204 F.3d 1163 (D.C. Cir. 2000)
North of Market Senior Services, Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 99-1178
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 28, 2000Decided March 10, 2000

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Paul B. Johnson argued the cause and filed the briefs for  petitioner.
Sonya Spielberg, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Linda R. Sher, Associate General Counsel, and  Aileen A. Armstrong, Deputy Associate General Counsel.
Peter D. Winkler, Supervisory Attorney, entered an appearance.
Before:  Edwards, Chief Judge, Ginsburg, Circuit Judge,  and Buckley, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
The petitioner in this case, North of  Market Senior Services ("North of Market"), a medical care  provider for low-income senior citizens, challenges the National Labor Relations Board's ("Board" or "NLRB") order  requiring it to bargain with the Service Employees International Union, Local 790 ("Union").  Following a representation election held on January 6, 1998, the Union was certified  on September 28, 1998, as the exclusive bargaining agent for  a unit of employees at North of Market.  The employer's  objections to the election were considered, without a hearing,  and overruled by the Board's Regional Director in a written  Report that was subsequently adopted by a three-member  panel of the Board, over one dissent.  Board Member Peter  Hurtgen dissented from the Board's failure to provide a  hearing on two of the objections raised by North of Market.  North of Market then refused to bargain, prompting the  issuance of an unfair labor practice complaint by the Board's  General Counsel.  On Motion for Summary Judgment, a  three-member panel of the Board found that North of Market  had unlawfully refused to bargain, in violation of sections  8(a)(5) and 8(a)(1) of the National Labor Relations Act, and  ordered the employer to bargain with the Union as the  employees' exclusive representative.


2
The Board now seeks enforcement of its order.  North of  Market, in turn, argues that certain impermissible actions of  the Board's agent who conducted the election and Union  representatives who were present during the balloting process so tainted the election procedure that the results should  be set aside or, at a minimum, the case should be remanded  for a hearing on the employer's objections.


3
On the morning of the election, the Board agent who  conducted the election sent Union agents into North of Market's facilities to tell employees that they could vote between  11:00 a.m. and 1:00 p.m.  For approximately half an hour, the  Union agents walked through the employer's facilities, telling  employees that they had been sent by the Board to tell them  when the polls were open.  The Union agents even went so  far as to walk into private medical examination rooms where  patients were being examined.  As the Union agents talked  with employees on the employer's premises, they openly  rejected a manager's assertion that employees needed to take  their lunch break to vote.  The manager who accompanied  the Union agents filed a declaration saying that she was  "powerless to stop this rampage through [the employer's]  facility or to counter what the union agents were doing or  saying."  Decl. of Gloria Valoris, reprinted in Deferred Appendix ("D.A.") 85.


4
North of Market contends that the election should be  invalidated, because the disputed conduct impugned the integrity of the election and interfered with the employees' free  and uncoerced choice in the election.  North of Market  argues, in the alternative, that, at the very least, the Board  erred in denying it a hearing on its objections.  We agree. When a party objecting to an election presents specific,  prima facie evidence that an election is invalid, the Board is  required to hold a hearing.  See 29 C.F.R.      102.69(d) (1999);Swing Staging, Inc. v. NLRB, 994 F.2d 859, 862 (D.C. Cir.  1993).  North of Market has presented such evidence in this  case.  Thus, the petition for review is granted in part and the  case is remanded.  On remand, the Board must either invalidate the election results and schedule a new election or hold a  hearing on the objections raised by North of Market to  determine whether to hold a new election.

I. Background

5
In the fall of 1997, the Union began a campaign to organize  the employees of North of Market's San Francisco facility. On November 24, 1997, the Union filed a petition to represent  the employees of that facility.  The election was set for  January 6, 1998.  North of Market complains about a number of different incidents surrounding the election.  However,  only two charges raised by North of Market--the claims that  the actions of the Board agent and Union representatives  destroyed the integrity of the election and interfered with  free and uncoerced voting--warrant our attention.


