The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2015 Decided May 20, 2016
No. 14-1166
MANORCARE OF KINGSTON PA, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1200
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
Charles P. Roberts, III argued the cause for petitioner.
With him on the briefs was Clifford H. Nelson, Jr.
Kellie Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Richard F. Griffin, Jr., General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, Usha Dheenan, Supervisor Attorney, and
Gregoire Sauter, Attorney.
2
Before: BROWN AND SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion filed for the Court by Circuit Judge BROWN.
Opinion concurring in part and concurring in the
judgment filed by Circuit Judge SRINIVASAN.
BROWN, Circuit Judge: Employees of ManorCare of
Kingston (ManorCare), a skilled-nursing facility in Kingston,
Pennsylvania, selected the Laborers International Union of
North America, Local 1310 as their collective-bargaining
representative. Because ManorCare alleges third-party
misconduct disrupted the election, it challenges the National
Labor Relations Board’s order requiring it to bargain with the
union. On the basis of the Board’s own precedent, we
determine the third-party conduct here was sufficiently
disruptive to undermine the conditions necessary for a free
and fair election. We grant ManorCare’s petition in part and
grant the Board’s cross-application in all other respects.
I
In the summer of 2013, the Laborers International Union
of North America began to organize the employees
of ManorCare’s Kingston facility. By August 1, 2013,
ManorCare and the union had reached a stipulated agreement
to conduct an election limited to a unit of certified nurses’
aides. The Board scheduled an election at ManorCare for
September 6, 2013. The union eked out a narrow victory—
thirty-four in favor and thirty-two against.
ManorCare objected to the election results a week later,
claiming several employees eligible to vote in the election
threatened to physically harm other employees and harm their
3
property—a circumstance the company alleges destroyed the
“laboratory conditions” necessary for a fair and free
election. After an initial investigation, the Board’s regional
director ordered a hearing on the objections.
Most relevant here, ManorCare called two witnesses at
the hearing, Harriet Robinson and Amy Kovac, to testify
about alleged threats made by two other employees, Lucy
Keating and Juanita Davis.
The Keating Threat. Robinson, a ManorCare nurse, testified
that shortly after the election petition was filed, she was on a
smoke break with Keating, another ManorCare nurse, when
Keating said “if the Union didn’t get in … if we started
bitching[,] that she was going to start punching people in the
face.” JA 599. At the time, Robinson was not afraid because
she knew she could defend herself. But later, during the days
and weeks immediately before the election, Robinson told
other employees about what Keating had said. Three
employees (Kim Lord, Keisha Keller, and Kovac) testified
about what Robinson told them, which included Robinson’s
statements that someone had made physical threats against
employees who would not support the union. Keating also
testified and denied making the alleged threatening
statements.
The Davis Threat. Robinson also testified that on the day
before the election, she and three other nurses, Kovac, Krista
Renfer, and Davis, were walking together in the parking lot
when Davis started yelling that “if the Union didn’t get in that
she was going to start beating people up and destroying their
cars.” JA 601. According to Robinson, Kovac replied to
Davis that “she didn’t think she would beat her up, but if her
car got damaged, she was coming after [Davis] for that.” Id.
At the time, Robinson did not report the matter to her
4
supervisor because she felt she could handle the situation
herself but later thought better of it and reported the incident
the following day.
Kovac told a similar story. Kovac testified that she,
Robinson, and Renfer were standing in an employee smoking
area when Davis “came out of work and says she was going to
slash our tires if we voted no for the Union.” Id. Kovac
initially thought Davis was joking but upon reflection she
changed her mind.
Pam Brittain testified that on the morning of the election,
Robinson was “very upset, very distraught,” and also
“nervous” and “scared.” Id. When asked, Robinson
explained that the previous night, Davis said “if somebody
voted no, and they were upset because we were
[understaffed], that she was going to go after that person, and
beat them up and then go after their cars.” Id. Brittain
insisted that Robinson report the incident. Together, they
told Director Mark Fuhr, and separately Brittain
related Robinson’s story to four other employees. Several
of these employees corroborated Brittain’s
recollection. ManorCare also presented several other
managers and supervisors who testified they had heard about
threats for not supporting the union made against employees
and their property. For example, one manager testified that
on the morning of the election she noticed “clusters” of
voting-eligible employees standing around and “chitchatting”
about their concern that their cars would be damaged if they
voted against union representation. JA at 602.
