*The Honorable Henry R. Wilhoit, Jr., Chief United States DistrictJudge for the Eastern District of Kentucky, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0170P (6th Cir.)File Name: 00a0170p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________NATIONALLABORRELATIONSBOARD,Petitioner/Cross-Respondent,v.ST.FRANCISHEALTHCARECENTRE,Respondent/Cross-Petitioner.;>1Nos. 98-6297/6401On Application for Enforcement and Cross-Petition forReview of an Order of the National Labor Relations Board.Nos. 8-RC-15410; 8-CA-29739.Argued: October 26, 1999Decided and Filed: May 19, 2000Before: RYAN and COLE, Circuit Judges; WILHOIT,District Judge.*2NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401_________________COUNSELARGUED:G. Roger King, JONES, DAY, REAVIS &POGUE, Columbus, Ohio, for Respondent. Robert J.Englehart, NATIONAL LABOR RELATIONS BOARD,APPELLATE COURT BRANCH, Washington, D.C., forPetitioner.ON BRIEF:G. Roger King, Brian G. Selden,JONES, DAY, REAVIS & POGUE, Columbus, Ohio, forRespondent. Robert J. Englehart, Frederick C. Havard, JohnD. Burgoyne, NATIONAL LABOR RELATIONS BOARD,APPELLATE COURT BRANCH, Washington, D.C., forPetitioner.RYAN, J., delivered the opinion of the court, in whichWILHOIT, D. J., joined. COLE, J. (pp. 35-39), delivered aseparate concurring opinion._________________OPINION_________________RYAN, Circuit Judge. These consolidated appeals arise outof the efforts of the Health Care and Social Services Union,SEIU, AFL-CIO (Union), to become the certified bargainingrepresentative for certain employees of St. Francis HealthcareCentre. Following two elections, the National LaborRelations Board certified the Union as the bargainingrepresentative. The Board now seeks enforcement of thebargaining order it issued following the second election,which the Union won. St. Francis cross-petitions for reviewof the Board’s decision to set aside the first election, whichthe Union lost, as well as the Board’s refusal to review St.Francis’s objections to the second election.We will deny enforcement of the Board’s bargaining orderand remand the case to the Board to conduct an evidentiaryhearing on St. Francis’s objection to the second election.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre39possible that the Board’s determination that the Biddle letterdoes not constitute a violation of the Act is correct.See, e.g.,Dayton Hudson, 79 F.3d 546 (upholding the Board’s decisionafter an earlier remand for an evidentiary hearing inDaytonHudson Department Store Co. v. NLRB, 987 F.2d 359 (6thCir. 1993));Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d302 (6th Cir. 1989) (upholding, on second review, the sameresult after a remand and evidentiary hearing by the Board);Van Leer Containers, Inc. v. NLRB, 943 F.2d 786 (7th Cir.1991) (same);NLRB v. Monark Boat Co., 800 F.2d 191 (8thCir. 1986) (same);Bauer Welding & Metal Fabricators, Inc.v. NLRB, 758 F.2d 308 (8th Cir. 1985) (same).In sum, I respectfully concur in the court’s decision touphold the first election and to remand the second election foran evidentiary hearing on St. Francis’s objection to the Biddleletter.38NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401Francis has established its success on four of the factorsarticulated byMitchellace. For example, although themajority states that St. Francis is favored on the question oftiming, the timing of the letter and some of the othercircumstances of this case are not unlike those inDaytonHudson Department Store Co. v. NLRB, 79 F.3d 546, 551(6th Cir. 1996), in which the court upheld the Board’sdetermination. InDayton Hudson, a letter with substantialmisrepresentations was mailed to employees three days beforethe election, the writers of the letter were known to be alliedwith the union, but, unlike here, the union won by asignificant margin. See id. at 548, 551. In this case, inaddition, St. Francis became aware of the letter one or twodays before the election, and although it did not respond, itmay have had a sufficient opportunity to do so.SeeMitchellace, 90 F.3d at 1156 (stating that the employer, wholearned of a flyer distributed the day before the election, wasable to effectively respond). As to the third factor, althoughthe centrality of the issues in the alleged misrepresentation tothe representation campaign may be considered, this factorprimarily assesses the extent and “artfulness” of the allegeddeception.Cf. Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127,133 (1982) (prohibiting the use of forged documents);VanDorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6thCir. 1984). The extent of the misrepresentation in this case isdisputed; St. Francis alleges it was significant. Fourth, St.Francis raises a material issue of fact on the source of theletter and whether employees could determine the source.Fifth, whether employees were affected by the allegedmisrepresentation is unclear; St. Francis has provided scantevidence that employees were affected by the letter. Finally,the election’s closeness militates toward holding anevidentiary hearing.Mindful that no set of factors governs whether or not anevidentiary hearing is necessary, the material issues raised bySt. Francis direct us to remand for an evidentiary hearing atwhich the Board can resolve these factual questions anddetermine the appropriate result. After this hearing, it isNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre3I. Standard of ReviewA party who seeks to overturn the results of a representationelection bears the burden of demonstrating that the electionwas conducted unfairly. To meet this burden, “the objectingparty must demonstrate that ‘unlawful conduct occurredwhich interfered with employees’ exercise of free choice tosuch an extent that it materially affected the result of theelection.’”Contech Div., SPX Corp. v. NLRB, 164 F.3d 297,305 (6th Cir. 1998) (quotingNLRB v. Shrader’s, Inc., 928F.2d 194, 196 (6th Cir. 1991)),cert. denied, 120 S. Ct. 64(1999). While the Board strives to achieve “laboratoryconditions” during representation elections, we haverecognized that this can be an elusive goal, and so “electionsare not automatically voided whenever they fall short ofperfection.”NLRB v. Duriron Co., 978 F.2d 254, 256 (6thCir. 1992).We review for abuse of discretion the Board’sdetermination whether a representation election has allowedemployees to exercise free choice.Colquest Energy, Inc. v.NLRB, 965 F.2d 116, 119 (6th Cir. 1992). The Board’sfindings of fact are conclusive if supported by substantialevidence. Evidence is substantial when it is “‘adequate, in areasonable mind, to uphold the [Board’s] decision.’”DTRIndus., Inc. v. NLRB, 39 F.3d 106, 110 (6th Cir. 1994)(quotingTurnbull Cone Baking Co. v. NLRB, 778 F.2d 292,295 (6th Cir. 1985)). We must consider the record as awhole, including evidence that runs contrary to the Board’sfindings.Id.Deference to the Board’s factual findings isparticularly appropriate where conflicting testimony requiresthe Board to make credibility determinations.Tony ScottTrucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987);see alsoV&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6thCir. 1999). The Board’s application of law to facts is alsoreviewed under the substantial evidence standard, and “‘theBoard’s reasonable inferences may not be displaced on revieweven though the court might justifiably have reached a4NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401different conclusion had the matter been before itdenovo.’”V&S ProGalv, 168 F.3d at 275 (citation omitted).II. The First ElectionA.St. Francis is an Ohio not-for-profit corporation operatinga rehabilitation hospital and skilled nursing facility in GreenSprings, Ohio. In July 1996, District 1199 of the Union fileda petition with the Board seeking to represent approximately150 full- and part-time service and maintenance employees atSt. Francis’s facility. An election was held on October 3 and4, 1996; 71 employees voted against the Union, 60 voted forthe Union, and there were 10 challenged ballots.The Union filed objections to the election with the NLRBRegional Director. Following a hearing, a hearing officerrecommended that the election be set aside and a new electionbe conducted, based upon three of the Union’s objections.Specifically, the hearing officer found that St. Francis had:(1) threatened that unionization would prevent St. Francisfrom affiliating with a partner, forcing the facility to closewithin 18 months; (2) threatened to reduce or eliminatecurrent employee benefits during the bargaining process; and(3) prohibited employees from wearing pro-Union insignia ontheir uniforms and enforced its no-solicitation policy in adiscriminatory manner. St. Francis appealed this decision tothe Board, which adopted the hearing officer’s findings andrecommendations and ordered a new election.We proceed to address the Board’s three grounds forordering a second election.