                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1623
                                    ___________

National Labor Relations Board,          *
                                         *
      Petitioner,                        *
                                         * Application for Enforcement
             v.                          * of an Order of the National
                                         * Labor Relations Board.
Davenport Lutheran Home,                 *
                                         *
      Respondent.                        *
                                    ___________

                              Submitted: January 10, 2001

                                   Filed: March 27, 2001
                                    ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and DOTY,1
      District Judge.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      After its full-time and regular part-time registered nurses and licensed practical
nurses voted to join the Service Employees International Union, Local 73, AFL-CIO,
Davenport Lutheran Home filed objections with the National Labor Relations Board
(NLRB), contending that the election was improperly conducted. The NLRB
considered these objections, but rejected them because it felt that they were not

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
sufficiently supported. Davenport, however, continued to protest the election and
refused to engage in any bargaining with the union. This recalcitrance eventually led
the NLRB to issue an order, finding that Davenport's refusal to bargain constituted an
unfair labor practice, see 29 U.S.C. § 158(a)(1), § 158(a)(5), and requiring Davenport
to bargain with the union.

      The NLRB petitioned to enforce its order and we grant the petition.

                                             I.
        Davenport argues that the NLRB erred when it allowed the union to file a second
petition for representation after the union had withdrawn its first petition on the day
before a pre-election hearing with the NLRB. Davenport maintains that the union acted
in bad faith because it withdrew its first petition even though it clearly had an ongoing
interest in seeking representation, as evinced by its second petition filed only a day
after its first petition was withdrawn. Davenport therefore insists that the NLRB should
have barred the union from filing a second petition by dismissing the union's first
petition with prejudice.

       Representation elections are not to be set aside lightly, and we must determine
in our review whether the NLRB acted reasonably within the " 'wide degree of
discretion,' " Millard Processing Services, Inc. v. NLRB, 2 F.3d 258, 261 (8th Cir.
1993), cert. denied, 510 U.S. 1092 (1994), quoting NLRB v. A. J. Tower Co., 329 U.S.
324, 330 (1946), entrusted to it by Congress regarding representation matters. We will
enforce the order of the NLRB if we find that it correctly applied the law and if
substantial evidence in the record supports its findings. See Deffenbaugh Industries,
Inc. v. NLRB, 122 F.3d 582, 586 (8th Cir. 1997).

       To show that the NLRB should not have allowed the union to file a second
petition, Davenport refers us to § 11110.1 and § 11114.1 of the NLRB's case-handling
manual, which, it contends, required the NLRB to dismiss the union's first petition with

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prejudice. Davenport's argument is entirely without merit. The first cited section
allows the NLRB to dismiss a petition with prejudice when a petitioner seeks to use
striking or picketing as a substitute for holding an election, and the other section applies
only when a petitioner requests a withdrawal after the completion of a pre-election
hearing or a stipulation between the parties. These conditions, of course, are not
present in the instant case.

       Guidance on whether the NLRB ought to allow a union to withdraw a petition
for representation is provided instead by § 11112 of the NLRB's case-handling manual,
which recommends that all requests for withdrawal received prior to the completion of
a pre-election hearing or approval of an election agreement be granted without
prejudice. The NLRB thus was acting fully within its discretion when it allowed the
union to file a second petition after the union withdrew the first one.

                                            II.
       Davenport also argues that the NLRB should have granted it an evidentiary
hearing after the election to determine if the election was fairly conducted. Davenport
contends that the election was flawed because some of its charge nurses, acting in a
supervisory role, campaigned during the election process in support of the union.
Because the NLRB denied Davenport's request for a hearing to investigate this
allegation, Davenport maintains that its due process rights were violated and that the
NLRB abused its discretion.

       We review de novo the NLRB's denial of a request for a hearing after an
election. See Overnite Transportation Co. v. NLRB, 105 F.3d 1241, 1244 (8th Cir.
1997). "To be entitled to a hearing, the requesting party must raise substantial or
material issues which, if proved, would warrant setting aside the election,"
Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 571 F.2d 432, 434 (8th Cir.
1978); see also Rosewood Care Center of Joliet, Inc. v. NLRB, 83 F.3d 1028, 1031
(8th Cir. 1996). The NLRB rejected Davenport's request for a hearing after its Acting

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Regional Director found that Davenport failed to allege any facts that would have
required the election to be vacated.

       We think that this ruling was correct. In its request to the NLRB for a hearing,
Davenport alleged that some of its charge nurses engaged in pro-union supervisory
activity during the election. For example, Davenport maintained that its charge nurses
expressed their preference for the union to other nurses and were actively involved in
the signing of authorization cards. But Davenport was not entitled to a hearing on the
basis of these allegations because, even if they were true, they do not establish that the
election was improperly conducted. "A union election is not per se invalid simply
because there is evidence of pro-union supervisory activity," Wright Memorial Hospital
v. NLRB, 771 F.2d 400, 404 (8th Cir. 1985). We will overturn an election only if the
supervisory activity causes the employees to believe mistakenly that their employer
favors the union or leads the employees to vote for the union because they fear future
retaliation from their supervisors. See NLRB v. Wehrenberg Theatres, Inc., 690 F.2d
159, 162 (8th Cir. 1982) (per curiam).

       There is no claim here that the supervisory activity caused employees to believe
that Davenport supported the union. Nor did Davenport produce any evidence tending
to show that its employees voted for the union because they were afraid of reprisals by
the charge nurses. Davenport did not even assert that its charge nurses were in
positions of sufficient authority to reward or punish other employees for their voting.
Because there is no allegation that, if proved, would require a holding that the election
was contaminated by supervisory coercion or manipulation, Davenport's challenge to
the election could not have succeeded in any case. See Wright Memorial, 771 F.2d at
404; see also NLRB v. Color Art, Inc., 932 F.2d 723, 724-27 (8th Cir. 1991). That
being so, Davenport has not established that it was entitled to a hearing.

      Davenport also contends that it should have been given a hearing because it was
unable to obtain, on its own, the evidence that it needed to prove its case. We do not

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think, however, that Davenport's lack of proof entitled it to a hearing. As we have said,
the NLRB is not obligated to grant Davenport a hearing unless its allegations, if proved,
would require the election to be set aside, and Davenport is not entitled to a hearing to
engage in a fishing expedition for possible election improprieties, see Natter
Manufacturing Corp. v. NLRB, 580 F.2d 948, 952 n.4 (9th Cir. 1978), cert. denied,
439 U.S. 1128 (1979). Because Davenport could not have prevailed even if its
allegations were assumed to be true, we hold that the NLRB did not err in denying
Davenport's request for a hearing after the election. See Bauer Welding and Metal
Fabricators, Inc. v. NLRB, 676 F.2d 314, 321 (8th Cir. 1982).

                                        III.
      For the reasons indicated, we grant the NLRB's petition to enforce its order.



      A true copy.

             Attest:

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




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