Director's recommendations and certified the Union as the exclusive collective bargaining agent for the employees.

After certification, Trencor refused to bargain with the Union. In November 1995, the Union filed an unfair labor practice charge and the Regional Director subsequently issued an unfair labor practice complaint. Trencor's answer admitted its refusal to bargain, but alleged that Union misconduct tainted the election and that the Union's certification was invalid. In its February 26, 1996 Decision and Order, the Board granted the General Counsel's motion for summary judgment, concluding that Trencor's objections were or should have been litigated in the representation proceeding and that no new evidence or special circumstances warranted reexamination of the representation proceeding. The order affirmatively requires Trencor to bargain with the Union, post appropriate notices, and comply with the Union's requests for information.

On appeal, Trencor concedes that it has refused to bargain, but challenges the Board decision to certify the Union. Trencor's challenge centers on three alleged improprieties committed by the Union on the eve of the election.

The Board's decision will be upheld by this court if it is reasonable and supported by substantial evidence in the record. NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th Cir.1994). The Board is given a "wide degree of discretion" in resolving election disputes. NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S. Ct. 324, 328, 91 L. Ed. 322 (1946); NLRB v. New Orleans Bus Travel, Inc., 883 F.2d 382, 384 (5th Cir.1989). An objecting party must demonstrate that any improprieties "interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969). See also NLRB v. Rolligon Corp., 702 F.2d 589, 592 (5th Cir.1983) ("the need for a ... new election is judged not against a standard of perfection, but against the likelihood that the outcome of the election might have been affected"). Since the Board resolved this issue at summary judgment without conducting a hearing, we must accept all allegations presented by Trencor's evidence and all reasonable inferences in a light most favorable to Trencor. McCarty Farms, 24 F.3d at 729.

A. Promise of the "Biggest Party in Texas"

Trencor complains that the Union offered conditional inducements to win employee support in the election. The day before the election, Union agent Bill Fears told employees that if the Union won the election, it would host "the biggest party in the history of Texas," and that the Union would buy "all the food and beer." Trencor primarily relies on NLRB v. Lou Taylor, Inc., 564 F.2d 1173 (5th Cir.1977), and Crestwood Manor, 234 N.L.R.B. 1097, 1978 WL 7316 (1978) to argue that such conditional inducements render the election invalid.

In Lou Taylor, this court enforced a Board order in which the announcement of a company's annual Christmas party in an employer's campaign speech the day before the election was found to be illegal. 564 F.2d at 1175. The company president promised that there would be a Christmas party and "that the employees would be paid for the time spent at the party and for the holiday." Id. An administrative law judge and the Board found, and this court affirmed, that the announcement improperly influenced the employees' choice despite the fact that the employer customarily gave its employees a Christmas party. Id. The election was invalidated notwithstanding the overwhelming rejection of the union. Lou Taylor, Inc., 226 N.L.R.B. 1024, 1030 n. 10, 1976 WL 7543 (union received only 38 of 223 votes cast).

In Crestwood Manor, the Board invalidated an election because of a union's promise to hold a one hundred dollar raffle for employees if the union won the election. 234 N.L.R.B. at 1097. The Board stated that:

The Employer argues that since the Petitioner's raffle was conditioned upon Petitioner's prevailing in the election, the Hearing Officer correctly concluded that it was a promise of benefit which requires setting aside the results of the election. We find merit in the Employer's contention.... If we were not to so find, we might well envision future elections in which employers and unions alike might be tempted to promise employees all sorts of inducements--raffles, prizes, vacation trips, or whatever--if their side won the election. Such an intrusion into the election process would be highly undesirable.

* * * * * *

Even if it could be said that the raffle was worth only $1.18 [one in eighty-five chance of winning one hundred dollars] to each employee, we could hardly countenance an offer of $1 to each employee for a union victory or loss.

Id.