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre37II.I also write separately on our decision to remand to theBoard for an evidentiary hearing on St. Francis’s objection tothe Biddle letter.Although St. Francis bears the burden in its quest tooverturn the election,see NLRB v. Gormac Custom Mfg., Inc.,190 F.3d 742, 746 (6th Cir. 1999), we must take the evidencepresented by St. Francis in the light most favorable to thecompany,see NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772(9th Cir. 1993);Prestolite Wire Div. v. NLRB, 592 F.2d 302,306-307 (6th Cir. 1979). Here, St. Francis makes a showingof “substantial and material factual issues” which, if proven,would warrant setting aside the election.See29 C.F.R.102.69(d) (stating that a “hearing shall be conducted withrespect to those objections or challenges which the regionaldirector concludes raise substantial and material factualissues”);NLRB v. Tennessee Packers, Frosty Morn Div., 379F.2d 172, 177-78 (6th Cir. 1967).As stated by the majority, in addition to the timing of thestatement, “this court has considered other factors, includingwhether the employer was aware of the communication andhad an opportunity to respond, the extent of themisrepresentation, whether the source of themisrepresentation was identified, and whether there isevidence that employees actually were affected by themisrepresentation.”Mitchellace v. NLRB, 90 F.3d 1150,1155 (6th Cir. 1996). We also note the closeness of theelection.See Gormac Custom Mfg., 190 F.3d at 747;see alsoValley Bakery, 1 F.3d at 773 (“The need for a hearing isparticularly great when the election is close.”);NLRB v.Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir. 1978).The majority finds that St. Francis raises material issues offact on at least four of these five points. While I agree that St.Francis raises sufficient issues of material fact to supportholding an evidentiary hearing, I do not believe that St.36NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401testified that Storer stated, for example, that they would “haveto start from zero and work up to regain the benefits” theyhad. These statements do not merely indicate that, as themajority states, the employees “would need to negotiate toachieve their current benefits once bargaining began,” but thatSt. Francis would begin from zero if the workers unionized.See NLRB v. Construction & Gen. Laborers’ Union, LocalNo. 534, 778 F.2d 284, 291 (6th Cir. 1985) (noting that “thespeaker’s intent must be inferred from the circumstances asthey appear to the reasonable person,” and that “assertionsthat the employer will ‘bargain from scratch’ are unfair laborpractices”). Second, the unsigned pro-management leaflet,which stated that the company would begin bargaining at “0”,provides additional evidence supporting the Board’sconclusion that the company violated Section 8(a)(1) of theAct. Further, St. Francis’s oral and written statements weremade in the context of a campaign in which other violationsof the Act occurred, including the hallmark violation ofthreatened plant closure.We may not reverse the Board’s reasonable inferences“even though [we] might justifiably have reached a differentconclusion had the matter been before [us] de novo.”TonyScott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir.1987). In light of the above evidence presented to the ALJ, Ibelieve that substantial evidence exists to support the Board’sdetermination. This evidence is such that “‘a reasonable mindmight accept as adequate to support’” the Board’s conclusion.Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6thCir. 1998),cert. denied, 120 S.Ct. 64 (1999) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229(1938)).Because we find independent violations of the Act, themajority’s determination of this issue does not requireoverturning the Board’s decision on the first election.Accordingly, I concur in the majority’s resolution of thechallenge to the first election.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre5B.St. Francis’s Statements Concerning Facility’s LongTerm Viability1.St. Francis’s management decided in 1995 to seek potentialpartners in the health care industry in order to compete moreeffectively. The company conducted monthly “open forum”meetings at which senior management shared, with allemployees who chose to attend, strategic information aboutthe company and its financial situation and explored thepossibility of affiliation.At a September 18, 1996, openforum conducted during the Union’s organizing campaign, anemployee asked St. Francis’s CEO, Gregory Storer, whethera vote for Union representation would affect the ability to finda partner. Storer testified before the hearing officer that heresponded by explaining that the most likely partner did nothave any organized labor contracts and had expressed“concerns” about labor organization at St. Francis. Accordingto Storer, he told employees that the potential partner “wantedto know how it was going and the progress and when the votewas going to take place.” Another employee attending theopen forum then asked Storer how long St. Francis couldsurvive without a partner. According to Storer, he respondedthat the organization’s current cash reserves would probablyallow it to operate for about 18 months.Employees recalled Storer’s statements during theSeptember 18 open forum somewhat differently, testifying asfollows:1. According to Colleen Kimmet, a nurse, Storer stated thatSt. Francis needed to affiliate with another institution,and that “no hospital or institution would want to affiliatewith St. Francis if it was unionized, and withoutaffiliation St. Francis would close in a year and a half.”6NLRB v. St. FrancisHealthcare CentreNos. 98-6297/64012. Karen Slagle, a housekeeper, testified that “[Storer] saidthat if the union got in that other hospitals would notwant to affiliate with us and that financially our doorswould close in a year and a half.” Slagle then respondedto a question from the Union representative:Q:. . . And so [Storer] told people that hospitalswouldn’t take you if you voted for the union, is thatwhat you–A:It wouldn’t be attractive to other hospitalgroups.3. Melanie Ott, a nurse’s assistant, recalled that Storerstated that “if the union got in that nobody would beaffiliated with us because they wouldn’t work with aunionized facility. And if it got through that the doorswould close within a year, year and a half, because wecouldn’t stand alone.”4. According to Naomi Rose, a patient care technician,Storer stated “that the alliance would not join with us ifwe was union, and that if we became union St. Franciswould have to close in a year and a half, because nobodywould affiliate with us.” On cross-examination, thefollowing colloquy took place:Q:. . . [Y]ou understood that his remarks werebased upon the inability of the hospital to affiliate inthe event the union were voted in?A:Yes, sir.Q:. . . And he expressed his belief that the facilitywould not be an attractive candidate for affiliation ifthe union were voted in?A:Yes, sir.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre35_________________CONCURRENCE_________________R. GUY COLE, JR., Circuit Judge, concurring. Irespectfully write separately to address two points.I.First, although I agree with the majority’s conclusion thatthe Board’s decision to set aside the first election wassupported by substantial evidence, I disagree with themajority’s rejection, in Part II.C., of the Board’sdetermination that St. Francis threatened to bargain “fromscratch,” thereby violating Section 8(a)(1) of the Act.I agree with the majority that the record contains evidenceto support St. Francis’s position that its statements wereintended to inform employees about the bargainingconsequences of union representation. For example, the twomemorandum issued by St. Francis present a relativelybalanced and permissible presentation of the impact ofunionization.However, the record also contains evidence that St. Francismade impermissible threats regarding bargaining with theunion.It is well established that “bargaining from groundzero” or “bargaining from scratch” statements byemployer representatives violate Section 8(a)(1) of theAct if, in context, they reasonably could be understoodby employees as a threat of loss of existing benefits andleave employees with the impression that what they mayultimately receive depends upon what the union caninduce the employer to restore.Taylor-Dunn Mfg. Co., 252 N.L.R.B. 799, 800 (1980). TheALJ heard testimony from employees at the open forum who34NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401enforcement of its bargaining order. WeREMANDto theBoard to conduct aVan Dornhearing on St. Francis’s Biddleletter objection to the second election.