*The HONORABLE RICHARD H. KYLE, United States District

Judge for the District of Minnesota, sitting by

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 BOWMAN and JOHN R. GIBSON, Circuit Judges, and KYLE, District

*

Judge.

___________

JOHN R. GIBSON, Circuit Judge.
-2-

Rosewood Care Center of Joliet, Inc. seeks review of a National Labor

Relations Board order requiring it to bargain with the United Food and

Commercial Workers Union, Local 1540. Rosewood refused to bargain with the

union because it claims that the representation election was tainted by

coercive conduct before the election and by unfair election procedures.

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

enforcement.

 On March 1, 1994, the union won the representation election by a 26

to 24 vote. After the election Rosewood objected to certification of the

union, claiming that coercive conduct by union supporters created an

atmosphere of intimidation and that the Board agent who conducted the

election did so unfairly. 

Rosewood raised three claims of coercive conduct. The first was

based on the experience of a supervisory employee, Theresa Nutter, who was

not a member of the bargaining unit. The second was based on the

experience of a bargaining unit employee, Karen Crawford, who attended a

union organizing meeting. Crawford stated in an affidavit that at the

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 signing

a union card. Crawford 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 remarked

to Crawford, "I see you drive a Bronco." Crawford interpreted this as an

implied threat; she became afraid to drive her Bronco to work and borrowed

other cars so that Rochelle would not recognize her car. The third

complaint was that union representatives harassed unit employees by

visiting their homes. 

Rosewood also challenged the Board agent's actions in conducting the

election, because he permitted one employee to vote before the polls

opened, after he had refused to accommodate three other employees who could

not be at the polls during the assigned
-3-

hours. At the morning pre-election conference, the Rosewood representative

mentioned that there were three employees who "had to attend a funeral and

[might] not be able to vote at the designated times." The Board agent said

"there was no provision for them to vote any other way." About ten minutes

before the polls opened in the afternoon, employee Bridgette Hayes appeared

and asked if she could vote early so she could go to a funeral. The

Rosewood representative and the union representative agreed to permit this,

and the Board agent allowed Hayes to vote. That afternoon, after the polls

had closed and the votes had been counted, the three other employees

arrived at work. They spoke to a Rosewood administrator, who told them

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 Director

investigated Rosewood's objections. The Regional Director did not hold a

hearing, but rendered her decision based on affidavits gathered in the

course of her investigation. 

The Regional Director overruled Rosewood's objections. She concluded

that Rosewood made no showing of conduct that would interfere with the

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 Director

stated that the incident concerning Karen Crawford at the union meeting did

not merit overturning the election because the person who made the improper

remarks was a fellow employee, not a union representative. The Regional

Director concluded the incident was isolated and that the union

representative intervened appropriately. The only evidence of the union

harassing anyone at home was the affidavit of one man who received two

visits from union representatives. The first representative left when the

man told her he was not 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 practice

proceeding, Rosewood was entitled to assert its objections to the

election certification. See N.L.R.B. v. Winburn Tile Mfg. Co., 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 her decision on the distinction that the voter who had

been allowed to vote early had actually presented herself at the polls and

personally asked permission to vote early. The three others, whom the

agent denied special dispensation, did not appear at the polls personally.

Rosewood objected to the Regional Director's report. The Board

reviewed the report and adopted the Regional Director's findings and

recommendations. Rosewood Care Center, Inc. of Joliet, 315 N.L.R.B. 746

(1994). The Board did not discuss the coercive conduct claims, but did

discuss the election procedure. The Board focussed on the distinction that

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 the appearance of disparate

treatment. He wrote that there were four employees who needed to vote

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 that

the three rejected employees did not appear at the polling place; he said

that they did not appear because the Board agent had flatly refused to

accommodate them. Id. at 748 n.3. The Board certified the election.

Rosewood refused to bargain with the union, the union brought 1
-5-

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

The Board determined that the record from the certification proceeding was

adequate and that there 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.

Rosewood argues that it was entitled to a hearing on its claims of

coercive conduct tainting the election. A hearing is necessary if the

objecting party makes a prima facie showing of substantial and material

facts which, if true, warrant setting aside the election. 29 C.F.R.

§ 102.69(f) (1996); Nabisco, Inc. v. N.L.R.B., 738 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., Emerson Elec. Co. v. N.L.R.B., 571 F.2d 432, 434 (8th

Cir. 1978). Where there is a conflict in testimony on a significant issue,

a party is entitled to the opportunity to produce evidence that might rebut

the other side's evidence, or at least subject the adverse witnesses to the

"`cleansing rigors of cross-examination.'" Id. (quoting N.L.R.B. v.