The Board argues on appeal that a promise to hold a party is qualitatively different from a promise to give a monetary benefit. Relying on the Third Circuit's decision in NLRB v. L & J Equipment Co., 745 F.2d 224, 231 (3d Cir.1984),2 the Board asserts that offering a victory party is not necessarily "inimical to an atmosphere in which free choice can be made." Promising a party which only lasts one night, the Board alleges, would not "substantially influence employees in a decision having a major effect on their working lives." Id. The Board distinguishes Lou Taylor on the ground that the employees were to be paid for attending the Christmas party, while in this case the victory party was not coupled with a monetary benefit. Similarly, the Board distinguishes Crestwood Manor, noting that the raffle represented a direct financial benefit contingent on the union victory, a notion the Board finds more offensive than the promise of a party.

The Board's reasoning on appeal might be persuasive if it comported with the facts administratively found. But the Regional Director's recommendations, adopted in full by the Board, admitted that the Union's party invitation "may have served as a possible inducement to get employees to vote for the Union." The Regional Director then concluded that "it does not amount to impermissible coercion [in] the absence of a linkage between the party and either a pre-election pledge of Union support or an actual vote for the Union," citing Nu Skin International, Inc., 307 N.L.R.B. 223, 1992 WL 87489 (1992) (overruling employer's objection to union's passing out t-shirts before the election only to employees who signed a pro-union petition). On appeal, the Board neither cites Nu Skin nor relies on the Regional Director's rationale.3

Furthermore, Trencor contends that the monetary/non-monetary distinction drawn by the Board is not meaningful, since the benefits promised by the Union have some monetary value. Trencor also points to potential problems with this distinction, noting that substantial non-monetary benefits could potentially be more problematic than the $100 raffle in Crestwood Manor. The Board itself warned of the temptation to offer "all sorts of inducements" as a reason for finding the raffle to be illegal. 234 N.L.R.B. at 1097.

Ultimately, we are persuaded that the Board can not adopt the recommendation of the Regional Director, which notes that offering a party conditioned on the Union victory "may have served as a possible inducement to get employees to vote for the Union ..." but rests on flawed legal analysis, and then argue on appeal that offering a party could not reasonably have been seen as an inducement.4 See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S. Ct. 239, 246, 9 L. Ed. 2d 207 (1962) ("The courts may not accept appellate counsel's post hoc rationalizations for agency action; [Securities & Exchange Comm'n v.] Chenery [Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 1577, 91 L. Ed. 1995 (1947) ] requires that an agency's discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself ...").5 See also NLRB v. Brookshire Grocery Co., 919 F.2d 359, 367 n. 9 (5th Cir.1990) ("The Board's order can be sustained only on the grounds articulated therein.")

The Third Circuit decision in L & J Equipment makes the salient point that a one day or one night event might not sway an employee's decision on a matter as important as whether to support Union representation. 745 F.2d at 231. However, L & J Equipment could distinguish the Crestwood Manor raffle since the Third Circuit was presented with a Regional Director and Board determination, "after viewing all the evidence," that "the victory party was truly meant to celebrate any victory and lay the groundwork for a productive union-employee relationship." Id. at 231-32. In contrast, the only determination in this case is that the offer of a party "may have served as a possible inducement to get employees to vote for the Union...." There is no indication in the record that the offered "biggest party in the history of Texas" had anything to do with laying the "groundwork for a productive employee-union relationship" or, indeed, was anything more than an inducement to vote for the Union. Although on appeal the Board attempts to justify its decision by arguing that offers of post-election parties categorically do not influence employees, the record does not contain such a finding at any stage of the proceedings.6

Absent such a finding, this case is not meaningfully distinct from Lou Taylor or Crestwood Manor.7 The Board stated in Crestwood Manor that "[t]he conditioning of the receipt of benefits on favorable election results is impermissible conduct for parties engaged in the election." 234 N.L.R.B. at 1097. Even the potential benefit of $1.18 per employee was considered impermissible by the Board. Id. Our court has also agreed with the Board that the offer of a Christmas party that employees would receive vacation time to attend, even though the employer had traditionally given its employees a Christmas party, was an impermissible inducement when announced the day before the election. Lou Taylor, 564 F.2d at 1175. It is not unreasonable to infer that the Union's offer in this case, also made on the day before the election, represented as much or more economic benefit per employee than the $1.18 in Crestwood Manor or possibly even the unspecified amount in Lou Taylor. The Regional Director drew this inference. The Board cannot acknowledge the potential influence of a conditional inducement by adopting the Regional Director's decision and then expect this court to affirm because it is supposedly axiomatic that this type of inducement does not influence employees.