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre7Q:And for that reason, without affiliation, . . . thefacility would close?A:Yes, sir.Pro-management literature also addressed affiliation. Forexample, Sue Fretz, an RN manager who supervisedapproximately 80 employees, admitted that she obtained frommanagement a “doctored” Union leaflet which stated, in part:HOW WILL THE UNION HELP US WHEN THEFACILITY CLOSES IT’S [SIC] DOORS BECAUSETHE UNION KEEPS US OUT OF LARGERHEALTHCARE SYSTEMS AND THE FINANCIALSUPPORT THAT COMES FROM THESEAFFILIATIONS????EVERYONE WILL BE LOOKING FOR JOBS!!!!!Fretz circulated this leaflet to her subordinates at meetings,highlighting the language concerning affiliation and warningthat unionization could jeopardize the facility’s affiliationprospects.The hearing officer credited the employees’ testimony overStorer’s testimony and concluded that Storer’s predictionsabout the impact of unionization on affiliation wereexaggerated. Taken in conjunction with the prediction thatthe facility would close within 18 months without a partner,the hearing officer found that Storer effectively threatened toclose the facility in violation ofNLRB v. Gissel Packing Co.,395 U.S. 575 (1969). The Board adopted the hearing officer’sfindings and ordered a new election based, in part, on thesefindings.2.St. Francis contends that the record does not support athreat. It maintains that Storer merely represented thatunionization had the potential to disrupt affiliation, and that8NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401this prediction was supported with objective evidence,specifically, the “concerns” raised by one potential affiliate.Section 8(a)(1) of the National Labor Relations Act(NLRA) prohibits interference, restraint, or coercion ofemployees in the exercise of the right to self-organization.29 U.S.C. § 158(a)(1).“The test for determining whether an employer hasviolated section 8(a)(1) is whether the employer’sconduct tends to be coercive or tends to interfere with theemployees’ exercise of their rights. In making thisdetermination, the Board considers the total context inwhich the challenged conduct occurs and is justified inviewing the issue from the standpoint of its impact uponthe employees.”United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071-72 (6th Cir.1994)(citations omitted).Like the Board, we must consider the effect of statementsmade during a union election campaign from the employees’perspective, taking into account “the economic dependence ofthe employees on their employers, and the necessary tendencyof the former, because of that relationship, to pick up intendedimplications of the latter that might be more readily dismissedby a more disinterested ear.”Indiana Cal-Pro, Inc. v. NLRB,863 F.2d 1292, 1299 (6th Cir. 1988) (internal quotation marksand citations omitted).Management’s expression of views or opinion ispermissible if the expression contains “no threat of reprisal orforce or promise of benefit.” 29 U.S.C. § 158(c). Thus, theSupreme Court has held that an employer maymake a prediction as to the precise effects he believesunionization will have on his company. In such a case,however, the prediction must be carefully phrased on thebasis of objective fact to convey an employer’s belief asto demonstrably probable consequences beyond hisNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre33St. Francis contends that the six-month statute oflimitations period under 29 U.S.C. § 160(b) began to runwith its July 1997 refusal to bargain and did not start anewwith its March 1998 refusal. The Board maintains that theMarch 3, 1998, refusal constituted an independent unfairlabor practice, and the unfair labor practice charge was filedwithin six months of that refusal. The Board reasons that theMarch 1998 refusal was independent of the earlier refusalbecause it fell within one year of the Union certification,during which time St. Francis was under a continuingobligation to bargain.SeeBrooks v. NLRB, 348 U.S. 96, 104(1954).We reject St. Francis’s argument. First, we note that thesix-month limitations period is procedural, not jurisdictional,and is therefore “subject to recognized equitable doctrines.”Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11(1982);see alsoNLRB v. Babcock & Wilcox Co., 697 F.2d724, 727 (6th Cir. 1983). InNLRB v. Basic Wire Products,Inc., 516 F.2d 261, 268 (6th Cir. 1975), we held thatsuccessive refusals to bargain within one year of unioncertification constitute independent unfair labor practices forpurposes of applying the six-month limitations period.SeealsoBentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264n.2 (D.C. Cir. 1991). Moreover, even if we were inclined torevisit our holding inBasic Wire Products, we need notaddress the timeliness of the unfair labor practice chargegiven our other holdings. The Board erroneously denied St.Francis’s request for review of the second election on June16, 1997—almost one month before the Union’s firstbargaining request. This renders moot the timeliness of theunfair labor practice charge emanating from St. Francis’srefusal to bargain.V.WeDENYSt. Francis’s petition for review on the firstelection,GRANTSt. Francis’s petition for review on thesecond election, andDENYthe Board’s application for32NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401The Board argues as a last resort that St. Francis cannotchallenge the failure to conduct an evidentiary hearing on theBiddle letter objection because St. Francis never asked theBoard for an evidentiary hearing. This argument is bothfactually and legally incorrect. In asking the Board to reviewthe Regional Director’s certification of the second election,St. Francis addressed the Biddle letter, among otherobjections. At the conclusion of its request, St. Francis askedthe Board to either order a rerun election or “hold a hearingand further develop the evidence in this matter.” Moreover,the Board was required to hold a hearing once St. Francissucceeded in raising substantial and material factual issuessurrounding the Biddle letter. “‘[I]n the course ofdetermining whether the Board has abused the discretionentrusted to it by Congress to adjudicate representationdisputes fairly, we must satisfy ourselves that the Board’sorder is the product of procedures which are fundamentallyfair.’”Gormac, 190 F.3d at 746 (quotingShrader’s, 928 F.2dat 198).We conclude, therefore, that the Board abused its discretionin refusing to grant an evidentiary hearing to evaluate theBiddle letter underVan Dornand its progeny.IV. Statute of LimitationsFinally, St. Francis maintains that the Board, and thereforethis court, lacked jurisdiction over the Union’s unfair laborpractice charge because the charge was untimely. On July 14,1997, following the Regional Director’s certification of thesecond election, the Union sent a letter to St. Francisrequesting dates for collective bargaining. In its July 28,1997, response letter, St. Francis refused to bargain andadvised the Union that it intended to seek judicial review ofthe certification. On February 20, 1998, the Union againrequested bargaining. In a March 3, 1998, response letter, St.Francis directed the Union to its earlier refusal. The Unionfiled its unfair labor practice charge with the NLRB onMarch 11, 1998.