ManorCare of Kingston PA, LLC

National Labor Relations Board - Board Decisions

Apr 29, 2014

360 N.L.R.B. 719 (N.L.R.B. 2014)

MANORCARE OF KINGSTON PA, LLC 719
360 NLRB No. 93
ManorCare of Kingston PA, LLC and Laborers In-
ternational Union of North America Local 1310,
Petitioner. Case 04–RC–109516
April 29, 2014
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on September 6, 2013, and the hearing officer’s
report recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 34 for and 32 against
the Petitioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has decided to adopt the hearing of-
ficer’s findings1 and recommendations2 only to the extent
consistent with this decision, and finds that a certification
of representative should be issued.
We disagree with the hearing officer’s recommenda-
tion to sustain Objection 2, which alleges that certain
prounion employees, who are not union agents but third
parties to the election, made election-related threats to
employees and their property that interfered with the
election. Specifically, the objection pertains to a state-
ment by employee Lucy Keating to employee Harriet
Robinson that if the Union did not get in and employees
started complaining about their working conditions, she
was going to start punching people in the face, and a
statement by employee Juanita Davis to employees Rob-
inson, Amy Kovac, and Krista Renfer that if the Union
did not get in, she would do damage to people’s cars and
cause bodily harm to employees who voted against the
Union.
The hearing officer found that both statements were
made in a casual and even light-hearted fashion. Specifi-
cally, the hearing officer found that the statement by the
diminutive Keating, who had no history of violence, to
the taller Robinson was flippantly made, and elicited a
laughing response. Similarly, the hearing officer found
that, in context, Davis’ statement to Robinson, Kovac,
and Renfer was viewed as joking in nature. However,
the hearing officer found that employee Robinson (later

1 The parties have excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have carefully
examined the record and find no basis for reversing the findings.
2 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation to overrule Employer’s Objection 3.
an Employer observer during the first session of the elec-
tion) thereafter repeated Keating’s and Davis’ statements
to additional employees. Because those additional em-
ployees were not in a position to judge how the original
statements were intended—especially with respect to the
threat to vehicles,—or to determine that Keating and
Davis would not have followed through on their
“threats,” the hearing officer sustained Objection 2 and
recommended that the election be set aside. We disagree
and overrule the objection.
The Board will not set aside an election based on third-
party threats unless the objecting party proves that the
conduct was “so aggravated as to create a general atmos-
phere of fear and reprisal rendering a free election im-
possible.” Westwood Horizons Hotel, 270 NLRB 802,
803 (1984); see also Mastec Direct TV, 356 NLRB 809,
811 (2011); Lamar Advertising of Janesville, 340 NLRB
979, 980 (2003); Cal-West Periodicals, 330 NLRB 599,
600 (2000). In assessing the seriousness of an alleged
threat, the Board considers the following factors: (1) the
nature of the threat itself; (2) whether it encompassed the
entire unit; (3) the extent of dissemination; (4) whether
the person making the threat was capable of carrying it
out, and whether it is likely that employees acted in fear
of that capability; and (5) whether the threat was made or
revived at or near the time of the election. Westwood,
supra at 803.
Applying the Westwood standard here, contrary to the
hearing officer, we find that the Employer failed to show
that the employees’ conduct created a general atmos-
phere of fear and reprisal rendering a free election im-
possible. The hearing officer determined that both com-
ments were made in a joking and casual manner. As
characterized by the hearing officer, neither one rose to
the level of objectionable third-party threats.3 The state-
ments were disseminated by other employees not in the
presence of the speakers who actually made the com-
ments and were apparently characterized out of context.
In other words, these were characterizations by those
who had not made the statements and, further, repeated
to employees who did not have the benefit of hearing
them and evaluating them personally.
Historically, the Board has been reluctant to set aside
an election where employees circulate third-party state-
ments that have been stripped of their original context.
See generally Central Photocolor Co., 195 NLRB 839,
839 (1971) (objections overruled where third party
“threats and communication of rumors of misconduct

3 At worst, the statements were no more than bravado and bluster by
nonagent employees, which the Board has recognized are likely to be
discounted by other employees. See Mastec Direct TV, above, 356
NLRB 809, 812.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD720
and predictions of Union pressure did not create a gen-
eral atmosphere of fear and reprisal”). This is such a
case. The objection should not be sustained on what es-
sentially was a version of the “game of telephone.” To
do so would open the door to objections being substanti-
ated by rumors devoid of any truth, and encourage false
attributions in order to influence election outcomes. In
the circumstances of this case, statements which were not
threats when made, did not, through the repetition by
others, become transformed into objectionable conduct.
Accordingly, as the tally of ballots shows that the Peti-
tioner has received a majority of the valid votes cast, we
shall issue the appropriate certification of representative.4

4 Contrary to his colleagues, Member Johnson would sustain Objec-
tion 2. Although a close case, the statements as disseminated were
threats to person and property. Both statements were disseminated to
other eligible voters who did not actually hear the alleged threats being
made. Furthermore, there were no countervailing circumstances that
would lend an objective observer to believe these comments were ex-
aggerated or were intended in a joking manner. More fundamentally,
whatever was actually said and in whatever manner, a significant num-
ber of employees were exposed to these threatening statements. The
appropriate standard by which the Board evaluates third-party conduct
is whether it creates a “general atmosphere of fear and reprisal render-
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Laborers International Union of North
America Local 1310, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
INCLUDED: All full-time and regular part-time
CNAs (who worked an average of four or more hours
per week during the 13 weeks preceding July 23, 2013)
employed by the Employer at its 200 Second Avenue,
Kingston, Pennsylvania facility.
EXCLUDED: All other employees, LPNs, RNs,
maintenance employees, office clerical employees,
guards and supervisors as defined in the Act.

ing a free election impossible.” Westwood Horizons Hotel, 270 NLRB
802, 803 (1984), and the hearing officer found this is precisely what
occurred here in an election where a single changed vote would have
altered the outcome. In agreement, Member Johnson would find the
statements objectionable based on their impact, regardless of the origi-
nal intent of the speakers.