                 United States Court of Appeals,

                         Eleventh Circuit.

                           No. 96-8058.

    VISITING NURSE HEALTH SYSTEM, INC. f.k.a. Visiting Nurse
Association of Metropolitan Atlanta, Inc., Petitioner—Cross-
Respondent,

                                v.

  NATIONAL LABOR RELATIONS BOARD, Respondent—Cross-Petitioner,

                                and

 United Food and Commercial Workers, Local No. 1996, Intervenor.

                          March 31, 1997.

Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
STAGG*, Senior District Judge. (No. NLRB 10-CA-27847).

     STAGG, Senior District Judge:

     In the proceedings below, the National Labor Relations Board

("NLRB" or the "Board") held that the vote of Staff Nurse Iris Mead

should not be counted in the union election and held that Visiting

Nurses Health System, Inc. ("VNHS") untimely raised the issue of

whether its staff nurses are supervisors under NLRB v. Health Care

& Retirement Corp., 511 U.S. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586

(1994). Petitioner/Cross-Respondent, VNHS, petitions for review of

the Board's decisions.    Respondent/Cross-Petitioner, the Board,

seeks enforcement of its decision that VNHS and United Food and

Commercial Worker's Local 1063 are ordered to collectively bargain.

Based on the following reasons, the Board's order is enforced.


     *
      Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
                         I. PROCEDURAL HISTORY AND FACTS

A. Procedural History

       On December 18, 1992, an election was conducted among staff

nurses at VNHS to determine whether the nurses wished to be

represented by United Food and Commercial Worker's Local Union No.

1063       (the   "Union"),   by    the    Georgia   Nurses      Association,   Inc.

("GNA"),1 or by no union at all.              The count of the vote revealed

that 43 votes were cast for the Union, one vote was cast in favor

of GNA, and 40 votes were cast in favor of having no union

representation.          Two of the votes cast were considered challenged

votes.        Staff Nurse Iris Mead's ("Mead") vote was challenged

because it was cast after the poll had closed.

       The Board's Regional Director conducted an investigation of

the challenged votes and on January 29, 1993, issued a report

finding that one of the parties, VNHS itself, unintentionally

interfered        with    Mead's    voting.     Thus,     the    Regional   Director

concluded         that    Mead's    vote   should    be    counted    because    the

unintentional            interference      constituted          an   "extraordinary

circumstance" under Monte Vista Disposal Co., 307 N.L.R.B. 531,

1992 WL 110678 (1992).         The Union filed an exception to this ruling

and a hearing was held on the matter on July 14, 1993, before an

NLRB Hearing Officer.              On August 25, 1993, the Hearing Officer

issued a report agreeing with the Regional Director's findings and

conclusions and recommended that Mead's ballot be opened and

counted.


       1
      At the time of the election, GNA was representing the staff
nurses.
       On September 8, 1993, the Union filed exceptions to this

ruling with the NLRB, and VNHS responded to the Union's exceptions.

The Board issued its decision on July 18, 1994.                    See Visiting

Nurses Association of Metropolitan Atlanta, Inc. and United Food

and Commercial Workers, Local Union No. 1063,               314 N.L.R.B. 404,

1994 WL 377055 (1994).       The Board adopted the factual findings of

the Hearing Officer.          However, the Board reached a different

conclusion ruling that Mead voted late due to her own actions

rather than due to any extraordinary circumstances.                Finding that

the election was conclusive and that the Union gained a majority of

the unit at VNHS, the Board ordered VNHS to collectively bargain

with    the   Union.       VNHS   refused    to   do   so   and,     by   way   of

correspondence to the Union, expressed three reasons for its

refusal:      (1) the Board decision was in error and therefore the

Union was not properly certified;           (2) under Health Care, the staff

nurses were supervisors and could not be the subject of an NLRB

certification;      and (3) the unit expressly excludes supervisors

such as the staff nurses, and thus, there were no employees in the

certified unit.

       On August 11, 1994, the Union filed an unfair labor practice

charge, alleging that VNHS had illegally refused to bargain with it

in violation of sections 8(a)(1) and 8(a)(5) of the National Labor

Relations     Act   (the   "Act").      General     Counsel    for    the   NLRB

subsequently filed a motion for summary judgment, which VNHS

opposed.      On December 8, 1995, the Board granted the motion for

summary judgment, finding that VNHS had illegally refused to

bargain with the Union.           See Visiting Nurse Health System, Inc.
f/k/a Visiting Nurses Association of Metropolitan Atlanta, Inc.,

319 N.L.R.B. 899, 1995 WL 732846 (1995). The Board rejected VNHS's

claim that Health Care had any affect on the proceeding, stating

that VNHS was barred from raising the issue because it was raised

untimely.     Id. at 899 n. 1.2

B. Facts Surrounding Mead's Vote

     The polls were open at VNHS's facilities for the December 18,

1992 election from 7:30 to 10:00 A.M.    On that day, Mead had to

conduct a blood sugar test on a patient and had to deliver the

blood sample to the laboratory that same morning for testing. Mead

left the patient's house at approximately 7:50 A.M., visited one or

two more patients, and drove to the laboratory to deliver the blood

sample.     Mead then drove directly from the laboratory to VNHS's

Lawrenceville, Georgia facility.   Mead testified that she arrived

in the parking lot at approximately 9:45 or 9:50 A.M.   Just as she

was entering the parking lot, Mead was paged on her pager by her

supervisor.     Mead's personal practice was to answer her page as

soon as possible.       There was not a policy in place at VNHS,

however, that required staff nurses to answer their pages as soon

as possible, nor was there any indication on Mead's pager that this

page constituted an emergency.