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre9control . . . . If there is any implication that an employermay or may not take action solely on his own initiativefor reasons unrelated to economic necessities and knownonly to him, the statement is no longer a reasonableprediction based on available facts but a threat ofretaliation based on misrepresentation and coercion [andin violation of the NLRA].Gissel Packing Co., 395 U.S. at 618 (citations omitted);seealsoIndiana Cal-Pro, 863 F.2d at 1298.If an employersucceeds in articulating an objective basis for its prediction,the Board bears the burden of demonstrating that theprediction was not objective or was untruthful.DTR Indus.,39 F.3d at 114.Although the matter is not entirely free from doubt, weconclude that we must agree with the Board’s determinationthat Storer threatened facility closure in violation of section8(a)(1). This threat was comprised of two predictions: (1)that no entity would affiliate with St. Francis if the Unionwon the election; and (2) that St. Francis could not operatelonger than 18 months if it failed to affiliate with a partner.The parties do not dispute the content or objective basis forthe second prediction.Rather, the dispute centers on the first prediction and,specifically, what Storer said and his objective basis for suchstatement. We defer to the Board’s finding that Storerpredicted thatnopartner would want to affiliate with St.Francis if the facility elected the Union. We see no reason todisturb this credibility determination, which the hearingofficer based upon the cumulative testimony of employeewitnesses and his observations of witness demeanor. St.Francis has failed to articulate an objective basis for thisprediction. St. Francis insists that the most likely partner hadexpressed “concerns” about possible unionization at St.Francis. However, this evidence hardly supports theprediction thatnocompany would want to affiliate with St.Francis if the employees elected a union. Viewing Storer’s10NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401statements from the perspective of employees, hisexaggeration of the objective evidence was material. Thus,substantial evidence supports the Board’s finding that Storer’sexaggerated prediction violated section 8(a)(1)’s prohibitionon coercing employees in the exercise of their organizationrights.St. Francis argues, in the alternative, that Storer’sstatements occurred too far before the election to interferewith employees’ free and fair choice. Timing is one of theobjective factors that the Board considers in determiningwhether forbidden statements were reasonably likely tointerfere with employees’ free choice.SeeNLRB v. DickinsonPress, Inc., 153 F.3d 282, 286 (6th Cir. 1998). However, it isnot dispositive. Thus, inPeabody Coal Co. v. NLRB, 725F.2d 357 (6th Cir. 1984), we upheld the Board’sdetermination that the employer engaged in misconductduring a representation election by making unsupportedpredictions of plant closure where those predictions occurredthree and four weeks before the election. In this case, thethreat occurred approximately two weeks before the election.Given that threats of facility closure are among the mostflagrant variety of unfair labor practices,DTR Indus., 39 F.3dat 113, and are likely to be difficult to dispel when viewedfrom the employees’ perspective, we see no reason to disturbthe Board’s finding based on the timing of the threat.C.St. Francis’s Representations Concerning BargainingPosture1.During an August 6, 1996, open forum, an employee askedwhat benefits would be available if the employees voted forUnion representation. According to Storer, he responded thatbargaining in contract negotiations involves a give and take,that employees may keep something and may lose something,and that “everything is negotiable.” He recalled using theNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre31the election decisively. The closeness of the results of thesecond election, standing alone, may be insufficient to supporta finding that the Biddle letter actually affected employees.But we view this evidence in the context of the overall Unionelection campaign. St. Francis established a material issue offact as to the impact of the Biddle letter because: (1) theUnion lost the first election by an even greater margin thanthat by which it won the second election; (2) employees didnot see the Biddle letter during the first election campaign;and (3) the Biddle letter touched on a significant andcontested issue in the campaign.The Board insists that it was unnecessary to conduct theforegoing analysis in this case because the employees werecapable of recognizing the Biddle letter as campaignpropaganda and accord it the proper weight. The Board citesContech, 164 F.3d 297, in support of its contention. TheBoard’s approach is clearly at odds withVan Dornand itsprogeny. First,Contechis distinguishable from this case, asthe alleged misrepresentations inContechappeared in Unionletters and there was no evidence of “pervasivemisrepresentation or artful deception.”Id.at 307. In contrast,the Biddle letter was not readily identifiable as campaignpropaganda because it appeared to be a personal messagefrom a former co-worker, was handwritten in letter rather thanleaflet form, and used language such as “we” and “fellow coworkers.”SeeDayton Hudson, 987 F.2d at 365. Mostimportantly, labeling material as “propaganda” does notinsulate the material from consideration underVan Dorn.Such an approach would effectively eviscerateVan Dornbecause virtuallyanyrepresentation made in the context of aunion campaign could be characterized as propaganda. Thus,even if employees are capable of recognizing literature ascampaign propaganda—based on its source or content—amisrepresentation in the propaganda may be so artful ordeceptive that it overcomes the employees’ naturalskepticism, “resulting in employees believing that thecampaign propaganda must absolutely be true.”Hub Plastics,52 F.3d at 613.30NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401The third, and most important, factor favors St. Francis.SeeGormac, 190 F.3d at 748. First, it is undisputed that themanagement raise issue was hotly contested in the daysleading up to the second election. The Union’s campaignliterature suggested that management’s greed was detrimentalto the employees’ work environment and to St. Francis’soverall patient care mission. The management raise issue wasclosely related to one of the central issues in bothcampaigns—St. Francis’s long-term financial viability.Second, the Biddle letter insinuates that St. Francisintentionally lied to its employees by denying that it gaveraises and engaged in deceptive practices by backdating theraises. Thus, the letter challenges St. Francis’s overallcredibility, even apart from the management raise issue.SeeNLRB v. Hub Plastics, Inc., 52 F.3d 608, 612 (6th Cir. 1995).Fourth, we find that St. Francis has established an issue ofmaterial fact as to the source of the Biddle letter. Thereappears to be no dispute, at least at this juncture, that Biddlewrote and signed the letter. However, St. Francis offeredevidence that the Union was responsible for mailing the letterto the employees. Contrary to the Board, we do not believethat most employees would assume that the letter was Unionsponsored propaganda simply because it addressed an issuethat the Union had raised in earlier campaign literature.Likewise, although the Biddle letter states that the Union hadhelped Biddle fight for “[her] rights,” the letter does notsuggest that the Union had any involvement in drafting,sponsoring, or circulating her letter.Cf.Gormac, 190 F.3d at749. No Union insignia appeared on the letter or theenvelope, the letter was handwritten, and only Biddle’s returnaddress appeared on the envelope.The fifth factor also weighs in favor of St. Francis, albeitsomewhat less strongly than the third or fourth factors. Thesecond election was relatively close, with 68 employeesvoting for the Union, 61 voting against the Union, and sixchallenged votes. Even ignoring the challenged ballots, if theBiddle letter affected the vote of four employees, it impactedNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre11words “start[ing] from scratch” in describing the bargainingprocess. Storer denied stating that employees would lose theirbenefits before bargaining began, or that minimum wage withno benefits was the starting point for bargaining.The Union presented testimony from two employees whoattended the August 6 open forum. Employee Rose recalledStorer stating that bargaining starts “from zero” and that ifemployees wanted the level of benefits they currently enjoyed,they would need to negotiate it and it was “not guaranteedthat [they would] get them.” According to employee Kimmet,Storer stated that everything was up for negotiation, nothingwas guaranteed, and employees would start from zero and“negotiate back up” or “work up to regain the benefits.”On August 21, 1996, St. Francis distributed campaignliterature to its employees stating, in relevant part:While bargaining goes on, wages, benefits and workingconditions typically remain as they have been until anagreement has been reached.. . . .Collective bargaining is a gamble — with your wages,benefits and working conditions on the table . . . .Collective bargaining means that you could possibly endup withmore, thesame, orlessthan you have now.