### *T he HONORABLE RICHARD H. KYLE, United States Distric t

Ju dge for the District of Minnesota, sitting b y designation. ___________ No. 95-2811

___________ Rosewood Care Center, of * Joliet, Inc., * * Petitioner, * On Petition for Review * of An Order of the v. * National Labor Relations Board. * National Labor Relations Board, * * Respondent. *

___________ No. 95-3172

___________ Rosewood Care Center, of * Joliet, Inc., * * Respondent, * On Petition For Enforcement * of An Order of the v. * National Labor Relations Board. * National Labor Relations Board, * * Petitioner. *

___________ Submitted: January 11, 1996 Filed: May 17, 1996

___________ Before B OWMAN and JOHN R. GIBSON, Circuit Judges, and KYLE, Distric t * Judge.

___________ JOHN R. GIBSON, Circuit Judge.

### -2- Rosewood Care Center of Joliet, Inc. seeks review of a National Labor Relat ions Board order requiring it to bargain with the United Food an d Commercial Workers Union, Local 1540. Rosewood refused to bargain with th e uni on because it claims that the representation election was tainted b y coerci ve conduct before the election and by unfair election procedures

. The NLRB cross-petitions for enforcement. We deny review and gran t enforcement.

On March 1, 1994, the union won the representation election by a 26 to 24 vote. After th e election Rosewood objected to certification of the union, claiming that coercive conduct by union supporters created a n atmosph ere of intimidation and that the Board agent who conducted th e election did so unfairly.

Ro sewood raised three claims of coercive conduct. The first wa s based on the experience of a supervisory employe e, Theresa Nutter, who was not a member of the bargaining unit. The second was based on th e experience of a bargaining unit employee, Karen Crawford, who attended a union organizing meeting. Crawford stated in an affidavit that at th e meeting a fellow employee named Rochelle called her a vulgar name, accused her of spying, and told her she could not leave the meeting without signin g a union card. Crawfo rd said that the union representative at the meeting told her that she did not have to sign a card, but that "signing does not
mean we are for or against the union." After the meeting Rochelle remarke d to Crawford, "I see y ou drive a Bronco." Crawford interpreted this as an implied threat; she became afraid to drive her B ronco to work and borrowed other car s so that Rochelle would not recognize her car. The thir d compl aint was that union representatives harassed unit employees b y visiting their homes.

Rosewood also challenged the Board a gent's actions in conducting the elec tion, because he permitted one employee to vote before the poll s opened, after he had refused to accommodate three other employees who coul d not be at the polls during the assigned

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hours. At the morning pre-election conference, the Rosewood representativ e mentioned that there were three employees who "h ad to attend a funeral and [might] not be able to vote at the designated times." The Board agent sai d "there was no provision for them to vote any other way." About ten minute s before the polls opened in the afternoon, employee Bridgette Hayes appeare d and asked if she could vote early so she could go to a funeral. Th e Rosewood representative and the union representative agreed to permit this , and the Board agent allowed Hayes to vote. That afternoon, after the poll s had closed and the votes had been counted, the three other employee s arrived a t work. They spoke to a Rosewood administrator, who told the m they were too late to vote. They did not speak to the Board agent.

Pursuant to 29 C.F.R. § 102.69 (1996), the Regional Directo r investigated Rosewood 's objections. The Regional Director did not hold a hearing, but rendered her decision based on affidavits gathered in th e course of her investigation.
The Regional Director overruled Rosewood's objections. She con cluded that Rosewood made no showing of conduct that would interfere with th e employees' free choice in the election. The Regional Director concluded that the statements made to Theresa Nutter were ambiguous, and at any rate , Nutter was not a member of the bargaining unit. The Regional Directo r stated that the incident concerning Karen Crawford at the union meeting di d not merit overturning the election because the person who made the imprope r remarks was a fellow employee, not a union representative. The Regional Direct or concluded the incident was isolated and that the unio n representative intervened appropriately. The only evidence of the union harassing anyone at home was the affidavit of one man who received tw o visits from union representatives. The first re presentative left when the man told her he was n ot interested in the union and the second left after being told the man was not at home.

### The Board's certification of the election is not subject to 1 

### judicial review directly. In order to obtain judicial review , Rosewood refused to bargain; in the resulting unfair labor p ractice proceeding, Rosewood was enti tled to assert its objections to the election certification. See N.L.R.B. v. Winburn Tile Mfg. C o. , 663 F.2d 44, 47 (8th Cir. 1981); N.L.R.B. v. Van Gorp Corp. , 615 F.2d 759, 760 (8th Cir. 1980).
-4- The Regional Director overruled the objection to the Board agent' s differing treatment of requests to vote outside the assigned voting hours. The Director based he r decision on the distinction that the voter who had been allowed to vote early had actually presente d herself at the polls and perso nally asked permission to vote early. The three others, whom th e agent denied special dispensation, did not appea r at the polls personally.

