                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1768
                                    ___________

National Labor Relations Board,          *
                                         *
             Petitioner,                 *
                                         * Petition for Review or Enforcement
      v.                                 * of an Order of the National
                                         * Labor Relations Board.
Superior of Missouri, Inc.,              *
                                         *
             Respondent.                 *
                                    ___________

                              Submitted: September 8, 2003

                                   Filed: December 9, 2003
                                    ___________

Before LOKEN, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

        On June 19, 1998, a National Labor Relations Board agent overslept, forcing
the postponement of a 6:00 a.m. election to determine whether Teamsters Local
Union No. 682 would represent the drivers and helpers employed by Superior of
Missouri, Inc. The election was held one week later, and the Union prevailed. The
Board certified the Union, rejecting Superior’s objections to the election without
holding an evidentiary hearing. Superior refused to bargain with the certified Union
and petitioned this court for review of the resulting unfair labor practice order, which
is the proper way to obtain judicial review of an otherwise unappealable certification
order. See Boire v. Greyhound Corp., 376 U.S. 473, 477 (1964). We denied
enforcement of the Board’s unfair labor practice order and remanded, concluding that
the Board erred in overruling Superior’s objections to the election without a hearing.
NLRB v. Superior of Mo., Inc., 233 F.3d 547 (8th Cir. 2000).

       On remand, following an evidentiary hearing, the Board again rejected
Superior’s objections to the election and reaffirmed its order that Superior violated
29 U.S.C. §§ 158(a)(1) and (5) by refusing to bargain with the certified Union.
Superior of Mo., Inc., 338 N.L.R.B. No. 69 (Nov. 20, 2002). Superior again seeks
judicial review, arguing that the Board erred in certifying the Union because the
election was fatally flawed by the Board agent’s misconduct. After careful review of
the hearing record, we conclude that the Board’s findings and conclusions upholding
the election are supported by substantial evidence on the record as a whole.
Therefore, we enforce the Board's unfair labor practice order.

                    I. The Results of the Evidentiary Hearing

       A party that timely objects to an election is entitled to an evidentiary hearing
if it “makes a prima facie showing of substantial and material facts which, if true,
warrant setting aside the election.” Rosewood Care Ctr. of Joliet, Inc. v. NLRB, 83
F.3d 1028, 1031 (8th Cir. 1996). In the first appeal, we concluded that Superior had
made such a showing for three reasons. First, Superior presented evidence that
employees who gathered to vote in the first election were angry when it was
cancelled, and a rumor spread that Superior had paid the Board not to show up.
Superior alleged that, despite this prejudicial atmosphere, the Board agent unilaterally
rescheduled the election without measuring the impact of his blunder and without
consulting the parties who had agreed to the June 19 scheduling. Second, the record
contained no evidence that the Union had attempted to explain why the June 19
election was canceled, raising the possibility that the Union had fueled the rumor or
had at least taken advantage of its prejudicial impact on Superior. Third, Superior
presented employee affidavits stating that some number of bargaining unit employees

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changed their vote after the first election was cancelled. See 233 F.3d at 552. We
now review how these issues played out at the evidentiary hearing on remand.

       1. The hearing established that the Board agent did not unilaterally reschedule
the election. On June 19, the agent telephoned Superior some fifty minutes into the
scheduled election period to explain that he had overslept due to a power outage. The
agent asked Superior’s General Manager, Kenneth McAfee, to recall those employees
who had left the election site so the election could go forward that day. McAfee
refused. The Board agent then telephoned Superior’s attorney, apologized for
oversleeping, and suggested the election be held one week later. After consulting
with his client, counsel called the Board agent and agreed to the June 26 date. The
Board agent then posted new election notices that afternoon, without objection by
Superior. Three days later, Superior distributed a letter to employees explaining what
had happened, apologizing for any inconvenience, and encouraging all employees to
vote in the rescheduled election.1

      2. At the hearing Union representative Timothy G. Ryan testified that, on the
morning of June 19, he heard someone in a group of about fifteen employees say that
Superior had bought off the Board. Ryan testified:


      1
        The same attorneys, Michael Linihan and Stephen Maule, represented Superior
during the election and in both appeals to this court. The hearing testimony
established that Linihan and Maule participated in Superior’s decision to accept June
26 as the date of the rescheduled election. Thus, these attorneys misrepresented a
material fact when they stated in their brief in the prior appeal that the election was
“unilaterally rescheduled by the Board.” At oral argument, counsel suggested that
Superior had no alternative but to accept the new date suggested by the Board agent.
Even if true, that does not excuse counsel’s material misrepresentation to this court.
However, the Board has not moved for sanctions on the ground that counsel procured
an evidentiary hearing with a knowing misrepresentation of fact. We condemn
counsel’s conduct but elect in this instance not to pursue the question of sanctions sua
sponte. See generally Chambers v. NASCO, Inc. 501 U.S. 32, 44 (1991).

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      I stopped dead in my track[s] as I heard it and I said wait a minute, it is
      unheard of. I told you from the beginning that the National Labor
      Relation[s] Board is a neutral party in this election, the National Labor
      Relation[s] Board cannot be bought off. It is unfortunate that, through
      an act of God, the storm knocked out this gentleman’s [the Board
      agent’s] electricity, putting him in the position of his alarm not going
      off. Guys, we will have this election just as soon as possible. Please get
      it out of your mind.

Another employee confirmed that this conversation took place. Thus, the Union did
not fuel the employee rumor that Superior was responsible for cancelling the election,
nor is there evidence the Union attempted to take advantage of this rumor in the
rescheduled election. Superior complains that the Union and the Board agent left
Superior with the task of explaining to employees why the election had been
rescheduled. But there is no evidence that Superior asked the Board agent to
supplement his standard notice of the rescheduled election with an explanation or
asked the Union for additional help in combating the alleged rumor.

       3. At the hearing, Superior failed to prove either that eligible employees were
disenfranchised by the election rescheduling, or that the Board agent’s oversleeping
influenced the employees who voted at the rescheduled election. The employees
were given one week’s notice of the rescheduled election. At the June 26 election,
63 of 69 eligible employees voted; 41 voted in favor of the Union, 20 voted against
the Union, and two ballots were challenged. At the evidentiary hearing, one Superior
driver testified that he was unhappy about the delay on June 19 but did not testify that
he blamed Superior or altered his vote. Another driver testified that she heard an
employee speculate on the morning of June 19 that Superior may have paid the Board
not to show. And General Manager McAfee testified that, on June 19, he was
concerned that angry employees would blame Superior for the failure of the Board
agent to appear that morning. But there was no testimony supporting Superior’s pre-



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hearing allegation that employees changed their votes to support the Union as a result
of the election rescheduling.

                                    II. Discussion

       On appeal, Superior challenges the Board’s decision to uphold the election on
two distinct grounds. In considering these election issues, it is important to identify
the standard applied by the Board as well as our own standard of judicial review.

        First, Superior argues that the Board agent’s misconduct disenfranchised
voters. This issue arises most commonly when a Board agent alters the time period
of a scheduled election, for example, by opening the polls late or closing them early.
In such cases, the Board has often concluded that it must set aside the election
because it cannot determine how many employees may have been excluded or
otherwise affected. See Nyack Hosp., 238 N.L.R.B. 257 (1978); B&B Better Baked
Foods, Inc., 208 N.L.R.B. 493 (1974); Kerona Plastics Extrusion Co., 196 N.L.R.B.
1120 (1972). Superior attempts to come within the purview of these cases by labeling
the election rescheduling as a one hundred sixty-eight hour delay. But like the Board,
we conclude that these cases are “inapposite.” The Board agent did not unexpectedly
reduce the employees’ opportunity to vote. The employees were given ample notice
of the rescheduled election, and the vast majority of eligible employees voted on June
26. There was simply no evidence at the hearing that any employee was
disenfranchised by the Board agent’s oversleeping.