6
On the morning of the election, Board Agent Wayne Chin  held a pre-election conference with Gloria Valoris, the Executive Director of North of Market, and Union organizers Jen  Lai and Louisa Blue.  The description of the events that  follows is gleaned entirely from Gloria Valoris' perspective, as  her affidavit and declaration are the only evidence in the  record as to what happened that morning.  According to Ms.  Valoris, Jen Lai told Mr. Chin that she had heard that  supervisors were telling employees that they could only vote  on their lunch hour between 12:00 p.m. and 1:00 p.m.  If this  was true, it was wrong, because the polls were scheduled to  be open from 11:00 a.m. to 1:00 p.m.  Ms. Valoris asserted  that it was not true.  She said that employees had been told  that they had to vote during their lunch break, but that they  could take their lunch hour any time between 11:00 a.m. and  1:00 p.m.  At this point, with the polls opening in less than  half an hour, Mr. Chin made a poor judgment call.


7
Mr. Chin decided that the employees should be informed  about the correct voting time.  At first he considered sending  Ms. Valoris into the facility to deliver the message to the  employees.  Then he changed his mind and told her that she  should have a non-supervisor make the announcement.  He  changed his mind again and settled on a final course of action:"He ... said that the two union agents should make the  announcement to employees that they could vote any time  between 11 and 1."  Aff. of Gloria Valoris, reprinted in D.A.  90-91.  Ms. Valoris states that it was her "impression that  [she] was to just escort them through the office to show them  where employees were working."  Id. at 90.


8
The Union agents apparently were not shy in carrying out  their assignment:  Wearing their Union insignia in full view,  they patted employees on the arm or back, shook their hands  like good buddies, and told them that they had been sent by the NLRB to say that employees could vote any time between  11 and 1.  The Union agents added that employees did not  need to take their lunch break to vote.  This was contrary to  Ms. Valoris' view, and she followed the Union agents around  telling employees that they could take their lunch any time  between 11 and 1, but that they did have to take their lunch  to vote.  The Union agents, however, frustrated her efforts to  get that message across.  "Whenever I would make that  statement," she said, "the union agents would contradict my  instructions, telling employees that they had been sent by the  Board agent to tell them that they could vote whenever they  wanted and it did not have to be on their lunch hour."  Decl.  of Gloria Valoris, reprinted in D.A. 85.  All of this took place  from approximately 10:50 a.m. until 11:15 a.m., fifteen minutes into the election.


9
During this time, the Union agents also walked into patient  examination rooms, delivering their message to the employees  there.  According to Ms. Valoris, "[t]hey barged into exam  rooms unannounced and without any permission from me."Id.  Ms. Valoris says that elderly patients were being treated  in these rooms and that some of them were in various states  of undress.  Ms. Valoris states that she "was powerless to  stop this rampage through our facility or to counter what the  union agents were doing and saying, particularly in light of  their repeated statement to employees that they had been  sent by the NLRB."  Id.  The election otherwise continued  as planned.


10
The Union won by a vote of 15 to 11, and North of Market  filed timely objections to the election.  The Regional Director  investigated, but held no hearing, and recommended overruling the objections.  The Board, with one member dissenting,  adopted the Regional Director's findings and recommendations.  North of Market Senior Servs. Inc., Case No. 20-RC17350 (Sept. 28, 1998).  The dissenting member believed that  the conduct described above warranted a hearing.  Id. at 2  n.2.  The Union was certified, but North of Market, in order  to obtain judicial review of the decision to certify the Union,  refused to bargain.  An unfair labor complaint was issued  against North of Market.  The Board, on a Motion for Summary Judgment, held that North of Market violated 29  U.S.C.      158(a)(1) and (5) and ordered North of Market to  bargain with the Union.  North of Market Senior Servs., Inc.,  327 N.L.R.B. No. 197 (Mar. 24, 1999).  This appeal followed.

III. Discussion

11
The Board's discretion to assess the propriety and results  of representation elections is broad.  Thus, it is well established that a court will overturn a Board decision to certify an  election in only the rarest of circumstances.  See E.N.  Bisso  & Son, Inc. v. NLRB, 84 F.3d 1443, 1445 (D.C. Cir. 1996).  A  party seeking to overturn an election bears a heavy burden of  showing that the election is invalid.  See Swing Staging, Inc.  v. NLRB, 994 F.2d 859, 861 (D.C. Cir. 1993).  But a party  who "raises substantial and material issues of fact sufficient  to support a prima facie showing of objectionable conduct," is  entitled to an evidentiary hearing.  Id. (citing 29 C.F.R.       102.69(d) (1999)).  This evidence cannot be conclusory but  "must point to specific events and specific people."  Id.  (citations and internal quotation marks omitted).