(Emphasis in original.)In a September 4, 1996, memorandum to employees, Storernoted that employees had inquired about the bargainingprocess following the August 21 memorandum. TheSeptember 4 memorandum, in question-and-answer format,included the following description of bargaining:QUESTION: The union said negotiations mean wekeep what we have and change what wedo not like. Is this true?12NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401[ANSWER:]Negotiations are a process of give andtake. If you have a union, it would meanyou are willing to give them your wages,benefits, and other things you have now.The union will bring these things to theFacility and negotiate. In the end youcould end up with more, the same, orless than what you have now.The union may say you will get more,but there are no guarantees. Again,negotiations involve a process of giveand take and YOU COULD LOSE.St. Francis distributed a similar memorandum on September24, 1996, stating that employees “must negotiate your wages,benefits, and working conditions through the bargainingprocess where you could gain, stay the same or lose.”Another pro-management leaflet of uncertain origin warnedemployees not to:FORGET that everything will start at“0”when thecontract negotiations begin!! We could beGIVING UPwhat we take for granted . . . ACCUMULATIVE PTO,DRESS DOWN DAYS, ETC. . . .Things could get a lotWORSEinstead of better!Based on this evidence, the hearing officer found thatStorer had stated that bargaining would start “from zero” andemployees would need to “bargain up” to regain the benefitsthey already had. While some literature used more balancedlanguage, the pro-management leaflet from an unidentifiedsource used the “start at ‘0’” phrase. The officer held thatthese oral and written statements constituted an unlawfulthreat to reduce employee benefits and begin bargaining atzero if the employees voted for Union representation. TheBoard adopted these findings.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre29that employees did not actually receive the letter until twodays before the election, at most, and perhaps one day. Weexplicitly disapproved of such conduct in an analogous casewhere a letter overstating the company’s profits was mailedto employees three days before an election.Dayton HudsonDep’t Store Co. v. NLRB, 79 F.3d 546, 551 (6th Cir. 1996).The second factor is St. Francis’s opportunity to respond tothe alleged misrepresentations. We reject the Board’scontention that St. Francis had an adequate opportunity toaddress the management raise issue because St. Franciscirculated a letter to all employees one week before theelection. The Biddle letter appearedafterSt. Francis’s letterand raised a serious question as to the veracity of St. Francis’searlier representations. Thus, our analysis focuses on St.Francis’s opportunity to respond to the Biddle letter, inparticular, rather than its opportunity to address the generalmanagement raise issue.We first note that the nature of the allegedmisrepresentations, which directly challenged St. Francis’soverall credibility, may well have undermined St. Francis’sability to develop an effective response.While St. Franciscould have undermined Biddle’s credibility by publicizing thetrue reason for her discharge, it chose not to do so out ofconcern for Biddle’s privacy. St. Francis presented to theRegional Director an affidavit from its Human ResourcesDirector, Joan Schmidt, stating that she learned of the Biddleletter one day before the election. In a separate letter to theRegional Director, St. Francis explained that “Storer andother managers were able to respond to some questions fromemployees in the dayor twopreceding the election about thestatements made in Biddle’s letter . . . .” (Emphasis added.)This evidence suggests that St. Francis may have had at leastsome opportunity to address the Biddle letter before theelection. The direction in which this second factor points is,therefore, unclear.28NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401deceptive manner in which it was made, a manner whichrenders employees unable to evaluate the forgery forwhat it is.Id.at 133 (footnotes omitted),quotedinDayton HudsonDep’t Store Co. v. NLRB, 987 F.2d 359, 364-65 (6th Cir.1993). We carved out a narrow exception toMidlandNationalinVan Dorn, holding:There may be cases where no forgery can be proved, butwhere the misrepresentation is so pervasive and thedeception so artful that employees will be unable toseparate truth from untruth and where their right to a freeand fair choice will be affected. We agree with theBoard that it should not set aside an election on the basisof the substance of representations alone, but only on thedeceptive manner in which representations are made.736 F.2d at 348.We apply this standard by assessing a number of factors,including: (1) the timing of the misrepresentation; (2)whether the employer had an opportunity to respond; (3) thenature and extent of the misrepresentation; (4) whether thesource of the misrepresentation was identified; and (5)whether there is evidence that employees were affected by themisrepresentation.Gormac, 190 F.3d at 747 (citingMitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir.1996)). The closeness of the election is an importantconsideration in evaluating the fifth factor.Seeid.None ofthe factors, standing alone, is dispositive.We are satisfied that St. Francis presented evidence raising,at a minimum, material factual disputes as to at least four ofthese five factors. If proven, this evidence would justifysetting aside the second election. First, the timing of theBiddle letter cuts in favor of St. Francis. St. Francis presentedevidence that the Biddle letter was mailed three days beforethe election directly to the employees’ homes, rather thanbeing distributed at the workplace. It is reasonable to inferNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre132.St. Francis contends that it properly advised employeesabout the potential consequences of choosing Unionrepresentation, asserting that there was no evidence to supportthe Board’s conclusion that Storer threatened toreducebenefits. The Board insists that this issue is one of witnesscredibility, and that the employees’ testimony demonstratedSt. Francis’s intent to adopt a regressive bargaining posture.It is not unlawful for an employer to adopt a hardbargaining posture in labor negotiations. To the contrary,hard bargaining is “countenanced by the NLRA as aninevitable aspect of labor-management relations.”NLRB v.Gibraltar Indus., Inc., 653 F.2d 1091, 1096 (6th Cir. 1981).Thus, an employer may represent during an election campaignthat it will adopt a hard bargaining posture if a union iselected. Such a prediction, taken alone, does not interferewith the employees’ free and fair choice.On the other hand, where an employer “convey[s] themessage that a consequence of the selection of the unionwould be the discontinuance of existing benefits and a ‘startfrom scratch,’” such a statement may have a coercive effectthat violates the NLRA.Surprenant Mfg. Co. v. NLRB, 341F.2d 756, 761 (6th Cir. 1965). In assessing such arepresentation, the Board must consider the timing of thestatement, the opportunity of the union to respond, and thecontent of the union’s responses.Automation andMeasurement Div., Bendix Corp. v. NLRB, 400 F.2d 141, 146(6th Cir. 1968).The Board’s finding that St. Francis threatened to decreaseor eliminate existing benefits before bargaining began is notsupported by substantial evidence on the record as a whole.First, Storer’s admitted statement that negotiations would start“from zero” or “from scratch” was—taken alone—apermissible prediction of a hard bargaining posture. Thehearing officer nevertheless couched his conclusion of an14NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401unlawful threat in terms of “credibility,” explaining that hefound the testimony of Rose and Kimmet more believablethan Storer’s testimony. We see no reason to disturb thiscredibility determination. However, the testimony of Roseand Kimmet does not support a finding that Storer threatenedtoreduceoreliminatebenefits before bargaining began. Werecognize that our review of the Board’s inferences from thefactual evidence “‘is limited to the determination ofreasonableness—not rightness.’”NLRB v. Kentucky MayCoal Co., 89 F.3d 1235, 1242 (6th Cir. 1996) (quotingNLRBv. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)).We find, however, that the Board’s inference from theemployees’ testimony was unreasonable. Rose’s andKimmet’s testimony—that employees would need tonegotiate to achieve their current benefits once bargainingbegan—merely explained the permissible bargaining “fromzero” statement in more concrete terms.Even assumingarguendothat Storer did threaten during theAugust 6 open forum that employee benefits would bereduced or eliminated before negotiations began, the timingof this statement and later events remedied any possiblecoercive effect. The statement was made to a limited numberof employees who chose to attend the open forum almost twomonths before the election, giving the Union ampleopportunity to respond. As it happened, no response wasnecessary because St. Francis’s own campaign literaturedistributed after August 6 obviated any threat to reduce oreliminate benefits before bargaining began. That literature,which was addressed toallemployees, explicitly stated thatemployees could expect to remain at their current levels ofpay and benefits during negotiations but could ultimately loseor gain benefits as a result of the bargaining process.Contrary to the hearing officer’s suggestion, the reference inone piece of literature to bargaining “from zero” was entirelypermissible and was not coercive.Our rejection of the Board’s finding that St. Francisthreatened to reduce or eliminate benefits does not require usNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre27to conduct a review consistent with our decision inVan Dornand its progeny.The Board argues that the Regional Director correctly heldthatVan Dorndid not require an evidentiary hearing in thiscase because the Biddle letter was not forged or deceptive. Itis the Board’s position that the employees could recognize theBiddle letter as Union propaganda given the letter’s contentand the fact that the Union had previously publicized the payraise issue in its campaign.We review a Board’s decision to uphold or set aside anelection in light of campaign misrepresentations for abuse ofdiscretion.Van Dorn, 736 F.2d at 347.The Board abuses itsdiscretion if it refuses to grant an evidentiary hearing whenmaterial issues of fact exist as to whether a fair election washeld. However, we will remand a case for an evidentiaryhearing only where “an employer’s objections and supportingproofs indicate that there exist material, factual disputes withthe Regional Director’s report which, if proved, demonstratethat the election should be overturned.”Colquest Energy,965 F.2d at 119;see alsoNLRB v. Gormac Custom Mfg., Inc.,190 F.3d 742, 746 (6th Cir. 1999).We adhere to the standards articulated underMidlandNational Life Insurance Co., 263 N.L.R.B. 127 (1982), andVan Dorn, 736 F.2d 343, in evaluating whether campaignliterature unlawfully interfered with the employees’ freechoice in a representation election. InMidland National, theBoard adopted the following rule:[W]e will no longer probe into the truth or falsity of theparties’ campaign statements, and . . . we will not setelections aside on the basis of misleading campaignstatements. We will, however, intervene in cases wherea party has used forged documents which render thevoters unable to recognize propaganda for what it is.Thus, we will set an election aside not because of thesubstance of the representation, but because of the26NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401In objecting to the results of the second election, St. Francisargued to the Regional Director that the Biddle letter includedmisrepresentations that interfered with the employees’ abilityto decipher the truth. St. Francis stated that it could offerevidence that: (1) Biddle’s claim about the raises was untrue;(2) that the Union owned the postage meter used to mail theBiddle letter to employees; and (3) that Biddle had beendischarged for falsifying paid-time-off records. St. Francisargued that Biddle’s misrepresentations were severelydamaging to the employer’s credibility on this key campaignissue given Biddle’s former position as a St. Francis humanresources secretary, which gave her access to payrollinformation and thereby bolstered her credibility. TheRegional Director, citing our decision inVan Dorn PlasticMachinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984),rejected the employer’s argument without a hearing,concluding that the letter wastypical campaign propaganda that surfaces almostinvariably in strongly contested union campaigns. I donot believe the fact that Biddle had recently beendischarged from a position as a human resourcessecretary made it impossible for employees to ascertainthe value of this particular piece of literature.2.St. Francis contends that the Biddle letter had a devastatingimpact on the outcome of the second election because Biddledid not acknowledge that she was writing with the Union’scooperation and because she falsely alleged that managementhad received a raise within the past year. The Biddle letter“compounded” her falsehood by discrediting anydocumentary evidence that St. Francis might offer inresponse, falsely alleging that check amounts were backdatedand the difference was given in a separate check. St. Francisinsists that the results of the second election should be setaside and a new election ordered. In the alternative, St.Francis argues that the issue should be remanded to the BoardNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre15to reverse the Board’s decision to set aside the first election,however. That decision properly was based on the totality ofcircumstances, rather than a single incident.SeeContech,164 F.3d at 306. Therefore, we consider all of thosecircumstances in reviewing the Board’s decision.D.St. Francis’s Enforcement of its Uniform Policy1.St. Francis’s established guidelines for employeeappearance provided that “[o]ther than name tags and schoolor service pins, absolutely no other badges or buttons shall beaffixed to any employee’s uniform or clothing.” Twoemployees testified that their supervisors instructed them toremove a Union button bearing a written message during thecampaign. Several employees testified that they were alsoinstructed to remove purple “smiley face” buttons that wereknown to express Union support but contained no writtenmessage. The Union presented evidence that employeesregularly wore other types of buttons, such as sports logos andother symbols, which they were not asked to remove. BothStorer and a St. Francis supervisor testified that St. Francischanged its position shortly after employees started wearingthe “smiley face” pins to allow Union supporters to wearthese pins. St. Francis continued to prohibit the Union pinbearing a written message.The hearing officer credited the testimony of severalemployees who stated that they were ordered to removeUnion pins from their uniforms and that other types of pinswere permitted in the facility. He also found thatmanagement had made a conscious decision to permitemployees to wear the “smiley face” pin a few days afterthose pins appeared. The hearing officer concluded that St.Francis’s restriction on wearing Union insignia was unlawfulbecause St. Francis failed to demonstrate any specialcircumstances to justify the restriction. He discounted St.16NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401Francis’s decision to permit the smiley face pin as “nothingmore than an attempt by the Employer to impress employeeswith the control it exercises over their right to support aunion.”The Board adopted these findings.2.St. Francis argues that it was justified in enforcing itsappearance guideline to prohibit employees with patientcontact from wearing Union pins on their uniforms. Itdiscounts the evidence that employees were permitted to wearother kinds of pins on their uniforms, arguing that these pinswere smaller than the Union pins. Given its decision topermit the purple “smiley face” pins shortly after theyappeared, St. Francis contends that its prohibition on pins hadade minimisimpact, at most. On the other hand, the Boardargues that St. Francis failed to demonstrate any specialcircumstances to justify its prohibition on Union pins. Wefind that substantial evidence supports the Board’sconclusion. We note that this type of misconduct wouldlikely be insufficient, in and of itself, to justify setting asidean election. However, we consider it as part of the totality ofcircumstances surrounding the first election.The NLRA protects employees’ “right to self-organization,to form, join, or assist labor organizations, to bargaincollectively through representatives of their own choosing,and to engage in other concerted activities for the purpose ofcollective bargaining or other mutual aid or protection.”29 U.S.C. § 157. An employer who interferes with theserights engages in an unfair labor practice.Id.§ 158(a)(1).Wearing union buttons and pins falls within the definitionof “other concerted activities” under section 157 and,therefore, is protected under the NLRA.SeeRepublicAviation Corp. v. NLRB, 324 U.S. 793, 802-03 (1945).