       Second, Superior argues that the Board agent’s misconduct destroyed the
“laboratory conditions” essential for a fair election. In considering objections of this
kind, the Board focuses primarily on whether an agent’s conduct was consistent with
the impartiality required for the Board to conduct a fair election:




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      The Board in conducting representation elections must maintain and
      protect the integrity and neutrality of its procedures. The commission
      of an act by a Board Agent conducting an election which tends to
      destroy confidence in the Board’s election process, or which could
      reasonably be interpreted as impugning the election standards we seek
      to maintain, is a sufficient basis for setting aside that election.

Athbro Precision Eng’g Corp., 166 N.L.R.B. 966, 966 (1967) (subsequent history
omitted). We review the Board’s application of that standard in a particular case for
abuse of “the wide degree of discretion vested in it by Congress regarding
representation matters.” Millard Processing Servs. v. NLRB, 2 F.3d 258, 261 (8th
Cir. 1993) (quotation omitted), cert. denied, 510 U.S. 1092 (1994); see also Sioux
Prods., Inc. v. NLRB, 703 F.2d 1010, 1013-16 (7th Cir. 1983); NLRB v. Fenway
Cambridge Motor Hotel, 601 F.2d 33, 36-37 (1st Cir. 1979).

        In this case, the Board agent did nothing inconsistent with the Board’s duty of
impartiality when he overslept and then negotiated a new election date with the
parties. Superior argues that the Board agent’s failure to explain to employees that
the Board caused the first election to be canceled was both unfair to Superior and an
impermissible delegation of “nonminor official election duties.” North of Mkt.
Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1168 (D.C. Cir. 2000). We disagree.
First, the Board agent had no affirmative duty under the Board’s election procedures
to provide such an explanation. A recent Board decision noted that “it would be
preferable for Regional Offices to include in any notice of rescheduled election a
statement that the election has been rescheduled for administrative reasons beyond
the control of the employer or the union.” City Wide Insulation of Madison, Inc., 338
N.L.R.B. No. 108 (Feb. 7, 2003). We agree with the admonition, but it does not
without more establish an abuse of discretion by the Board in this case. In North of
Market, the Board agent delegated an election duty to the union in a manner that
compromised the integrity of the election because it “may have given the impression
that the Board had ceded significant authority to the Union over the conduct of the

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election.” 204 F.3d at 1169. By contrast, the Board agent’s conduct in this case did
not cast doubt on either the Board’s neutrality or the integrity of the election.

       Second, like the ALJ, we find Superior’s claim of resulting unfairness to be
substantially overblown. In the week between June 19 and June 26, Superior never
asked the Board agent to do anything after he posted the notice of the rescheduled
election. Rather than urge the Board or the Union to explain why the election had
been rescheduled, Superior distributed a letter to employees explaining the situation,
assuring them it “certainly was not due to any fault of your company,” and
encouraging them to vote on June 26. Absent evidence of Union misconduct, this
looks like an employer’s tactical decision in a competitive election environment.

       Superior nonetheless argues that its evidence of employee anger on June 19 and
of an employee rumor that Superior had paid the Board not to hold the election are
sufficient reason to set aside the election. But at the hearing, Superior introduced
minimal evidence of employee displeasure on June 19, and no evidence suggesting
that any voter anger on June 19 carried over to June 26 and affected the election. The
Board’s administrative law judge found that Superior failed to call witnesses who
were directly affected and part of the potential bargaining unit, that the rumor was not
attributable to any actions of the Union, and that “the impact of the ‘rumor’ was
negligible at best.” These findings are supported by substantial evidence. Based on
these findings, the Board concluded that the employee rumor did not warrant setting
aside the election, like the rumor in Alladin Plastics, Inc., 182 N.L.R.B. 64 (1970).

       We agree that the facts developed at the hearing make the proven impact of the
employee rumor in this case virtually indistinguishable from that of the rumor in
Alladin Plastics. Accordingly, the Board did not abuse its discretion in declining to
set aside the election on this ground. See Deffenbaugh Indus., Inc. v. NLRB, 122
F.3d 582, 586-87 (8th Cir. 1997); Millard, 2 F.3d at 261 (the party challenging an
election must “show by specific evidence not only that improprieties occurred, but

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also that they interfered with employees’ exercise of free choice to such an extent that
they materially affected the election results”).

      For the foregoing reasons, we grant the Board’s petition to enforce.
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