Manorcare of Kingston PA, LLC v. National Labor Relations Board, 2016 U.S. App. LEXIS 9231

Background

ManorCare employees voted in a September 6, 2013 election to select the Laborers Int’l Union, Local 1310; result 34–32 for the union.
ManorCare objected, alleging two employees (Lucy Keating and Juanita Davis) made threats of physical harm and property damage toward non‑supporters that were repeated to other voters.
A hearing officer credited testimony that Davis’s and Keating’s remarks were disseminated, found them to have created a “general atmosphere of fear and reprisal,” and sustained ManorCare’s objection, ordering a new election.
The NLRB reversed the hearing officer, concluding the remarks were casual/joking and that third‑party republication (a “game of telephone”) could not sustain an objection; the Board certified the union and ordered ManorCare to bargain.
ManorCare refused to bargain and petitioned the D.C. Circuit to review the Board’s enforcement; the Board sought enforcement of its order.

Issues

Issue	Plaintiff's Argument (ManorCare)	Defendant's Argument (NLRB / Union)	Held
Did third‑party threats and their dissemination render the election unfair?	Threats to "punch," "beat up," and "slash tires" were serious, widely disseminated in a very close election, and created fear sufficient to set aside the election.	The original remarks were casual/joking; republication stripped context so third‑party repetition cannot, by itself, justify setting aside certification.	Court: Board departed from its own Westwood precedent by failing to apply its six‑factor test; threats and dissemination here meet Westwood factors — petition granted in part.
Whether the Board reasonably applied its Westwood Horizons Hotel factors when declining to set aside the election	Board must apply Westwood factors objectively; the six‑factor test points toward overturning the election.	Board believed longstanding reluctance to set aside elections based on third‑party rumors and viewed the remarks as bravado.	Court: Board’s analysis was cursory and inconsistent with its precedent; reversal as to third‑party misconduct issue.
Whether ManorCare forfeited challenge to the Regional Director’s authority (appointment during alleged Board quorum gap)	Challenge to the Regional Director’s appointment made on review should void actions taken under him.	ManorCare forfeited appointment challenge by not raising it before the Board and had signed a Stipulated Election Agreement consenting to Regional Director oversight.	Held: ManorCare forfeited the appointment challenge; no basis to set aside certification on that ground.
Remedy: remand, new election, or enforcement of bargaining order	Seek relief from certification and bargaining order based on third‑party misconduct.	Seek enforcement of Board’s bargaining order.	Held: Court grants ManorCare’s petition in part (as to third‑party misconduct analysis) and grants the Board’s enforcement cross‑application in other respects; opinion vacates Board’s contrary analysis.

Key Cases Cited

Honeywell Int’l, Inc. v. NLRB, 253 F.3d 119 (D.C. Cir. 2001) (Board’s unexplained departure from precedent is arbitrary and capricious)
Beaird‑Poulan Div., Emerson Elec. Co. v. NLRB, 649 F.2d 589 (8th Cir. 1981) (consideration of context, scale, and timing in assessing threats)
NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109 (D.C. Cir. 2012) (deferential but limited review of Board election rulings)
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) (forfeiture of appointment objections raised too late)
United States v. Olano, 507 U.S. 725 (1993) (constitutional rights may be forfeited by failure to timely assert them)
Kux Mfg. Co. v. NLRB, 890 F.2d 804 (6th Cir. 1989) (distinguishing bluster not widely disseminated from intimidation)
NLRB v. Robert Orr‑Sysco Food Servs., LLC, 338 NLRB 614 (2002) (small‑scale dissemination can be sufficient in very close elections)
Smithers Tire & Auto Testing of Texas, Inc., 308 NLRB 72 (1992) (objective test: whether remark can reasonably be interpreted as a threat)