12
North of Market presented such specific evidence here, yet  the Board in this case declined to hold a hearing.  North of  Market filed six objections with the Board and supported  those objections with specific evidence of wrong-doing. Among the objections, North of Market argued that the  Board agent's decision to send the Union agents into the  employer's facility and the Union agents' subsequent behavior  impugned the integrity of the election and interfered with the  employees' free and uncoerced voting.  And while we agree  with the Board's decision to reject most of North of Market's  objections, these two objections raise substantial issues that  should have been addressed by the Board.

A. The Integrity of the Election

13
The Board attempts, as near as possible, to hold elections  in a laboratory condition.  See NLRB v. Schwartz Bros., Inc.,  475 F.2d 926, 930 (D.C. Cir. 1973);  General Shoe Corp., 77  N.L.R.B. 124, 127 (1948).  This requires the Board and its  agents to maintain an appearance of neutrality in conducting fair and impartial elections.  See, e.g., Sioux Products, Inc. v.  NLRB, 703 F.2d 1010, 1013-14 (7th Cir. 1983).  Obviously,  Board agents in charge of elections have a responsibility to  uphold this standard.  Thus, if a Board agent acts in a way to  "destroy confidence in the Board's election process, or [in a  way that] could reasonably be interpreted as impugning the  election standards," the election must be set aside.  Id. at  1013 (citations and internal quotation marks omitted).


14
A Board agent can destroy confidence in the election in a  number of different ways:  by creating questions about the  integrity of the ballot box, see Austill Waxed Paper Co., 169  N.L.R.B. 1109, 1109-1110 (1968) (invalidating an election,  because the ballot box was left unsealed and unattended for  from two to five minutes);  by fraternizing with one party to  the election, see Athbro Precision Eng'g Corp., 166 N.L.R.B.  966, 966 (1967), vacated sub nom. Electrical Workers IUE v.  NLRB, 67 L.R.R.M. 2361 (D.D.C. 1968), acq. 171 N.L.R.B. 21  (1968), enf'd. 423 F.2d 573 (1st Cir. 1970) (invalidating an  election, because Board agent was seen having a beer with  Union agent between polling periods);  or by delegating nonminor official election duties to a party, see Alco Iron & Metal  Co., 269 N.L.R.B. 590, 591-92 (1984) (invalidating election,  because Board agent delegated task of translating voting  instructions to Union observer).  It is this last cited conduct  that is at issue here.


15
The Board agent in this case delegated to Union officials  the task of telling employees when they could vote in the  representation election.  In other words, there is no doubt  that an official election task was impermissibly assigned to a  party.  The question here is whether this delegation compromised the integrity of the election.  The Board traditionally  has considered such questions on a case-by-case basis, weighing the importance of the delegated task, the manner in which  it was assigned and performed, and its likely effect on the  required appearance of neutrality.  For example, in Alco, the  Board determined that the integrity of the election was  compromised when the Board agent delegated the task of  translating ballots to the Union's observer.  269 N.L.R.B. at  591-92.  The Board stated that "[t]he delegation of an important part of the election process to the Petitioner's observer  conveyed the impression that the Petitioner, and not the  Board, was responsible for running the election."  Id.  This  conduct, the Board held, was "incompatible with [its] responsibility for assuring properly conducted elections," and necessitated overturning the election.  Id. at 592.  However, in  San Francisco Sausage Co., 291 N.L.R.B. 384 (1988), the  integrity of the election was found not to have been compromised when the Board agent delegated the task of announcing, over an intercom, that voting had begun.  That, the  Board held, "was a delegation of a minor task" that was  performed in an innocuous way and so did not necessitate  overturning the election.  San Francisco Sausage, 291  N.L.R.B. at 384 n.1.


16
Here, the Board agent's delegation raised a serious threat  to the integrity of the election, because it resulted in Union  agents tromping through the employer's facility, on the direct  authority of an official from the NLRB, during the precious  moments before the polls opened.  There is no doubt that  simply delegating the task of telling employees when to vote  does not impugn the integrity of an election.  See, e.g., San  Francisco Sausage, 291 N.L.R.B. at 384 n.1.  However, unlike San Francisco Sausage, where the party made only a  brief announcement over an intercom, the Union agents in  this case, in full Union regalia, announced that they were sent  by the NLRB, then personally and warmly greeted each  employee and told them when they could vote.  And the  Union agents added insult to injury by openly refuting a  management official's instruction regarding employees' lunch  breaks.  It was strange at best for Union officials to be  wandering through the employer's work areas, with no assent  from the employer and on the proclaimed authority of the  NLRB.  This certainly may have given the impression that  the Board had ceded significant authority to the Union over  the conduct of the election.