Accordingly, we cannot uphold the Board's decision to overrule Trencor's objection on this issue. Trencor has presented prima facie evidence that the Union conditioned "the receipt of benefits on favorable election results," which "is impermissible conduct for parties engaged in the election." Crestwood Manor, 234 N.L.R.B. at 1097. See also Lou Taylor, 564 F.2d at 1175. We must set aside the order of the Board and remand for an evidentiary hearing and analysis consistent with this court's precedents.

B. Union "Guarantees"

On August 2, 1995, the day before the election was to be held, the Union distributed flyers that listed numerous "guarantees" by the Union. The purported guarantees included several matters related to Union membership, such as Union dues payments, the right of employees to resign from the Union, the right of employees to file unfair labor practice charges against the Union, and a pledge to seek employee approval of any negotiated collective bargaining agreement. The Union also "guaranteed" that upon its victory, employees' wages, benefits and working benefits would not suffer, and that the Union had negotiated improved terms for employees in every prior first contract negotiation. The Union representative, Bill Fears, signed his name under each guarantee, referring to the document as a signed contract between the Union and employees.

Trencor alleges that by making the guarantees, the Union offered employees "a financial benefit to which they would otherwise not be entitled" in the critical period prior to the election, thereby violating Board rules governing elections. See Mailing Services, Inc., 293 N.L.R.B. 565, 1989 WL 223947 (1989). We disagree.

The Board decision to overrule this objection was reasonable. Unions are permitted to promise the extension of existing membership benefits to employees. Dart Container of California, 277 N.L.R.B. 1369, 1985 WL 46169 (1985). Unlike Mailing Services, where free health screening, an existing Union benefit, was actually given to employees before the election, this is merely an unremarkable promise to extend Union benefits to employees after the Union's election. 293 N.L.R.B. 565 (1989). Unions may also promise to obtain better terms in the future. NLRB v. Golden Age Beverage, 415 F.2d 26, 30-31 (5th Cir.1969) (union's promised improvements "fell within the category of customary and legally unobjectionable preelection propaganda"). Trencor's objection to the Union "guarantees" is without merit.

Trencor's better argument relates to the Union's challenge to Trencor executives to make guarantees similar to those offered by the Union.8 Companies are not allowed to make such promises in the period immediately preceding an election,9 and Trencor argues this challenge put the company in the untenable position of either making illegal promises or appearing to back down from the Union.

Trencor responded to the challenge by printing its own leaflet disputing the Union's guarantees and pointing out that it was prohibited by law from making any type of similar promises. Trencor alleged that Union agent Bill Fears wrote handwritten responses on the face of Trencor's leaflets. Trencor produced one such altered leaflet on which someone had handwritten in the margins10 that: "THE COMPANY CAN GIVE IT'S [sic] EMPLOYEES A CONTRACT WITHOUT A UNION BEING INVOLVED. IF IT CARED ABOUT ITS WORKERS & WANTED THEM TREATED FAIRLY." (emphasis in original). Trencor alleges that this alteration of its leaflet occurred on the morning of the election, denying Trencor the opportunity to respond to this misrepresentation and putting Trencor in a "false light" because it followed the law. Thus, Trencor argues, the "laboratory conditions" necessary for the employees' free choice were destroyed. See Home Town Foods v. NLRB, 416 F.2d 392, 396 (5th Cir.1969) (" 'laboratory conditions test' represents an ideal atmosphere in which a free choice may be made by employees, protected from interference by employer, union, Board agent, or other parties"; key is "whether the employees were permitted to register a free choice").