Davis also testified and denied making threatening
statements, although she acknowledged that she had said “if
you voted no then you shouldn’t complain about, you know,
whatever happens after that.” Id. When asked if she had
5
threatened physical violence to any employees, Davis
answered: “Physically hurt? Not really.” JA 603. It was also
widely known that Davis had been in violent altercations in
the past, and in fact, at the time, she had a hand injury from a
knife fight.
A few weeks later, the hearing officer issued a written
decision sustaining ManorCare’s objection. The hearing
officer credited Robinson’s and Kovac’s testimony about the
statements Davis made, and the hearing officer did not credit
Davis’s denial of those statements, which she found “vague,”
“inconsistent,” and “evasive.” JA 603. Plus, “Davis herself
admitted that a few days after the incident, she told another
employee that security had been provided in the parking lot
because of her.” Id. As to the context surrounding the
statements, the hearing officer did not credit Robinson’s
testimony (which included Davis yelling the alleged threats),
but instead credited the testimony of Kovac and Davis, who
described the conversation as occurring in at least a somewhat
joking manner.
Ultimately, the hearing officer concluded that “the
statements by Davis and Keating were ‘so aggravated as to
create a general atmosphere of fear and reprisal rendering a
free election impossible.’” JA 604, (quoting Westwood
Horizons Hotel, 270 NLRB 802, 803 (1984)). The threats
“dealt with serious subjects—harm to person and property,”
and although they reached a relatively small number of
employees, the election was so close that “had just one voter”
voted differently, “the [u]nion would not have prevailed in the
election.” JA 604. Although the threats were initially stated
in a casual manner, they were repeated to other employees out
of context and prompted ManorCare to provide additional
security for three days following the
election. Id. Cumulatively, the hearing officer concluded that
6
these circumstances required sustaining ManorCare’s
objection to the election results.
The union appealed to the Board, raising several
exceptions to the hearing officer’s findings. The union argued
the hearing officer erred by crediting what it believed to be
the conflicting testimony of both Robinson and Kovac and by
determining that the threats so aggravated the election
atmosphere as to render a free election impossible. The union
also alleged that any dissemination occurred when
ManorCare’s representatives restated the threatening
statements.
The Board agreed with the union and rejected the hearing
officer’s findings about the threatening statements. The
Board emphasized the hearing officer’s conclusion that the
threats were initially made in a casual or even light-hearted
manner and stated that as a result, “neither [threatening
statement] rose to the level of objectionable third-party
threats.” Manorcare of Kingston PA, LLC, 360 NLRB No. 93
(Apr. 24, 2014). The Board recited the test for threatening
statements laid out in its Westwood Hotels decision, on which
the hearing officer had also relied. But in doing so, the Board
relied on additional factors: that the threats were made by
third parties and circulated without their original
context. Id. Rather than evaluate whether these
circumstances could nevertheless create a threatening
situation capable of influencing voting employees, the Board
determined that a “game of telephone” should never be the
basis for a sustained objection against a union
election. Id. The Board relied on the vote tally without
acknowledging the close decision in the election, and based
on that tally certified the union as the exclusive collective-
bargaining representative of ManorCare’s employees. Id.
7
Following the Board’s decision, ManorCare refused to
recognize or bargain with the union. The union
charged ManorCare with violating the National Labor
Relations Act by unlawfully refusing to bargain. See 29
U.S.C. § 158(a)(5). The Board agreed. Manorcare of
Kingston PA, LLC, 361 NLRB No. 17 (Aug. 11,
2014). ManorCare filed a petition in our court challenging
the Board’s order, and the Board filed a cross-petition to
enforce it. See 29 U.S.C. § 160(e), (f).
II
We review the Board’s findings under a deferential
standard, NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109,
112-13 (D.C. Cir. 2012), but we will reverse the Board’s
decision if it is not “reasonable and consistent with applicable
precedent,” Fashion Valley Mall, LLC v. NLRB, 451 F.3d
241, 243 (D.C. Cir. 2006). Here, we apply our usual
deferential standard, but find the Board’s decision to be
irreconcilable with the Board’s own precedent. In that
circumstance, we have no choice but to reverse.