17
In short, North of Market has presented a compelling case,  and certainly a prima facie one, that the integrity of the  election was impugned when the Board agent sent Union  officials into the employer's facility to tell employees when to vote.  And the vigor with which the Union agents carried out  the task, flaunting their new found "authority" to speak for  the Board, while openly disagreeing with a management  official, made the situation even worse.  The Board erred in  denying North of Market a hearing on this objection.


18
B.Interference with Free and Uncoerced Voting


19
Likewise, the Board erred in summarily rejecting the objection that the Union agents' tour through the facilities and  open disagreements with a management official necessitated  invalidating the election.  An election is invalid if the actions  of a party to the election "reasonably tend[ed] to interfere  with the employees' free and uncoerced choice in the election."  Family Serv. Agency v. NLRB, 163 F.3d 1369, 1383  (D.C. Cir. 1999) (citations and internal quotation marks omitted).  The employees' free and uncoerced choice in an election  may be interfered with by actions that create the impression  that an employer is not in control of its own facilities and is  not able to stand up to the Union.  See Phillips Chrysler  Plymouth, Inc., 304 N.L.R.B. 16 (1991).


20
In Phillips, the Board invalidated an election where Union  agents refused to leave the employer's property and engaged  in a shouting match with the employer in front of employees  an hour before the polls opened.  Because this "direct challenge to the Employer's assertion of its property rights" and  the message that "the Employer was powerless to protect its  own legal rights in a confrontation with the Union" could not  have been lost on the employees, the Board held that the  Union's conduct interfered with the employees' free and  uncoerced choice.  Phillips Chrysler, 304 N.L.R.B. at 16.


21
Similarly, in this case, North of Market has raised significant issues regarding the Union's improper invasion of its  property and the resulting impression that the employer was  helpless to control the situation.  First, not only did the  Union agents walk around the employer's facility without the  employer's permission, but they walked into private examination rooms where patients were in a state of undress.  The  Union agents' unhindered access to the facilities and the  examining rooms surely could have been seen as a challenge to North of Market's property rights.  Second, the Union  agents repeatedly disagreed with Ms. Valoris:  She told employees that they had to vote on their lunch break, but the  Union agents told employees that they did not have to vote  during their lunch hour.  This disagreement could well have  given employees the impression that North of Market was  unable to protect its rights in a dispute with the Union.  This  is especially true given that the Union agents purported to be  speaking for the Board when they disagreed with the employer.


22
Moreover, we scrutinize this misconduct more closely both  because it took place on the day of the election, see Family  Serv. Agency, 163 F.3d at 1383 (noting that argument between employer and union did not necessitate invalidating the  election in part because election was at least a month away  from the time the argument occurred);  NLRB v. Earle  Indus., Inc., 999 F.2d 1268, 1274 (8th Cir. 1993) (holding that  conduct did not violate Phillips Chrysler, in part because it  took place weeks before the election), and because the Union's margin of victory was narrow, see C.J. Krehbiel Co. v.  NLRB, 844 F.2d 880, 884 (D.C. Cir. 1988) (carefully scrutinizing the election, because the vote was close);  United Steel  Workers v. NLRB, 496 F.2d 1342, 1347 n. 11 (5th Cir. 1974)  ("If the vote margin in a representational election is very  narrow, minor violations should be more closely scrutinized.").


23
In light of the record at hand and considering the principles underlying Phillips Chrysler, we conclude that North of  Market was at least entitled to a hearing on this issue.Accordingly, the case will be remanded for further consideration by the Board, either to conduct of a new election or for  a hearing on the employer's objections.  If a hearing is held,  the Board must specifically address the application of Phillips  Chrysler to this case.

III. Conclusion

24
For the reasons given above, the Board's request for  enforcement is denied, the petition for review is granted in  part, and the case is remanded to the Board.  On remand, the Board may conclude that the present record is sufficient  without more to show that the integrity of the election was  compromised and/or that the employees' free and uncoerced  choice was impaired so as to justify a new election.  At a  minimum, however, the Board must conduct a hearing to  address these two charges raised by the employer.

