                                 ___________

                                 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.




     *The HONORABLE RICHARD H. KYLE, United States District
     Judge for the District of Minnesota, sitting by
     designation.
     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




                                     -2-
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.




                                           -3-
     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,1 the union brought




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




                                     -5-
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




                                     -6-
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




      2
       The Board also points out that Rosewood waived this third
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-
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




                                       -8-
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.




                                         -9-