The Board has drawn a firm line that an election cannot
stand where the results do not reflect the employees’ free
choice. General Shoe Corp., 77 NLRB 124, 127 (1948). The
Board has further determined that threats that create a
“general atmosphere of fear and reprisal” render a free
election impossible. Westwood Horizons Hotel, 270 NLRB
802, 803 (1984). Threats will interfere with a free election
when they are “serious and likely to intimidate prospective
voters to cast their ballots in a particular manner.” Id. The
question here is whether the comments made by Davis and
Keating and disseminated to other voting employees in a very
close election crossed the line, becoming threats that made a
free election impossible. We conclude that the Board abused
8
its discretion here by finding that the threats did not create a
“general atmosphere of fear and reprisal” according to the
Board’s own precedent. See id; see also Honeywell Int’l, Inc.
v. NLRB, 253 F.3d 119, 123 (D.C. Cir. 2001) (holding the
Board’s cursory departure from precedent rendered its
decision arbitrary and capricious).
Under the Board’s Westwood Hotel precedent (on which
it relied in issuing its decision here), there are six factors used
to determine whether a threat is serious and likely to
intimidate voters: “[1] the nature of the threat itself . . . [2]
whether the threat encompassed the entire bargaining unit; [3]
whether reports of the threat were disseminated widely within
the unit; [4] whether the person making the threat was capable
of carrying it out; . . . [5] whether it is likely that the
employees acted in fear of his capability of carrying it out;
and [6] whether the threat was ‘rejuvenated’ at or near the
time of the election.” Westwood Hotel, 270 NLRB at
803. Here, the analysis of each of these six factors points to
an election that fell short of the free and fair standard set out
in the Board’s precedent.
Westwood Hotel begins by considering “the nature of the
threat itself.” Id. Here, Keating and Davis each made
statements that, on their face, threatened physical harm and
property damage to non-supporters of
unionization. “[P]unching people in the face,” JA
599, “beating people up and destroying their cars,” JA
601, and “slash[ing] [their] tires,” id., are serious threats, and
if believed, these threats would be clearly capable of changing
the behavior of other voting members of the bargaining
unit. Indeed, some of the threatening statements in this case
are identical to those in Westwood Hotel, where some
employees threatened to “beat up” those who did not support
the union. Westwood Hotel, 270 NLRB at 802. It is clear
9
that, in its review of these facts, the Board misapplied its own
precedent.
Next, Westwood Hotel asks “whether the threat
encompassed the entire bargaining unit.” Id. Keating and
Davis’s threats were indiscriminate in their focus, aimed not
at any particular individual but instead at all of the voting
employees “if the Union didn't get in.” JA 599, 601. Here
again, the facts of this case line up with those of Westwood
Hotel. In Westwood Hotel, two employees threatened to beat
up any other employee in the unit who did not vote for the
union. Id. That type of broadly aimed threat was sufficient to
damage the free and fair election atmosphere and require a
new election.
Relatedly, Westwood Hotel also considers whether the
threats were “disseminated widely within the unit,” id., and
here they were. About eight or nine employees heard about
Davis’s threatening statements, and around five employees
heard Keating’s. And in an election as close as this one—
where only a single voter could have changed the outcome—
the requirement of “widespread dissemination” is satisfied at
a relaxed threshold. Robert Orr-Sysco Food Servs., LLC, 338
NLRB 614, 615 (2002); Smithers Tire & Auto. Testing of
Texas, Inc., 308 NLRB 72, 73 (1992). The Board insists that
any comment relayed with less than stenographic accuracy
cannot count as dissemination. But this view is inconsistent
with the Board’s own precedent, see, e.g., Q.B.
Rebuilders, Inc. 312 NLRB 1141, 1142 (1993) (any humor
attached to initial remark was diluted over the course of its
dissemination), and would preclude a finding of dissemination
in most cases. Here, in reaching its conclusion, the Board did
not follow its own precedent: the threatening statements were
disseminated widely enough to have affected the outcome of
the election.
10
Looking to “whether the person making the threat was
capable of carrying it out,” the facts of this case again satisfy
the Westwood Hotel inquiry. The record gives no reason to
doubt that both Keating and Davis, but particularly Davis,
were capable of delivering on the threatening statements they
made. Although Robinson did not credit Keating’s threat to
“start punching people in the face” in the moment, largely
because Keating is small and Robinson is tall, that does not
mean Keating would have been unlikely to carry out her
threat against others who also heard about the
statement. Most people are physically capable of delivering a
punch to another person’s face, and the record gives no
indication why Keating would have been entirely incapable of
making good on her threat. But even if Keating were not
capable of “punching people in the face” in the way she
suggested, it is clear that Davis was capable of making good
on the threatening statements she communicated to other
employees. It was widely known that Davis had been in
fights in the past and, in fact, at the time of the election bore a
hand injury resulting from a knife fight. Employees would
have had every reason to assume Davis could punch people
and damage their cars if she chose.