Commercial Letter, Inc., 455 F.2d 109, 113-14 (8th Cir. 1972)). "It is

incumbent upon the party seeking a hearing to clearly demonstrate that

factual issues exist which can only be resolved by an evidentiary hearing.

. . . Mere disagreement with the Regional Director's reasoning and

conclusions do[es] not raise `substantial and material factual issues.'

. . ." Bauer Welding and Metal Fabricators, Inc. v. N.L.R.B., 676 F.2d

314, 316 (8th Cir. 1982)(quoting N.L.R.B. v. Griffith Oldsmobile, Inc., 455

F.2d 867, 868-69 (8th Cir. 1972)).

 To set aside the election because of coercive conduct, Rosewood must

show that an atmosphere of coercion and fear vitiated free choice in the

election. Monark Boat Co., 713 F.2d at 357;
-6-

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 involving

Theresa Nutter on two factors: first, that the alleged threats were

ambiguous, and second, that Theresa Nutter was not a member of the

bargaining unit. The statements alleged in Nutter's affidavit do indeed

seem to be threatening. For instance, Nutter said one man told her not to

park in the back parking lot because "there was going to be trouble in the

back," and that "they were going to have a surprise for Rosewood this

weekend." These statements only become ambiguous when viewed in light of

the affidavit of union representative George Holtshlag, 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 Nutter

reported is at odds with Holtshlag's benign version of events. It is

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 about

whom to believe. For this, a hearing would be necessary, were the incident

significant enough to change the result of the proceeding. However, the

entire incident is irrelevant because Nutter's affidavit did not show that

anyone eligible to vote in the election was involved in any way or knew

anything about the confrontation. Cf. Bauer Welding, 676 F.2d at 317

(hearing on intimidation issue necessary in part because union threatened

supervisors and facts suggested bargaining unit employees knew of threats).

Thus, the incident does not tend to prove that the union denied anyone in

the bargaining unit the right to vote his mind. Rosewood has not borne its

burden of coming forward 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 third

2

point by failing to assert it before the Board in its exceptions 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

isolated to show a general atmosphere of fear and that the union

representative at the meeting had responded appropriately to neutralize the

aggressive Rochelle. Significantly, it is Karen Crawford's affidavit which

reports the union representative's corrective response (i.e., that Crawford

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

threats 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 solicit

signatures on union cards, the employees' actions are imputable to the

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 that

Rochelle was authorized to speak for the union, since the union

representative corrected Rochelle's statement that Crawford had to sign a

union card. See generally Millard Processing Servs., Inc., 2 F.3d at 262

(third party's actions attributable to union only if union leads others to

believe third party is union's agent). 

Third, we can give no weight at all to Rosewood's complaint of

"harassing" visits by union representatives, since the only evidence on the

issue is one affidavit reporting two very ordinary and proper calls by

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
-8-

aside the election for improper pre-election conduct. 

II.

Rosewood contends that the Board agent compromised the neutrality of

the election by refusing permission for three employees to vote outside the

assigned voting hours in order to attend a funeral, while permitting

another employee to vote early in order to attend a funeral.

The Board must set aside an election if its agent has indeed

compromised the neutrality of the election. Nabisco, 738 F.2d at 958.

"[T]he Board is responsible for assuring properly conducted elections and

its role in the conduct of elections must not be open to question." Kerona

Plastics Extrusion Co., 196 N.L.R.B. 1120 (1972) (quoting New York

Telephone Co., 109 N.L.R.B. 788, 790 (1954)). However, the Board has

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 Vista

Disposal Co., 307 N.L.R.B. 531 (1992). There, the Board held:

[A]n employee who arrives at the polling place after the

designated polling period ends shall not be entitled to have

his or her vote counted, in the absence of extraordinary

circumstances, unless the parties agree not to challenge the

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 certification proceeding the Board relied on the distinction

that those employees who were not permitted to vote did not present

themselves at the polls, whereas the one who was allowed to vote early

asked to do so in person. 315 N.L.R.B. at 746-47. The Board also observed

that the Rosewood representative
-9-

asked only a vague question about whether the three employees could vote

outside the voting hours, without giving any concrete indication about when

the three could be there. Id.

Rosewood argues that the distinction between the employee who

presented herself at the polls and the three who did not is unfair, because

the Board agent's announced refusal to accommodate the three caused them

not to appear. However, the conversation about the three employees

happened in the morning, and the same Rosewood agent who was party to that

conversation later agreed to let Bridgette Hayes vote before the polls

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, according 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.