Sonoma Health Care Center

National Labor Relations Board - Board Decisions

Aug 31, 2004

342 N.L.R.B. 933 (N.L.R.B. 2004)

SONOMA HEALTH CARE CENTER
342 NLRB No. 93
933
Ensign Sonoma LLC d/b/a Sonoma Health Care Cen-
ter and Health Care Workers Union, Local 250,
Service Employees International Union, AFL–
CIO, Petitioner. Case 20–RC–17746
August 31, 2004
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND MEISBURG
The National Labor Relations Board has considered
objections to an election held May 24, 2002, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 38
for and 22 against the Petitioner, with 1 challenged bal-
lot, an insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations, and finds that a certifica-
tion of representative should be issued.1
The Board unanimously agrees that the standard to be
applied in deciding this case is set forth in Athbro Preci-
sion Engineering Corp.2 A majority of the Board3 inter-
prets Athbro to require that an election be set aside when
the conduct of the Board election agent tends to destroy
confidence in the Board’s election process or could rea-
sonably be interpreted as impairing the election standards
the Board seeks to maintain. Confidence in the Board
election process and standards can be undermined when
Board agents fail to maintain strict neutrality in what
they say while conducting Board elections. Their con-
duct may threaten the “indispensable perception of Board
neutrality.” Hudson Aviation Services, 288 NLRB 870
(1988). Under this standard, the majority concludes that
statements of personal opinion by a Board agent may be
sufficiently partisan to warrant setting aside an election
even if made to a limited audience and even if unaccom-
panied by procedural irregularities or other “actions that
reasonably create the appearance that the election proce-
dures will not be fairly administered.” A separate major-
ity4 finds that the specific statements of personal opinion
made by the Board agent in this case, while intemperate
and inappropriate, do not mandate setting aside this elec-
tion under Athbro. Members Liebman and Walsh concur

1 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation to overrule the Employer’s Objections 2–6.
2 166 NLRB 966 (1967), vacated sub nom. Electrical Workers v.
NLRB, 67 LRRM 2361 (D.D.C. 1968), acquiesced in 171 NLRB 21
(1968), enfd. 423 F.2d 573 (1st Cir. 1970).
3 Chairman Battista and Members Schaumber and Meisburg.
4 Members Liebman, Schaumber, Walsh, and Meisburg.
in the result, but read Athbro and subsequent decisions as
holding that a Board agent’s mere statement of personal
feelings to a limited audience will not taint an election,
absent actions that reasonably create the appearance that
the election procedures will not be fairly administered.
The separate opinions, respectively, of Members
Schaumber and Meisburg, Members Liebman and Walsh,
and Chairman Battista, follow.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Health Care Workers Union, Local 250,
Service Employees International Union, AFL–CIO and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:

All full-time and regular part-time employees in service
and maintenance, including Certified Nursing Assis-
tants, Restorative Nursing Assistants, Activities, Die-
tary, Laundry and Maintenance employees, employed
by the Employer at its facility located at 1250 Broad-
way, Sonoma,
California; excluding all professional employees, RNs,
LVNs, office clerical employees, guards and supervi-
sors as defined in the Act.