Another Westwood Hotel factor is “whether it is likely
that employees acted in fear of [the speaker’s] capability of
carrying out the threat.” Westwood Hotel, 270 NLRB at
803. Although the statements from Davis and Keating were
probably “not intended to induce fear to the audience who
heard them . . . the remarks were repeated to employees who
were not in a position to judge how the remarks were
intended” and those employees “could not have known that
Davis . . . would not have followed through on her
threat.” JA 604. That employees experienced real fear is
only confirmed by the fact that ManorCare hired parking lot
11
security for three days following the election based on
Davis’s threats to employees’ cars. Nefarious intentions or
not, it is apparent from the evidence that employees were
likely to have acted in fear of the threatening statements Davis
made.
Lastly, “whether the threat was ‘rejuvenated’ at or near
the time of the election,” Westwood Hotel, 270 NLRB at
803, has limited application here: there was no need for
“rejuvenation” in this case because the threats occurred for
the first time in close proximity to the election. Given that the
threats were stated and disseminated close in time to the
election, we find this factor satisfied as well.
Rather than analyze these factors as Westwood
Hotel requires, the Board cursorily acknowledged its
own precedent and then dismissed the effect of the
threatening statements in a discussion too brief to demonstrate
how the facts of this case align with the Board’s
precedent. Such truncated analysis may often encourage
reviewing courts like this one to affirm the Board’s decisions
because the reasoning is so skeletal as to thwart assessment of
its reasonableness. But this habit would shortchange the
obligations of reviewing courts. It is the Board that must
demonstrate its decisions are consistent with its precedent
because, although our standard of review is deferential, it is
not meaningless. Here, the Board has given us little to
evaluate, and the record demonstrates that the Board’s
decision was inconsistent with its own precedent in the form
of Westwood Hotel.
Moreover, when the Board concluded the threatening
statements here were merely jokes, it failed to follow its
precedent in another way. The Board’s test for determining
whether a statement constitutes a threat is an objective
12
one. “The test is not the actual intent of the speaker or the
actual effect on the listener,” but “whether a remark can
reasonably be interpreted by an employee as a
threat.” Smithers Tire, 308 NLRB at 72. A threatening
statement, “even one uttered in jest,” can nonetheless convey
a risk to another of serious harm. Here, the Board
emphasized the “casual and joking nature” of the original
comments and dismissed the threatening content of those
remarks as “no more than bravado and bluster.” Manorcare,
360 NLRB No. 93. But although Keating and Davis may
have intended their remarks in jest, some employees
interpreted the remarks as threats, and it was reasonable for
them to do so. That the comments might have originated as
jokes is irrelevant. The remarks were threatening, and
seriously so. The objective standard demanded by the
Board’s precedent requires assessing the threats according to
what they reasonably conveyed, not what the speakers
intended to convey.
Nor does it matter, as the Board thought it did, that the
threats were disseminated by third parties. The Board has
repeatedly found “that voting-related threats of substantial
harm” to persons or property “directed at a determinative
number of voters create an atmosphere of fear and reprisal
sufficient to set aside an election.” Robert Orr, 338 NLRB at
616. And the Board has made clear that “conduct disruptive
or destructive of the exercise of free choice by the voters . . .
regardless of whether the person responsible for the
misconduct is an agent of a party to the election or simply an
employee…” may warrant setting aside results and holding a
new election. Westwood Hotel, 270 NLRB at 804. In fact,
the Board has not hesitated to “set aside elections where, as
here, threats have been made or disseminated to voters whose
ballots might have been determinative.” Robert Orr, 338
NLRB at 615 (emphasis added). The Board did not even
13
acknowledge this precedent, let alone distinguish it. The
threatening statements Keating and Davis made were
addressed and disseminated to enough employees to sway the
outcome of this election. That is enough to warrant setting
aside the election result. “The Board’s decision
is not consistent with its past practice” and its “departure from
precedent without a reasoned analysis renders its decision
arbitrary and capricious.” Honeywell Int’l, 253 F.3d at 123.
In its submitted briefs—but not in its decision—the
Board relied on several cases that are clearly
distinguishable. In Beaird-Poulan Div., Emerson Elec. Co. v.