The Board counters that Trencor's responsive leaflet apprised the employees of its views on the Union guarantees and the legal restrictions keeping the company from making similar promises, thereby rebutting the notion that it was backing down from the Union challenge. The Board also argues that there is no evidence that the handwritten message on Trencor's leaflet came from a Union agent or was widely distributed. Ultimately, the Board relies on Midland Nat'l Life Ins. Co., 263 N.L.R.B. 127, 131-33, 1982 WL 23832 (1982), in which the Board decided that it would "no longer probe into the truth or falsity of the parties' campaign statements and [would not] set elections aside on the basis of misleading campaign statements." The Board contends that because the thrust of Trencor's complaint about the Union challenge is that it was misleading, the Midland doctrine applies and the Board will not invalidate the election on this basis.

Accepting Trencor's allegation that the Union was responsible for the election day message,11 we must decide if the Midland doctrine bars a challenge to the election. This circuit has yet to approve fully the Midland doctrine.12 Only one Fifth Circuit case cites Midland. See NLRB v. Rolligon Corp., 702 F.2d 589, 597 (5th Cir.1983). In Rolligon, this court overruled an election challenge where the union misused Board subpoenas two months before the election. Id. at 596-97. Although the court condemned the union's actions, the court agreed "with the Board that setting aside an election in which sixty-three percent of the workers have chosen the union as their representative is not the proper remedy." Id. at 597. The court voiced support for the rationale of Midland, noting that employees are " 'mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.' " NLRB v. Rolligon Corp., 702 F.2d 589, 597 (5th Cir.1983) (quoting Midland, 263 N.L.R.B. at 132 (quoting Shopping Kart Food Market, 228 N.L.R.B. 1311, 1977 WL 8527 (1977))). However, this court ultimately based its decision on the impact the misrepresentation would have on the election,13 concluding that there was "substantial evidence in the record to support the Board's conclusion that the union's misconduct was not likely to have created the impression that the Board favored one party over another." Id. Important to the court's conclusion was the fact that the company had two months to respond to the union misconduct but failed to do so. Id. at 596.

Trencor urges that Midland is inapplicable because it is not alleging a simple misrepresentation, but rather is objecting to the Union's challenging Trencor to make illegal promises on the eve of the election. Trencor contends the illegal challenge falls outside the category of misrepresentation and within the category of "campaign conduct, such as threats, promises, or the like, which interfere with employee free choice" and which the Board is still pledged to protect against under Midland. 263 N.L.R.B. at 131-33. We disagree.

The Board's decision to uphold the election on this basis is supported by substantial evidence in the record. Although it is unnecessary to decide the full scope of this court's support of the Midland doctrine, we rely on the overarching principle, recognized in Rolligon, that employees must generally be trusted to sort through election propaganda and posturing in deciding how to vote. Contrary to Trencor's protestations, the gravamen of its complaint is that the Union challenge was misleading, i.e., it put Trencor in a "false light." Trencor's efforts to place the Union conduct outside the "misrepresentation" framework fail because, irrespective of the outer bound of the Midland doctrine, Trencor has not demonstrated that the Union conduct was so deceptive that it inhibited employee free choice. Accordingly, the Board's application of the Midland doctrine to this case was within the wide discretion granted to the Board by Congress. The Union's attempt to challenge Trencor to do something that the Union surely knew the company could not do, on the eve of the election, is not an honest tactic and certainly not one that should be condoned.14 However, in this case, Trencor was able to respond to the Union's challenge with its own leaflets outlining the company's position. The fact that the Union placed handwritten messages on some or all of the company's leaflets did not prevent employees from reading the claims of both sides and making their own determinations.15 We cannot conclude that "the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and ... their right to a free and fair choice will be affected." See Van Dorn Plastic, 736 F.2d at 348.

For the foregoing reasons, DENY the Board's cross-petition for enforcement of its bargaining order, and REMAND for further proceedings as described above.

ENFORCEMENT OF BOARD ORDER DENIED; CASE REMANDED.

REYNALDO G. GARZA, Circuit Judge, dissenting.