MEMBERS SCHAUMBER and MEISBURG, concurring in the
result.
1. Introduction
The issue before us is whether the hearing officer has
correctly recommended overruling the Employer’s Ob-
jection 1, alleging that the election process was imper-
missibly tainted by comments made by the Board agent
who conducted the election. We concur with our col-
leagues that the standard to be applied in such cases is set
forth in Athbro Precision Engineering Corp., 166 NLRB
966 (1967). As discussed below, we believe that Chair-
man Battista’s interpretation of the Athbro standard is the
correct one, and decline to adopt the overly restrictive
reading advocated by our concurring colleagues, Mem-
bers Liebman and Walsh. Contrary to the Chairman,
however, we nonetheless conclude that application of
Athbro to the specific facts of this case does not mandate
setting aside the election. We therefore join Members
Liebman and Walsh in finding that a certification of rep-
resentative should issue.
2. Facts
The relevant facts are few and largely undisputed.
During a break in polling, union observer Juan Lopez
asked the Board agent conducting the election why
“companies” do not like unions. The Board agent re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
plied, “[C]ompanies don’t like unions because they can-
not fire or hire anyone, and they cannot take benefits
from the staff.” The record establishes that no one else
except the Employer’s observer, Yolanda Gonzalaz,
heard (or heard about) this dialogue. Later, Lopez men-
tioned to the Board agent that the Employer had paid
$60,000 to “the consultant,” to which the Board agent
responded “whoa, $60,000.” There is no evidence that
anyone else except Gonzalaz heard (or heard about) this
dialogue. Still later, Gonzalaz asked the Board agent
why he had answered Lopez’ question that morning. The
Board agent replied, “[W]ell, I can just give my opinion
because I’m not going to vote.” There is no evidence that
anyone else heard (or heard about) this dialogue.
3. Discussion
We concur generally with Chairman Battista’s discus-
sion of the standard adopted by the Board in Athbro, a
standard we reaffirm today. As the Chairman correctly
observes, the test applied in Athbro was whether the con-
duct of the Board agent in conducting the election
“tend[ed] to destroy confidence in the Board’s election
process, or . . . could reasonably be interpreted as impair-
ing the election standards [the Board] seek[s] to main-
tain.” 166 NLRB at 966. Board agents who fail to main-
tain strict neutrality in what they say while conducting
the Board’s business threaten the “indispensable percep-
tion of Board neutrality,” which can undermine confi-
dence in the Board’s election process. Hudson Aviation
Services, 288 NLRB 870 (1988). We also agree with the
Chairman that the new standard articulated by Members
Walsh and Liebman is inconsistent with and more re-
strictive than Athbro, and subsequent cases following it,
and we decline to adopt it. In our view, like the Chair-
man’s, a statement of personal opinion by a Board agent
may be sufficiently partisan to warrant setting aside an
election, even if made to a limited audience and even if
unaccompanied by procedural irregularities or other “ac-
tions that reasonably create the appearance that the elec-
tion procedures will not be fairly administered.”
While agreeing with the Chairman’s adherence to the
Athbro standard, we ultimately agree with Members
Liebman and Walsh that the Board agent’s remarks here,
while intemperate and inappropriate, do not mandate
setting aside this election under Athbro. As our col-
leagues note, the agent’s impulsive remarks, only one of
which could be construed as partisan, were not as public
as the conduct in question in Athbro, came in response to
questions asked by the election observers, were heard by
only two employees—the election observers chosen by
the parties—in an election won by a large margin, and do
not reflect such a level of bias or impropriety that they
tend to destroy confidence in the Board’s election proc-
ess or truly impugn the election standards the Board
seeks to maintain. Nor, when considered in context, do
they taint the “indispensable perception of Board neutral-
ity.” Hudson Aviation Services, supra. In so concluding,
we are mindful of the fact that the impact of Board agent
misconduct on an election’s outcome is not determina-
tive under Athbro. Nevertheless, preservation of the free
and uncoerced choice of employees is a relevant and
compelling consideration, and we will not nullify that
choice under the circumstances presented in this case.
The Board has unanimously addressed the Board
agent’s misconduct in this decision; further corrective
action can be taken administratively.

MEMBERS LIEBMAN and WALSH, concurring in the result.
1. Overview
The election in this case was decided by a 62-to-36
percent margin. For the reasons that follow, we find that
the Board agent’s unguarded remarks, which were heard
only by the two election observers, could not possibly
have affected the outcome of the election, did not inter-
fere with the election process, did not reasonably tend to
destroy public confidence in the Board’s election proc-
ess, and could not reasonably be interpreted as impugn-
ing the integrity and neutrality of the Board’s election
procedures. Setting the election aside would thus be un-
warranted under the circumstances in this case. And
declining to set aside the election is consistent with at
least 30 years of Board and court precedent. Accord-
ingly, while our rationale differs from that of Members
Schaumber and Meisburg, we agree that a certification of
representative is appropriate.
2. Analysis and conclusion
a. Applicable principles
The applicable principles are summarized in Safeway,
Inc., 338 NLRB 525 (2002) (quotation marks and cita-
tions omitted):1

Representation elections are not lightly set aside. There
is a strong presumption that ballots cast under specific
NLRB procedural safeguards reflect the true desires of
the employees. Accordingly, the burden of proof on
parties seeking to have a Board-supervised election set
aside is a heavy one. The objecting party must show,
inter alia, that the conduct in question affected employ-
ees in the voting unit.