NLRB, 649 F.2d 589 (8th Cir. 1981) an administrative law
judge credited five of twenty alleged instances of misconduct,
including at least one threatening statement similar to the
statements made here. 649 F.2d at 593. The Board’s
agreement that these incidents did not warrant overturning the
challenged representation election, id. at 594, rested on the
conclusion the five credited incidents constituted “empty
threats,” “occurring during a ten-week election campaign”
that involved “over 800 eligible voters.” Id. at 595. Here,
employees testified that they interpreted the threatening
statements as real threats backed by the pugnacious reputation
of one of the speakers, the statements occurred close to the
election, and they were disseminated to a significant
proportion of a much-smaller electorate in a very close
election.
The Board does no better with its reliance on NLRB v.
Bostik Div., USM Corp., 517 F.2d 971 (6th Cir.
1975). In Bostik, the Sixth Circuit affirmed the Board’s
evaluation of twenty incidents—including twelve threats—
that occurred during the course of a representation
election. The Sixth Circuit agreed that the threats “were not
considered or intended seriously” and included exchanges
14
between two employees who “always kidded and joked
around with each other a lot.” 517 F.2d at 973. The Sixth
Circuit found the threats nothing more than the banter
common “among workers in an industrial setting” and the
objects of this jocular invective all testified they were not
intimidated and voted against the union. Id. at 973-74. Here,
none of the employees gave any indication that they had
previously “kidded or joked around” with Davis or
Kovac. Nor is there any indication the alleged threats were
simply profanities or expressions common in the
workplace. And, unlike in Bostik, the employees who
discounted the threatening remarks in the moment of their
utterance, reconsidered their import and later came to
consider them serious threats.
Finally, the Board’s reliance on Kux Mfg. Co. v. NLRB,
890 F.2d 804, 810 (6th Cir. 1989) is also easily
distinguishable from the present case. In Kux
Manufacturing, the employer objected to the certification of
the representation election on multiple grounds, including
threats allegedly made by a union-sympathizing
employee. But the threatening remarks were bravado: they
were only heard and discussed by two employees and not
widely disseminated, nor taken seriously as they were here
where the employer increased security—leading one of the
speakers to brag about eliciting that response. Here, the
threats crossed the line from bluster and playful profanity to
intimidation.
III
ManorCare also challenges the legitimacy of the
Regional Director’s election supervision. The Board
appointed Dennis P. Walsh as Regional Director during a
period in which the Board lacked a quorum, as later
15
determined by NLRB v. Noel Canning, 134 S. Ct. 2550
(2014). ManorCare argues that, as a result of the Board’s lack
of a quorum when it appointed Walsh, his actions as Regional
Director were “null and void,” including his certification of
ManorCare’s election result. The Board, however, argues that
ManorCare waived any arguments about the Regional
Director’s authority by not raising them in the representation
proceeding. The Board further points out that, even if
ManorCare had not forfeited its right to challenge Walsh’s
appointment by failing to raise it in the representation
proceeding, it also signed a Stipulated Election Agreement in
which it expressly consented to Walsh’s oversight of the
election.
Although challenges to an agency’s action based on the
agency’s lack of authority may ordinarily be raised for the
first time on appeal, see SSC Mystic Operating Co. v.
NLRB, 801 F.3d 302, 308–09 (D.C. Cir. 2015), and UC
Health v. NLRB, 803 F.3d 669, 672–73 (D.C. Cir. 2015),
ManorCare’s argument is different, depending not on a
challenge to institutional legitimacy but on a challenge to a
delegated officer’s appointment. Here, the Board was
properly constituted when the election took place and
throughout the relevant review period. The challenge, then,
does not confront the institutional legitimacy of the Regional
Director’s exercise of delegated authority at a time when the
Board lacked a quorum. Rather, the challenge is to the
Regional Director’s initial appointment, and a challenge to an
officer’s appointment or the authority of a body to decide a
claim is subject to forfeiture. See United States v. L.A. Tucker
Truck Lines, Inc., 344 U.S. 33, 37 (1952) (rejecting belated
challenge to appointment of hearing examiner); see also, e.g.,
United States v. Olano, 507 U.S. 725, 731 (1994) (“No
procedural principle is more familiar to this Court than that a
constitutional right may be forfeited by the failure to make
16
timely assertion of the right.”) (citation omitted); 9 C. Wright
& A. Miller, Federal Practice and Procedure § 2472, p. 455
(1971) (Forfeiture is “not a mere technicality and is essential
to the orderly administration of justice.”). Here, the Board
acted reasonably in determining that ManorCare had forfeited
this argument.