Rosewood objected to the Regional Director's report. The Boar d review ed the report and adopted the Regional Director's findings an d recommendations. Rosewood Care Center, Inc. of Joliet , 315 N.L.R.B. 746 (1994). The Board did not discuss the coercive conduct claims, but di d discuss the election procedure. The Board focussed on the distinction tha t the employee who was allowed to vote early had actually presented herself at the polls, while the pre-election request the Board agent refused was "an abstract question about three employees who might not be able to vote during the stipulated polling hours." Id. at 746. Member Cohen dissented , arguing that the Board agent's actions created t he appearance of disparate treatment. He wrote that there were four employees who needed to vot e outside the designated hours because of funerals ; one was allowed to do so and three were not. Id. at 747. He rejected the majority's reasoning tha t the three rejected em ployees did not appear at the polling place; he said that they did not appear because the Board agent had flatly refused t o accommodate them. Id . at 748 n.3. The Board certified the election.
Rosewood refused to bargain with the union, the union brought 1

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an unfair labor practice charge, and the Board ordered Rosewood to bargain

. The Board determined that the record from the ce rtification proceeding was adequate and that the re were no new evidentiary issues, citing Pittsburgh Plate Glass Co. v. N. L.R.B. , 313 U.S. 146, 162 (1941). Therefore, on the basis of its earlier decision, it entered summary judgment for the union. Rosewood Care Center of Joliet , 317 N.L.R.B. No. 139 (N.L.R.B. June 26 , 1995).

I.

Rosewo od argues that it was entitled to a hearing on its claims o f
coerc ive conduct tainting the election. A hearing is necessary if th e obj ecting party makes a prima facie showing of substantial and materia l fact s which, if true, warrant setting aside the election. 29 C.F.R

. § 102.69(f) (1996); Nabisco, Inc. v. N.L.R.B. , 7 38 F.2d 955, 957 (8th Cir. 1984); N.L.R.B. v. Monark Boat Co. , 713 F.2d 355, 356 (8th Cir. 1983) ; Beaird-Poulan Div., E merson Elec. Co. v. N.L.R.B. , 571 F.2d 432, 434 (8th Cir. 1978). Where there is a conflict in testimo ny on a significant issue,

a party is entitled to the opportunity to produce evidence that might rebu t the other side's evidence, or at least subject the adverse witnesses to th e
"` cleansing rigors of cross-examination.'" Id. (quoting N.L.R.B. v
. Commercia l Letter, Inc. , 455 F.2d 109, 113-14 (8th Cir. 1972)). "It i s incumbent upon the party seeking a hearing to clearly demonstrate tha t factual issues exist which can only be resolved by an evidentiary hearing.

. . . Me re disagreement with the Regional Director's reasoning an d conclusions do[es] not raise `substantial and material factual issues. '

. . ." Bauer Welding and Metal Fabricators, Inc. v. N.L.R.B. , 676 F.2 d 314, 316 (8th Cir. 1982)(quoting N.L.R.B. v. Griffith Oldsmobile, Inc. , 45 5 F.2d 867, 868-69 (8th Cir. 1972)).

To set aside the election because of coercive conduct, Rosewoo d must show that an atmosphere of coercion and fear vitiated free choice in the election. Monark Boat Co. , 713 F.2d at 357;

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Nabisco , 738 F.2d at 957. Any incidents of intimidation should be viewed in the aggregate. Bauer Welding and Metal Fabricators , 676 F.2d at 318.
The Regional Director based her assessment of the incident inv olving Theresa Nutter on two factors: first, that the alleged threats wer e amb iguous, and second, that Theresa Nutter was not a member of th e bargaining unit. The statements alleged in Nutter's affidavit do indeed seem to be threatening. For instance, Nutter sa id one man told her not to park in the back parking lot because "there was going to be trouble in the bac k," and that "they were going to have a surprise for Rosewood thi s weekend." These stat ements only become ambiguous when viewed in light of the affidavit of union representative George Hol tshlag, who stated that he
was only warning employees about slippery conditions in the back parking lot, not threatening them. The ominous tenor of the comments Nutte r rep orted is at odds with Holtshlag's benign version of events. It i s difficult to accept the Board's harmonization of the two versions; instead , we consider the stories to require the fact finder to make a judgment abou t whom to believe. For this, a hearing would be necessary, were the inciden t significant enough to change the result of the proceeding. However, the entire incident is irrelevant because Nutter's a ffidavit did not show that anyone eligible to vote in the election was involved in any way or kne w anyt hing about the confrontation. Cf. Bauer Welding , 676 F.2d at 31 7 (hearing on intimidat ion issue necessary in part because union threatened supervisors and facts suggested bargaining unit employees knew of threats)