An objecting party must show by specific evidence not only
that the improper conduct occurred, but also that it inter-

1 See also, e.g., Lockheed Martin Corp., 331 NLRB 852, 854 (2000).
SONOMA HEALTH CARE CENTER 935
fered with the employees’ exercise of free choice to such an
extent that it materially affected the results of the election.2
When a Board agent is alleged to have engaged in ob-
jectionable conduct warranting the setting aside of the
election, the Board also applies the standard in Athbro
Precision Engineering.3 In Athbro, the union narrowly
won, 20 to 18, with one challenged ballot. Between the
morning and afternoon voting sessions, an employee who
had already voted saw the Board agent drinking beer
with a union representative in a cafe about a mile from
the plant. The Board set aside the election. Although the
Board found that the Board agent’s conduct did not af-
fect the employees’ votes, the Board found that this was
not the only test to apply. The Board stated:

The Board in conducting representation elections
must maintain and protect the integrity and neutral-
ity 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 impugn-
ing the election standards we seek to maintain, is a
sufficient basis for setting aside that election. [166
NLRB at 966; emphasis added.]

The analytical focus of the Athbro line of cases is particu-
larly well illustrated in NLRB v. Dobbs Houses, Inc., 435
F.2d 704 (5th Cir. 1970). There, the Fifth Circuit Court of
Appeals enforced the Board’s order finding that a Board
agent had not engaged in conduct that tainted the election
when, near the end of balloting and in response to a question
from the employer’s observer, he stated to the employer and
union observers that he felt that the union would win the
election and that it would “do the people a lot of good.”
The court explained why Athbro was not controlling, as
follows:

The Board could reasonably distinguish this case.
There was no procedural irregularity, nothing im-
pinging on the sanctity of the ballot box. And the
Agent’s improper actions were not as public as those
in Athbro. Additionally, it would be reasonable to
distinguish between acts of fraternization and ex-
pressions of personal feelings to limited audiences.
The former smacks much more of irregularity than
the latter. Finally, the Board Agent’s improper
statements were not part of a proselytizing effort on

2 Tony Scott Trucking v. NLRB, 821 F.2d 312, 316 (6th Cir. 1987),
citing NLRB v. Golden Age Beverage, 415 F.2d 26, 30 (5th Cir. 1969).
3 166 NLRB 966 (1967), vacated sub nom. Electrical Workers v.
NLRB, 67 LRRM 2361 (D.D.C. 1968), acquiescing in district court’s
order on remand as “the law of this case,” 171 NLRB 21 (1968), enfd.
423 F.2d 573 (1st Cir. 1970).
his part or even a simple unprovoked indiscretion.
[Footnote omitted.]

435 F.2d at 705–706. Thus, as decisions of the Board and
the courts demonstrate, a Board agent’s mere statement of
personal feelings to a limited audience will not taint an elec-
tion,4 absent actions that reasonably create the appearance
that the election procedures will not be fairly administered.5
b. Application of principles
The Board agent’s remarks here, while ill advised, do
not warrant setting aside this election under the princi-
ples set out above. Only Lopez and Gonzalaz heard the
first two remarks, and only Gonzalaz heard the third.
Thus, the Board agent’s remarks were certainly not as
public as the conduct in question in Athbro, where the
Board agent was observed drinking beer with a union
representative during a break in the polling. Fraternizing
with a representative of one of the parties in the election
contest was a public act inconsistent with the Board
agent’s required impartiality, and directly cast doubt on
the integrity and neutrality of the election procedures.
Here, the Board agent did nothing to suggest any proce-
dural irregularity. None of the Board agent’s remarks to
Lopez and Gonzalaz—and certainly nothing else he said
or did—could have reasonably caused these two election
observers to suspect that the Board agent was actually
conducting the election in a way that would advantage
the Union. Also, the Board agent’s remarks were made
in response to questions asked by the election observers,
and therefore were not “part of a proselytizing effort on