The Board further points out that ManorCare signed a
Stipulated Election Agreement in which it expressly
consented to Walsh’s oversight of the representation election,
thus likely dooming its challenge even if it had been raised to
the Board in the representation proceeding. ManorCare
cannot now complain about the authority of the supervisor it
agreed to use. And because the Stipulated Election
Agreement signed by the parties starkly limited any discretion
the Regional Director may have had in setting the terms of the
election, his supervisory role here was de minimis.
ManorCare suggests it would have been futile to
challenge Walsh’s appointment at this early stage because the
Board processed cases even during the Noel Canning
interregnum as if it was duly configured. But this overlooks
Board rules which allow the General Counsel to transfer an
election petition to a different region where the legitimacy of
the Regional Director’s appointment is not in doubt. See 29
C.F.R. § 102.72; see, e.g., Lyric Opera of Chicago, 322
NLRB 865, 865 n.1 (1997) (noting that the General Counsel
transferred representation proceedings from Region 13 to
Region 19 for decision). Moreover, as is clear from the
record, by the time the Board heard ManorCare’s objections
to the election and then certified that election, the Board was
operating with a fully confirmed quorum. The Board decision
here appealed suffered from no jurisdictional defect. We
reject ManorCare’s contention that any interim illegitimacy in
17
the Regional Director’s appointment warrants a new
election.
In Advanced Disposal Servs. East, Inc. v. NLRB, 2016
WL 1598607 (3d Cir. Apr. 21, 2016) , the Third Circuit relied
on UC Health and SSC Mystic to reject the Board’s arguments
that an employer’s challenge to the authority of a Regional
Director to conduct a representation election was forfeited, or
alternatively, the parties had agreed to the Regional Director’s
authority to conduct the election when the stipulated election
agreement was signed and submitted. The Third Circuit held
that, because the Board lacked a quorum at the time of the
Regional Director’s appointment, the employer’s challenge to
the Regional Director’s authority to act constituted an
extraordinary circumstance under 29 U.S.C. § 160(e), and did
not need to be raised before the Board first.
But our prior decisions in UC Health and SSC Mystic
found that “extraordinary circumstances” existed because
“challenges to the composition of an agency can be raised on
review even when they are not raised before the agency.” UC
Health, 803 F.3d at 672−73. Here, because ManorCare’s
challenge is not to the Board’s ability to exercise its authority
but rather to Walsh’s authority to conduct the election—
authority that was exercised after the Board “once against
consist[ed] of sufficient members to constitute a quorum,”
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564
F.3d 469, 476 (D.C. Cir. 2009)—this case does not raise a
“challenge to the composition of an agency.” Thus, there are
no “extraordinary circumstances” at play here.
IV
Because the Board arbitrarily departed from its own
analytical framework for evaluating the allegations of third-
18
party electoral misconduct, we grant ManorCare’s petition in
relation to that issue, and grant the Board’s cross-application
for enforcement in all other respects.
So ordered.
SRINIVASAN, Circuit Judge, concurring in part and
concurring in the judgment: I fully agree with Part III of the
court’s opinion, in which the court concludes that ManorCare
forfeited its challenge to the Regional Director’s authority.
With regard to Part II of the opinion, I agree with my
colleagues that the Board’s decision in this case was too
cursory, in that the Board at least needed to do more to
explain how its decision in this case fits with its precedent.
Unlike the majority, however, I do not understand the Board’s
decision declining to set aside the election to be irreparably
inconsistent with its prior decisions. Rather, I would remand
the case to enable the Board to explain how its rejection of
petitioner’s election objection aligns with its precedent.
As a preliminary matter, “our review of the Board’s
rulings regarding [an] election is ‘extremely limited.’” NLRB
v. Downtown Bid Servs. Corp., 682 F.3d 109, 112 (D.C. Cir.
2012) (quoting Amalgamated Clothing & Textile Workers
Union v. NLRB, 736 F.2d 1559, 1564 (D.C. Cir. 1984)). If
“the Board’s decision to certify a union is consistent with its
precedent and supported by substantial evidence in the record,
we may not disturb it.” Id. And because of the Board’s
“particular expertise” in assessing whether the original
election or a new election would better reflect employees’
free choice, the Board has “particularly broad discretion” in
deciding whether to rerun a representation election.