. Thus, the incident do es not tend to prove that the union denied anyone in the bargaining unit the right to vote his mind. Rosewood has not borne it s burden of coming forw ard with facts that would make the incident relevant to the material issue here--whether the vote reflected the employees ' unconstrained choice.
The incident involving Karen Crawford did involve a bargaining

### The Board also points out that Rosewood waived this thir d 2 

### point by failing to assert it before the Board in its except ions to the Regional Director's report. See N.L.R.B. v. District 50 , United Mine Workers of America , 355 U.S. 453, 464 (1958).
-7- unit employee, but the Regional Director reported that the event was too is olated to show a general atmosphere of fear and that the unio n representative at the meeting had responded appropriately to neutralize th e aggressive Rochelle. Significantly, it is Karen Crawford's affidavit whic h reports the union representative's corrective response (i.e., that Crawfor d didn't have to sign a union card), and so no credibility determination is necessary. Improper acts by fellow employees are given less weight than thr eats sanctioned by the union itself. See Millard Processing Servs. , Inc. v. N.L.R.B. , 2 F.3d 258, 261 (8th Cir. 1993), cert. denied , 114 S. Ct

. 922 (1994). Rosewood argues that if a union deputizes employees to solici t signatures on union cards, the employees' actions are imputable to th e union, citing Davlan Engineering, Inc. , 283 N.L. R.B. 803, 804 (1987). The facts alleged in Crawford's affidavit do not support an inference tha t Rochelle was authorized to speak for the union, since the unio n representative correc ted Rochelle's statement that Crawford had to sign a union card. See gene rally Millard Processing Servs., Inc. , 2 F.3d at 262 (third party's actions attributable to union onl y if union leads others to believe third party is union's agent).

Third , we can give no weight at all to Rosewood's complaint o f "harassing" visits by union representatives, since the only evidence on th e issue is one affidavit reporting two very ordinary and proper calls b y representatives who left as soon as they were asked to leave. 2

Since the first and third incidents bear no weight, Rosewood's only evidence to show an atmosphere of fear and coercion is the confrontation between Rochelle and Karen Crawford. On this record, we cannot say that Rosewood has made a prima facie case for setting

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aside the election for improper pre-election conduct.

II.

Rosewood contends that the Board age nt compromised the neutrality of the election by refusing permission for three employees to vote outside th e assi gned voting hours in order to attend a funeral, while permittin g another employee to vote early in order to attend a funeral.

The Board must set aside an election if its agent has indee d compr omised the neutrality of the election. Nabisco , 738 F.2d at 958

. "[T]he Board is respo nsible for assuring properly conducted elections and its role in the conduct of elections must not be open to question." Keron a Plasti cs Extrusion Co. , 196 N.L.R.B. 1120 (1972) (quoting New Yor k Telephone Co. , 109 N.L.R.B. 788, 790 (1954)). However, the Board ha s discretion in determining whether to order a new election. See Nabisco , 738 F.2d at 958.

The Board established its rule for late voting in Monte Vist a Disposal Co. , 307 N.L.R.B. 531 (1992). There, the Board held:
[A] n employee who arrives at the polling place after th e des ignated polling period ends shall not be entitled to hav e his or her vote counted, in the absence of extraordinar y circum stances, unless the parties agree not to challenge th e ballot.

Id. at 533-34 (footnotes omitted). Similarly, the Board's case handling manual instructs that agents should not allow early voting. N.L.R.B

. Casehandling Manual (Part Two) § 11318.5 (1989).

In the ce rtification proceeding the Board relied on the distinction that thos e employees who were not permitted to vote did not presen t themselves at the polls, whereas the one who was allowed to vote earl y asked to do so in person. 315 N.L.R.B. at 746-47. The Board also observe d that the Rosewood representative

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asked only a vague question about whether the three employees could vote outside the voting hours, without giving any concrete indication about whe n the three could be there. Id.

Rosewood argues that the distinction between the employee wh o presented herself at the polls and the three who did not is unfair, becaus e the Board agent's announced refusal to accommodate the three caused them not to appear. However, the conversation about the three employee s happened in the morning, and the same Rosewood a gent who was party to that conversation later agreed to let Bridgette Hayes vote before the poll s opened in the afternoon. Rosewood consented to let Hayes vote early

. Allowing Rosewood to use that incident to attack the election would give Rosewood an option to exercise or withhold, acco rding to the result of the election. This would create a far greater appearance of unfairness than did the Board agent's conduct at the election. The Board acted within its discretion in refusing to set aside the election. See Nabisco , 738 F.2d at 958.
We deny review and grant enforcement of the Board's order.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.