While I concur with the majority's treatment of the union's guarantees and its alleged "Catch-22" campaign tactics, I cannot concur with its treatment of the alleged promise of a party and therefore respectfully dissent from its refusal to grant the Board's petition for enforcement. My disagreement extends to several points, as I explain below.

In his report on Trencor's objections to the election, the Regional Director for Region 16 stated as follows with respect to the issue of the party:

In support of this objection the Employer provided an employee witness who testified that a Union representative told an employee, a Union supporter, that when the Union won the election they were going to have the biggest party in the history of Texas and that he would buy all the food and beer for them. The Union employee supporter then, on or about August 2, 1995, told the Employer witness about the party.

Assuming the Union representative made the above statements at some point prior to the election about a prospective party and even assuming the employee who told of this party was an agent of the Union, such would not be a basis for setting the election aside.

While the party referred to may have served as a possible inducement to get employees to vote for the Union, it does not amount to an impermissible coercion of the absence [sic ] of a linkage between the party and either a pre-election pledge of Union support or an actual vote for the Union. Accordingly, the alleged prospective party cannot be a basis for setting the election aside. See Nu Skin International, Inc., 307 NLRB No. 46. Accordingly, it is recommended this objection be overruled.

(emphasis added). The Board adopted the Regional Director's findings and recommendations and overruled Trencor's objections to the election.

The majority states that the Board's legal analysis is flawed, and estops the Board from supplementing its legal citation with additional cases to demonstrate the consistency with which it has treated this issue. The majority also relies upon language in the Board's decision that the party "may have served as a possible inducement." The majority states: "Ultimately, we are persuaded that the Board cannot adopt the recommendation of the Regional Director, which notes that offering a party conditioned on a Union victory 'may have served as a possible inducement' but rests on a flawed legal analysis, and then argue on appeal that offering a party could not reasonably have been seen as an inducement." Maj. op. at 272. The majority goes on to reject the Board's legal argument by stating that "[t]he Board's reasoning on appeal might be more persuasive if it comported with the facts administratively found." Maj. op. at 271.

The majority errs in its treatment of the Board's opinion. First, the language the majority alludes to is not a finding of fact on this issue. Even if it was, it is of no legal import because the Board determined that even if true, Trencor's objection failed as a matter of policy because the alleged inducement--offering a victory party--was not an improper inducement, i.e. one that would serve as a ground for setting aside the election. Second, the majority finds error in the Board's adoption of the report when legal authority cited within it is not exactly on point. Essentially, the majority holds that the Board is estopped from not relying specifically on the Nu Skin case and the Board's analysis therein. What the majority overlooks is that the Board's opinion in Nu Skin did nothing more than discuss the topic of unlawful inducements in light of guidance provided by the Supreme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S. Ct. 495, 38 L. Ed. 2d 495 (1973), the Court's only decision in this area. Moreover, the Board's task in an election challenge is not a quest for on-point precedent, but to make an ad hoc determination based on the facts presented or, as here, alleged. See Lach Simkins Dental Labs., 186 N.L.R.B. 671, 672 (1972) (Board will approach the question of whether "laboratory conditions" have been upset on a case-by-case basis).

The Board's opinion states that the promise was minimal and could not have been expected to influence the election. In this court, the Board argues that the promise was minimal and could not be expected to influence the election. The Board's appellate brief certainly expresses its position much better than does its opinion in this case, but there is no requirement that the two documents be identical. In its petition for review, the Board provides a number of cases setting forth the Board's long-held position that an employer or union's simple promise to have a party is not improper, to bolster its argument here that it properly determined the promise of the party was an inducement of de minimis proportions. This is not a case where a new legal argument is being introduced into the mix. Rather, the NLRB General Counsel has done additional research for this court and supplied the on-point legal citations.