“[W]earing union insignia furthers ‘the right [of employees]to communicate effectively with one another regarding selforganization at the jobsite.’”NLRB v. Autodie Int’l, Inc., 169Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre25had received a raise since March 1996 and that Storer had notreceived a raise since October 1995. Subsequently, a letterpurportedly authored by a former employee of St. Francis’shuman resources department, Shelly Biddle, was mailed to allbargaining unit members at their homes. The letter waspostmarked March 17—just three days before theelection—and stated as follows:. . . I was not an eligible voter but I had access toadministrative procedures and I know that administrationdid not follow their own policies. Workers were unjustlyfired, written up, and threatened for managements [sic]own selfish reasons. According to a letter from [St.Francis], no raises were given to management. I can tellyou this is not true. Raises were given to certainmembers of management. Not only did they receive araise, but the amount was back dated and the differencewas given in a separate check. Their inconsistencies notonly cost myself and fellow co-workers their jobs, butcreated intimidation and fear for our co-workers.Even the federal government has said that managementis not credible. If I could vote I would vote YES and Ihope and pray that all employees eligible to vote will dothe same. You now have a second chance to makechanges inside St. Francis. Vote yes . . . to start theprocess of change.I’m in full support of all St. Francis employees that arescared, but it’s time we all stand up and stick together.If we join together and fight we can win! I am currentlyfighting for my rights as well as yours and if not for theunion I could not do it.I am keeping you in my prayers.St. Francis presented evidence that it learned of this letter oneday before the election.24NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401F. ConclusionIn sum, we conclude that substantial evidence supports theBoard’s determination that St. Francis interfered with theemployees’ free choice during the first election campaign bythreatening to close the facility if the Union were elected,prohibiting employees from wearing certain Union supportpins, and enforcing its no-solicitation policy in adiscriminatory manner. Therefore, we will not disturb theBoard’s decision to set aside the first election.III. The Second ElectionA.The second election was held on March 20 and 21, 1997,more than five months after the first election. Sixty-eightemployees voted in favor of the Union, 61 opposed, and therewere six challenged ballots. On March 28, 1997, St. Francisfiled objections to the second election, and the RegionalDirector overruled the objections without a hearing. TheRegional Director certified the Union as the collectivebargaining representative of the designated bargaining unit onApril 24, 1997. St. Francis requested NLRB review of thecertification, but the NLRB denied the request on June 16,1997. On appeal, St. Francis raises only one objection to thecertification of the second election results.B.The Board’s Failure to Hold aVan DornHearing on theBiddle Letter1.Shortly before the second election, Union literature accusedmanagement of awarding the CEO, Storer, a 14% raise, whileother employees had received no raises. On March 13,1997—one week before the second election—St. Francisresponded with a letter to employees representing that no oneNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre17F.3d 378, 383 (6th Cir. 1999) (quotingBeth Israel Hosp. v.NLRB, 437 U.S. 483, 491 (1978)). However, this right is notabsolute.Id.An employer may restrict employees fromwearing union insignia if it can demonstrate specialcircumstances that require the restriction to maintainproduction and discipline.Republic Aviation, 324 U.S. at803-04;Meijer, Inc. v. NLRB, 130 F.3d 1209, 1214 (6th Cir.1997).We have struggled in this circuit in applyingRepublicAviationto employer policies that generally prohibitemployees from wearing buttons or pins on their uniforms.Our approach to this issue is somewhat in flux. While it isunnecessary to definitively resolve this issue given the factsin this case, a summary of the relevant authority is warranted.In 1984, a divided panel adopted aper serule, holding that“where an employer enforces a policy that its employees mayonly wear authorized uniforms in a consistent andnondiscriminatory fashion and where those employees havecontact with the public, a ‘special circumstance’ exists as amatter of law which justifies the banning of union buttons.”Burger King Corp. v. NLRB, 725 F.2d 1053, 1055 (6th Cir.1984),disagreement recognized byMeijer, 130 F.3d 1209.We appliedBurger KinginUnited Parcel Service, 41 F.3d1068, where we reviewed the Board’s finding that UPSunlawfully disciplined a UPS driver for wearing a union lapelpin on his uniform. UPS maintained uniform and personalappearance standards that required drivers to wear “[o]nlydesignated uniform items approved by UPS.”Id.at 1069.The relevant collective bargaining agreement (CBA)authorized UPS to establish “reasonable standards concerningpersonal grooming and appearance and the wearing ofuniforms and accessories.”Id.We first noted that the rule inBurger Kingwas applicable because the UPS uniformeddrivers had substantial contact with the public.Id.at 1073.Proceeding with theBurger Kinganalysis, we concluded thatUPS did not enforce its uniform policy in a discriminatory18NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401manner. We noted that UPS had issued “Desert Storm” pins,safe driving pins, United Way pins, and Mack Truck pins, butheld that such conduct did not evidence discriminatoryenforcement because the CBA did not restrict UPS’s right toissue standards for uniforms.Id.Thus, we held that theemployer did not violate the NLRA.See alsoNLRB v. MeadCorp., 73 F.3d 74, 79 (6th Cir. 1996) (citingUnited ParcelServ., 41 F.3d 1068).More recently, another divided panel declined to apply theBurger Kingperserule. InMeijer, 130 F.3d 1209, the Boardsought to prohibit Meijer from disciplining employees whowore union pins.Id.at 1210. The company permitted itsuniformed employees to wear only those pins approved by thecompany, including buttons promoting certain products orservices, customer relation program buttons, or buttonsdesignating union affiliation.Id.at 1210-11. A new storemanager at one location prohibited employees from wearingany pins other than name badges, company approved buttons,United Way pins, or service recognition pins during a unionorganizing campaign.Id.at 1211. The manager enforced hispolicy and disciplined employees who wore “Union Yes” pinsduring the election campaign.Id.Meijer argued that the discipline was appropriate underBurger King.Id.at 1214. TheMeijermajority expressedskepticism of theper serule inBurger King. The majorityobserved that theBurger Kingpanel did not attempt toreconcile its holding with theRepublic Aviationrequirementthat employers demonstrate special circumstances to justifyrestricting employees’ presumptive right to wear unioninsignia.Id.at 1215. TheMeijercourt distinguishedUnitedParcel Service, reasoning that the court based its holding inthat case on UPS’s right under the CBA to promulgateappearance standards.Id.TheMeijermajority ultimatelyrejectedBurger King’sper serule in favor of the following:[The right to wear union insignia] can be curtailed if anemployer makes an affirmative showing that a specialNos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre23It appears that St. Francis’s written policy prohibitsdistribution of literature at any time in areasbeyondimmediate patient areas, such as the dining room and other“work area[s].” More importantly, based on Storer’stestimony, St. Francis adopted a policy during the Unioncampaign that was broader than its written policy, prohibitingthe posting of literatureanywhere in the facility. St. Francishas offered no evidence that these broad prohibitions werenecessary to protect patient care or the hospital’s operations,as required underBeth Israel Hospital/Baptist Hospital.Nevertheless, the hearing officer assumed that St. Francis’sno-solicitation policy was valid, and the Board has not arguedto the contrary.Rather, the Board contends that St. Francis applied a validno-solicitation policy in a discriminatory manner. Anemployer that adopts a valid no-solicitation policy mayviolate the NLRA by discriminating against union solicitationin enforcing the policy.SeeMeijer, 130 F.3d at 1212-14;NLRB v. St. Vincent’s Hosp., 729 F.2d 730, 735 (11th Cir.1984);Reno Hilton Resorts, 320 N.L.R.B. 197, 208 (1995).Here, there was ample evidence in the record to support theBoard’s conclusion that anti-Union literature was postedthroughout the facility in violation of Storer’s prohibition. St.Francis’s argument that the posting of anti-Union literaturecomplied with the terms of its written no-solicitation policyis misplaced. The posting clearly violated Storer’s expansionof that policy during the Union campaign. Moreover, thatStorer directed managers to remove anti-Union literature oncehe learned of its existence is insufficient to undermine theevidence that such literature was pervasive and at least onemanager was seen walking by the literature without removingit. In short, substantial evidence supports the Board’sdetermination that St. Francis tolerated the posting of antiUnion literature in violation of its stated no-solicitation policyand thereby unlawfully discriminated in enforcing its policy.22NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401know who was responsible for the postings and dideverything in its power to remove the anti-Union literature.The Board argues that there was no noticeable effort toremove the literature, that St. Francis tolerated other types ofsolicitation, and that any effort that St. Francis may havemade to remove the literature was ineffective.