     2
      This court does not reach the issue of whether staff
nurses, who individually provide nursing services to patients in
their homes, are supervisors under Health Care. The court agrees
with the Board in Visiting Nurse Health System, 319 N.L.R.B. at
899 n. 1. VNHS never raised the issue of the supervisory status
of its staff nurses in the representation proceeding. Thus, VNHS
is barred from raising the issue before the Board and before this
court on appeal. See Flatbush Manor Care Center, 314 N.L.R.B.
702, 703 n. 4, 1994 WL 424153 (1994); HeartShare Human Services
of New York, 317 N.L.R.B. 611 n. 1, 1995 WL 321741 (1995).
     When Mead entered the building, she reported to her supervisor

regarding    her   page.        During    a    short      conversation    with    her

supervisor,   Mead   was    asked    if       she   had   voted,    to   which   Mead

responded that she had not.         Mead's supervisor then told Mead she

could go vote.     After this conversation, Mead went to her desk to

put her things down.        Mead's testimony shows that she may have

spoken with a few co-workers, or as the Board found, "chit-chatted"

with co-workers.     It was after this that Mead went to the polling

place to vote.     Very shortly prior to Mead's arrival at the voting

room, the ballot box had been closed and sealed.                    Although there

was a dispute about the exact time of the poll's closing3, Mead was

allowed to vote but she was told by the Board agent that her vote

would be considered a challenged vote.               Mead responded that "if it

[voting] had been important to me I would have been [t]here."

Visiting Nurses Association,             314 N.L.R.B. at 404.             Mead also

testified that voting "was not my priority of the day.                   It did not

matter a whole lot to me whether I voted or not."                  Id. at 404 n. 4.

Mead then marked her ballot and the ballot box was re-sealed.

                           II. STANDARD OF REVIEW

         Traditionally,    we    accord       considerable     deference    to    the

Board's expertise in applying the National Labor Relations Act to

the labor controversies that come before it. N.L.R.B. v. Deauville

Hotel, 751 F.2d 1562, 1567 (11th Cir.1985), citing N.L.R.B. v.

Denver Building and Construction Trades Council, 341 U.S. 675, 692,


     3
      The question of whether Mead was actually late to the poll,
or the question of how late she was, depending on who's watch
controls, is not an issue on appeal. The only issue is whether
Mead's excuse can be said to be an extraordinary circumstance.
71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951).                    "We must examine its

decisions    to    ensure     that    its   statutory      interpretation     has    a

reasonable basis in law ... and that a reasonable balance has been

struck between competing policies."               Deauville Hotel, 751 F.2d at

1567.     We are bound by the Board's findings of fact if they are

supported by substantial evidence on the record as a whole.                        See

N.L.R.B. v. Hayden Electric, Inc., 693 F.2d 1358, 1362 n. 4 (11th

Cir.1982);      Georgia Kraft Co. v. N.L.R.B., 696 F.2d 931, 936 (11th

Cir.1983).         If   the   Board    does      not    discredit    the   testimony

considered by the Hearing Officer, but rather rejects the Hearing

Officer's conclusions as to the inferences to be drawn from the

testimony, such a disagreement between the Board and the Hearing

Officer on factual inferences and legal conclusions does not

detract from the substantiality of the evidence that must support

the Board's decision.          See Georgia Kraft, 696 F.2d at 937.                 Nor

does it modify the appropriate standard of review in the appellate

court.    Id.

                                III. DISCUSSION

     The issue this court must determine is whether Mead's reasons

for arriving late to the poll on December 18, 1992, were due to

"extraordinary circumstances."

     In    Monte    Vista,    the     employees    arrived    late    to   vote    and

provided no reason for their tardiness.                 The Board in Monte Vista,

provided little guidance as to what constituted an extraordinary

circumstance.      The Board did, however, state that an extraordinary

circumstance "shall include a showing that one of the parties was

responsible     for     the   tardiness     of    the    late-arriving     voter    or
voters."   Id. at 533 n. 6.      The Board in Monte Vista, did not find

that the employees were late due to extraordinary circumstances.

See id. at 534.

       In The Glass Depot, 318 N.L.R.B. 766, 1995 WL 518710 (1995),

the Board was not required to determine whether a snow storm that

caused 4 of 19 employees to miss a vote was an extraordinary

circumstance because a representative portion of the employees

attended the vote.    The Board did say, however, that the snow storm

"may well have been" an extraordinary circumstance.         Id. at 767.

        The cases above contemplate situations beyond one's control

as constituting an extraordinary circumstance under Monte Vista.

Mead's failure to vote timely at VNHS was not due to circumstances

beyond her control.       Rather, her tardiness was due to her own

actions on that morning.         Mead could have made sure that she

arrived with plenty of time to vote despite being confronted with

minor setbacks.     Mead simply tried to accomplish too many tasks

that morning, and this caused her to arrive late to the poll.         This

court does not find that the reasons articulated on the record by

Mead   constitute    an   extraordinary   circumstance.     The    Board's

decision   is   supported   by   substantial   evidence,   and    thus,   is

entitled to enforcement.

       The order of the Board granting judgment in favor of the NLRB

is ENFORCED.    Furthermore, the order of the Board ordering VNHS to

collectively bargain with the Union is ENFORCED.