The majority is quite correct that agencies are not permitted to justify their actions in a judicial review proceeding on different grounds than those they relied upon at the time of that action. For us to sanction this sort of post hoc rationalization would allow agencies to engage in unprincipled decision making and would make us their accomplice. But this is not the type of situation the Court had in mind when it decided Chenery and Burlington Truck Lines. The Court has stated that "[w]hile we may not supply a reasoned basis for the agency's action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-86, 95 S. Ct. 438, 442, 42 L. Ed. 2d 447 (1974); see also State of Texas v. United States, 756 F.2d 419, 427 (5th Cir.), cert. denied, 474 U.S. 843, 106 S. Ct. 129, 88 L. Ed. 2d 106 (1985). Because I believe "the agency's path may be reasonably discerned," I would reject Trencor's argument that the Board's appellate argument does not match the reasons guiding its opinion.

In addition to its Chenery argument, the majority goes further and states that the Board's decision is foreclosed by the decision of our court in NLRB v. Lou Taylor, Inc., 564 F.2d 1173 (5th Cir.1977). In that case, the Board sought enforcement of an order finding that an employer violated section 8(a)(1) of the Act and requiring a new election where an employer told its employees before the election that it would pay them to attend its Christmas party and would also pay them for the holiday. The Board ordered the new election "despite the Company's contention that Christmas parties were not new benefits and there were valid reasons for the absence of Christmas parties in the preceding years." Id. at 1175. If the employer's argument that the party itself was not improper was of no concern to the Board or to us in our review of its decision, it is abundantly clear that our decision rested on the fact that a monetary benefit was conferred to the employees. The Board has consistently held that parties may not buy votes. See, e.g., NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S. Ct. 457, 11 L. Ed. 2d 435 (1964) (employer's conferral of benefit violated section 8(a)(1)); Crestwood Manor, 234 N.L.R.B. 1097 (1978) ("laboratory conditions" case holding union's promise to hold $100 raffle to be an improper inducement). The Board has also consistently held that it can be an unfair labor practice for an employer to withhold an ordinarily granted benefit, such as hosting a Christmas party, during the pendency of a campaign. An employer's assertion that the benefit conferred is one it has always given operates as an affirmative defense to an 8(a)(1) charge. That the Board still found a violation makes it plain that the objectionable activity in that case was the promise of a paid holiday and paid attendance.1

The majority does not find it sufficient, however, to rest on the arguments discussed above, and proceeds to reject the Board's position on this issue. It essentially determines that the Board's Crestwood Manor decision overruled, by implication, all previous Board decisions in which an inducement of $1.18 or more was found to be unobjectionable. Maj. op. at 270-73 & nn. 2-3. As a consequence of this, the majority must be arguing (although it does not state that it is) that this has caused the Board to be acting inconsistent with its own precedent, a basis for us to approach its present position with skepticism. See I.N.S. v. Cardoza Fonseca, 480 U.S. 421, 446 n. 30, 107 S. Ct. 1207, 1221 n. 30, 94 L. Ed. 2d 434 (1987) ("An additional reason for rejecting the INS's request for heightened deference to its position is the inconsistency of the positions the BIA has taken through the years."); Shaw's Supermarkets v. NLRB, 884 F.2d 34 (1st Cir.1989) (Board must explain departure from precedent). Even were this argument valid, the Board must have in turn overruled the Crestwood Manor decision and abandoned this "$1.18 rule" (again by implication), because it held fourteen years later in Nu Skin that the promise of t-shirts (costing from $4 to $5) was unobjectionable.2

The Supreme Court has long emphasized that, because the Board is the expert body in the field of labor relations, we are to give "considerable deference" to the Board's position on policy determinations and are not to disturb it "as long as it is rational and consistent with the Act." NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 787, 110 S. Ct. 1542, 1549, 108 L. Ed. 2d 801 (1990). Stated another way, as an administrative agency, the NLRB is entitled to the deference announced by the Court in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984). See ABF Freight Sys. v. NLRB, 510 U.S. 317, 114 S. Ct. 835, 127 L. Ed. 2d 152 (1994) ("When Congress expressly delegates to an administrative agency the authority to make specific policy determinations, courts must give the agency's decision controlling weight unless it is 'arbitrary, capricious, or manifestly contrary to the statute.' "); Stardyne, Inc. v. NLRB, 41 F.3d 141, 147-48 (3d Cir.1994) (Board's case-by-case adjudications to fill gaps in Act are analyzed under Chevron ). We also look to the consistency with which the Board has acted as a factor in deciding whether the agency's action should stand. Cardoza Fonseca, 480 U.S. at 446, 107 S.Ct. at 1221; NLRB v. New Jersey Bell Tel., 936 F.2d 144, 147 (3d Cir.1991).