“Employer rules prohibiting organizational solicitation arenot in and of themselves violative of the [NLRA] . . . .”NLRB v. United Steelworkers of Am., CIO, 357 U.S. 357, 361(1958). As a general matter, an employer may adopt a ruleprohibiting employee solicitation during working hours. Anemployer may also prohibit employee solicitation on companyproperty after working hours if the employer demonstratesthat the rule is necessary to maintain production anddiscipline; absent such a showing, the solicitation rule isinvalid even if it is enforced neutrally against all solicitors.SeeRepublic Aviation, 324 U.S. at 803 & n.10, 805.Patient care concerns partially trump this general rule in thenonprofit hospital setting. A hospital may banallsolicitationand distribution in immediate patient care areas such aspatient rooms, operating rooms, and other locations wherepatients receive treatment.Beth Israel Hosp., 437 U.S. at495. However, to restrict employee solicitation in non-workareas or distribution of union literature during non-work timesin non-work areas such as lounges and cafeterias, the hospitalmust demonstrate that such solicitation would disrupt patientcare or health care operations.Id.at 495, 507;NLRB v.Harper-Grace Hosps., Inc., 737 F.2d 576, 578 (6th Cir.1984). Thus, if a hospital’s no-solicitation policy applies toareas beyond immediate patient care areas, the hospital bearsthe burden of presenting affirmative evidence to justify thepolicy in such areas.NLRB v. Baptist Hosp., Inc., 442 U.S.773, 784-86 (1979). “If the record is somehow incomplete onthis point, it is the hospital’s fault for not producing sufficientevidence.”Harper-Grace Hosps., 737 F.2d at 579.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre19circumstance exists which requires restrictions of thisright in order to maintain production, reduce employeedissension or distractions from work, or maintainemployee safety and discipline. This right may also becurtailed if the employer makes an affirmative showingthat the union insignia that the employee seeks to wearwill negatively impact a certain public image that theemployer seeks to project.Id.at 1217. The court enforced the Board’s order becauseMeijer failed to satisfy this burden.Id.However, we recently suggested an arguably more relaxedstandard than that articulated inMeijer. InAutodie, 169 F.3d378, the NLRB sought to prohibit the employer fromrequiring employees to remove union steward pins. Theemployer had not implemented a general dress code oruniform requirement and permitted employees to wearinformal clothing bearing product and businessadvertisements and logos from other companies.Id.at 384.Citing the employer’s burden to demonstrate “specialcircumstances” to justify its restriction, we noted that thisburden “is particularly difficult to meet when the employercannot show that its restrictions . . . comport with anannounced policy of general applicability.”Id.In enforcingthe Board’s order, we noted that the employer failed todemonstrate “either ‘special circumstances’ requiring therestriction to maintain production and discipline or anannounced policy of general applicability justifying itsrestrictions of protected . . . activity.”Id.Thus, we suggestedthat a general uniform policy may justify independently arestriction on union pins. We did not address the possibleinconsistency between this approach and theMeijerapproach.Nevertheless, it is unnecessary for us to resolve anypossible discrepancy betweenMeijerandAutodiebecauseneither approach supports St. Francis’s position. There is nodispute that St. Francis consistently prohibited Union pinsbearing a written message, as distinguished from the “smiley20NLRB v. St. FrancisHealthcare CentreNos. 98-6297/6401face” pins that it decided to allow. St. Francis has notarticulated, much less demonstrated, any special circumstanceto justify this restriction underMeijer. There is no evidencethat the restriction was necessary to maintain production,reduce employee dissension, or maintain employee safety ordiscipline. Likewise, despite the existence of a uniformpolicy, St. Francis has not made an affirmative showing thatthe Union pins would harm St. Francis’s public image.Finally, St. Francis is unable to satisfy even the more relaxedAutodiestandard because it did not consistently enforce itsuniform policy. To the contrary, substantial evidencesupports the Board’s finding that St. Francis regularlytolerated non-Union pins and buttons on employee uniformsalthough those pins violated St. Francis’s uniform policy.Unlike the employer inUnited Parcel Service, St. Francis hadnot reserved its discretion to authorize certain pins onemployee uniforms.While substantial evidence supports the Board’s decisionthat St. Francis engaged in misconduct by prohibiting certainUnion pins, this finding alone would be insufficient to setaside the first election. Again, however, we consider thismisconduct as part of the totality of circumstancessurrounding the first election.E.St. Francis’s Enforcement of its No-Solicitation Policy1.St. Francis had a no-solicitation policy prohibitingemployees from:sell[ing] or distribut[ing] material of any kind, including,but not limited to: leaflets, advertising material, tickets,subscriptions, and cards, to any other employee wheneither employee is on work time. Nor shall anyemployee sell or distribute material of any kind at anytime in any work area of the facility.Nos. 98-6297/6401NLRB v. St. FrancisHealthcare Centre21The policy also prohibited all solicitation, distribution, andsales in “patient care areas,” defined as:patient/resident rooms, physical therapy, occupationaltherapy, therapeutic recreation and other treatmentrooms, and hallways and corridors adjacent to any ofthose rooms; sitting or waiting rooms and lounges onpatients/residents floors that are accessible to and used bypatients/residents; the dining room and elevators.Storer testified that St. Francis prohibited the posting of anypro-Union or anti-Union literature “throughout the building”during the campaign. He also testified that after he learnedabout the anti-Union postings from his secretary, he instructedmanagers and directors to remove such materials if they sawthem. Nevertheless, several employees testified that theyregularly observed anti-Union fliers and posters throughoutthe facility. One employee testified that she saw thepersonnel manager walk past several pieces of anti-Unionliterature without removing them. The Union also presentedevidence that St. Francis tolerated solicitations for otherproducts and causes, such as Avon products, school benefits,and raffle ticket sales for outside organizations.The hearing officer found that although St. Francis’s nosolicitation policy was otherwise valid, St. Francis enforcedthe policy in a discriminatory manner by regularly permittingother types of solicitation in the facility and tolerating theposting of anti-Union literature.2.St. Francis maintains that it enforced its neutral nosolicitation policy consistently in prohibiting the posting ofboth Union and anti-Union literature at its facility. St. Francisalso contends that because the anti-Union literatureintroduced during the hearing was not posted in patient careareas, and there was no evidence that the literature was postedduring “work time,” the postings did not violate the nosolicitation policy. In any event, St. Francis insists it did not