Amalgamated Clothing & Textile Workers Union, 736 F.2d at
1562–63.
In reviewing whether the Board’s decision is “consistent
with its precedent,” Downtown Bid, 682 F.3d at 112, the court
today appropriately focuses on the Board’s Westwood
Horizons Hotel decision, which frames the test for
overturning an election result based on third-party
misconduct. Under that test, the Board examines “whether
the misconduct was so aggravated as to create a general
atmosphere of fear and reprisal rendering a free election
2
impossible.” 270 NLRB 802, 803 (1984). The decision in
Westwood Horizons Hotel sets forth specific factors to guide
the inquiry into whether that overarching standard is satisfied.
See pp. 7–10, supra. Here, the Board concluded that the
misconduct did not meet that standard and thus did not require
rerunning the election.
In reaching that conclusion, however, the Board did not
adequately ground its rationale in its precedent. Although the
Board initially listed the factors set forth in Westwood
Horizons Hotel for assessing the seriousness of a third party’s
threatening statements, the Board undertook no application of
those factors to the facts of this case, even though the hearing
officer, applying the same factors, concluded that they
warranted setting aside the election. The Board observed that
the statements at issue were initially made in a joking or
casual manner and amounted to no more than “bravado and
bluster” that was “likely to be discounted by other
employees.” Manorcare of Kingston PA, LLC, 360 NLRB
No. 93 (Apr. 29, 2014). But as the Board acknowledged, the
statements then were “apparently characterized out of
context” when the initial recipients repeated them to other
employees. Id. “In other words,” the Board assumed, “these
were characterizations by those who had not made the
statements and, further, repeated to employees who” were left
to draw their own conclusions about the extent of the
statements’ threatening nature without “the benefit of hearing
them and evaluating them personally.” Id.
In declining to overturn the election in those
circumstances, the Board noted its historic “reluctan[ce] to set
aside an election where employees circulate third-party
statements that have been stripped of their original context.”
Id. The Board also cited a concern that setting aside the
election “would open the door to objections being
3
substantiated by rumors devoid of any truth, and encourage
false attributions in order to influence election outcomes.” Id.
Those general considerations, in my mind, could form the
foundation of a decision declining to set aside the election in
this case under the analysis established by Westwood
Horizons Hotel.
The Board’s recitation of those considerations, however,
was not just the foundation of its decision—it was essentially
the entirety of the Board’s analysis. The Board, for instance,
failed to note or contend with its prior decisions, including
those cited by the majority, see, e.g., Q.B.
Rebuilders, Inc., 312 NLRB 1141 (1993), that could be seen
to be in some tension with its conclusion on the main issue
before it here: whether joking or blustery comments, when
further disseminated in a manner divorced from their original
context, “create a general atmosphere of fear and reprisal
rendering a free election impossible,” Westwood Horizons
Hotel, 270 NLRB at 803. Moreover, the Board, as noted, did
not apply the Westwood Horizons Hotel factors to the facts of
this case. The Board also made no effort in its analysis to
address the closeness of the election (34 votes in favor of the
Union and 32 votes against), which the Board’s precedent
suggests could be a significant consideration in deciding
whether to rerun an election. See Robert Orr-Sysco Food
Servs., LLC, 338 NLRB 614, 615 (2002).
In the end, although one can conceive of ways to align
the Board’s conclusion in this case with its prior decisions,
“[i]t is not this court’s role to supply post hoc justifications
for the Board’s result; the duty to justify lies exclusively with
the Board in the first instance.” United Food & Commercial
Workers v. NLRB, 880 F.2d 1422, 1437 (D.C. Cir. 1989).
And while there of course is no requirement for the Board to
engage in an examination of any particular length, here, the
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Board needed to do more to explain how its decision fit
within its precedents, as indicated by the hearing officer’s
reaching the contrary conclusion under those precedents.
For those reasons, I would remand this case to the Board
to give it an opportunity (if it elected to adhere to its original
conclusion) to ground its decision in its prior cases and further
explain its rationale for finding that a new election is
unwarranted in the circumstances. See Exxel/Atmos, Inc. v.
NLRB, 28 F.3d 1243, 1249 (D.C. Cir. 1994); United Food &
Commercial Workers, 880 F.2d at 1439. I thus concur in the
judgment of the court insofar as it grants the petition for
review in part and denies the Board’s cross-application for
enforcement in part.