Nowhere, perhaps, is this deference greater than when the issue is whether the "laboratory conditions" of the election are alleged to have been upset. Section 9 of the Act gives the Board "the broad duty of providing election procedures and safeguards for elections and a wide discretion in determining when conduct did or did not jeopardize the untrammeled expression of employee free choice." NLRB v. Sanitary Laundry, 441 F.2d 1368, 1369 (10th Cir.1971). The issue before us today, whether the promise of a party is the type of benefit that could reasonably have tended to influence the employees' decision, represents "precisely the type of minor, detailed, interstitial question of labor election policy that Congress asked the Labor Board, not the courts, to decide." NLRB v. Labor Services, Inc., 721 F.2d 13, 18 (1st Cir.1983) (Breyer, J., dissenting).

In rejecting the Board's determination here, the majority places this court at odds with the positions taken by our sister courts. The Third Circuit considered this precise issue in NLRB v. L & J Equipment Co., 745 F.2d 224 (1984), and, despite the majority's attempt to distinguish it, found the policy to represent a reasonable exercise of its powers. The majority states that the crucial difference between that case and the one before us today is that the Board there made a fact finding that the purpose of the election was to celebrate victory and "lay the groundwork for a productive employee-union relationship." In so distinguishing it, however, the majority by-passes precedent of our court that specifically rejects the "intent to influence" test in favor of the "tendency to influence" test that the Board argues before us today. See NLRB v. McCarty Farms, 24 F.3d 725, 731 n. 5 (5th Cir.1994) (discussing the standard). The Third Circuit, incidentally uses the same standard we use, NLRB v. Clearfield Cheese Co., 322 F.2d 89, 93-94 (3d Cir.1963), making it rather difficult to distinguish its opinion there on the basis that it relied upon the "purpose" as being a satisfactory one. Because the Third Circuit's decision is, therefore, indistinguishable from the situation here, the majority's opinion creates a split with our colleagues on that court. The majority's conclusion also conflicts with favorable commentary on the Board's position on this issue from the First Circuit. Labor Services, 721 F.2d at 17 (Board "properly held" in Movsovitz that promise to buy beer and wine after election "could not reasonably be expected to have influenced the employees' free choice.")

Reviewed under the proper standard, the Board's policy must stand. Its position has been uniform for decades, as the majority opinion clearly demonstrates. Maj. op. at 270-72 n. 2. Because Congress did not mandate an outcome here but expressly left it to the Board to decide, it cannot be said that its determination is "manifestly contrary to the statute." Its determination is neither arbitrary nor capricious. We have previously recognized "that clinical asepsis is an unattainable goal in the real world of union organizational efforts," and accordingly are "conscious of the 'realities of industrial life' in our application of the controlling standard.' " McCarty Farms, 24 F.3d at 728 n. 2 (citations omitted). The Board has distinguished money payments from parties on the ground that the former closely resembles a bribe, while it is highly unlikely employees will vote against their better interests merely on the promise of a party. As the majority recognizes in its discussion of the Board's Midland decision, employees must be viewed as mature individuals. Maj. op. at 275-76. As such, the union organizer's Texas-sized boasts about the party aside, the Board's determination that the promise of the party was not one that destroyed the laboratory conditions of the election is entirely reasonable and should be upheld.

In sum, I believe that the Board's opinion reflects the same argument it advances on judicial review, that its position is not foreclosed by any precedent of our court, and that the Board's position is not "arbitrary, capricious, or manifestly contrary" to the Act. The employees' 70-26 vote in favor of union representation should be upheld. Accordingly, I would deny Trencor's petition for review and would grant the Board's cross-petition for enforcement of its order.