4 See NLRB v. Allen’s I.G.A. Foodliner, 652 F.2d 594 (6th Cir.
1980), enfg. 236 NLRB 1342 (1978) (Board agent’s statements to two
observers during balloting that in her opinion she would not be there
holding an election if the employees had been treated right, did not
warrant setting aside the election where no voters were present in the
polling area, most of the voters had already voted, and there was no
evidence that the Board agent’s remark was relayed to any voter);
Rheem Mfg. Co., 309 NLRB 459 (1992) (Board agent’s statements to
three observers during a break in polling that it was so hot in the polling
area that if he had to return to the plant in the future he might have to
file his own petition did not warrant setting aside the election where no
voters were present in the polling area, at least one of the two observers
had already voted, and there was no evidence that the Board agent’s
remark was relayed to any other voter); Shorewood Manor Nursing
Home, 217 NLRB 1106 (1975) (Board agent’s statements to two ob-
servers during a lull in voting that he felt that he had gotten his job with
the Board because he had been a union steward on his previous job did
not warrant setting aside the election where no one else was present and
there was no evidence that anyone else heard about the remark).
5 Our dissenting colleague implies that when Board agent miscon-
duct is alleged, the actual impact of that conduct on the election is not a
primary consideration. While actual impact on the election is not the
only consideration, it is not relegated to secondary status. To the con-
trary, in Athbro itself the Board reveals the order of analytical prece-
dence: “Although the Board Agent’s conduct did not affect the votes of
employees, we do not agree that this is the only test to apply.” 166
NLRB at 966.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
his part” or an entirely “unprovoked indiscretion.”
Dobbs Houses, supra, 435 F.2d at 706. His remarks were
also clearly expressions of his own personal opinion, and
not representations as to the Board’s policy. Finally,
while the Board agent’s response to Lopez’ first question
could be understood as putting employers as a group in a
negative light, his spontaneous remark when being told
how much the employer paid its election consultant—
“Whoa, $60,000”—was not necessarily partisan. The
agent’s response to the third question, the question asked
by Gonzalaz as to why the Board agent responded to
Lopez’ question in the manner he did, was not partisan.
It neglected the need for Board agents to maintain pro-
fessional distance from the parties while conducting offi-
cial agency business, but it did not add to the partisan
nature of his first remark or give further meaning to his
second remark.
This is not to suggest at all that the Board agent’s re-
sponse to the question why companies don’t like unions
was appropriate. It was not. Nevertheless, when an elec-
tion is won by a wide margin and setting it aside will
result in thwarting the will of the employees who voted
in it, we must take this countervailing concern into con-
sideration, as well as whether other alternatives can best
address the Board agent’s actions. Given the Act’s over-
riding purposes, we should not mechanically set aside the
election whenever a Board agent makes an inappropriate
remark. Clearly, then, and contrary to our dissenting
colleague’s assertion, we are not upholding this election
“as if nothing happened.” We are upholding it because
what did happen does not warrant setting it aside.
Our dissenting colleague argues that the Board agent’s
remarks undermine Board neutrality. We respectfully
differ. The observer clearly did not seek an official
Board position on why employers supposedly do not like
unions, and, in response, the Board agent obviously vol-
unteered his own personal opinion. In fact, he expressly
said as much to Gonzalaz later on when he explained that
the reason he answered Lopez’ question was that “I can
just give my opinion.” Nor did the Board agent express
any Board position on the money spent by the Employer
on a consultant. Rather, the Board agent simply re-
sponded to Lopez’ statement about how much he thought
the Employer had spent. Our dissenting colleague as-
serts that the Board agent’s reply—“Whoa, $60,000!”—
constituted a message that employers are willing to spend
lavishly to defeat a union. That interpretation reads far
too much into this spontaneous exclamation and limited
exchange.6

6 The cases cited by our colleague are readily distinguishable from
the instant case. In NLRB v. State Plating & Finishing Co., 738 F.2d
733, 740 (6th Cir. 1984), the Board’s neutrality was destroyed by a
In short, we cannot say that the Board agent said or did
anything that had a reasonable tendency to destroy the
observers’ confidence in the election process itself. In
arguing for a different result, our dissenting colleague
relies heavily on Athbro, supra, and says we are trying to
“get around” that case. There is, however, no need for us
to circumvent Athbro. As the court found in Dobbs
Houses, supra, Athbro is distinguishable from cases like
this one, which involve Board agent expressions of per-
sonal feelings to limited audiences rather than Board
agent fraternization with a representative of a party to the
election during the course of the election. The court
found the latter conduct much more likely than the for-
mer to raise a reasonable question about procedural ir-
regularity.
c. Conclusion
The message for Board agents in all of this should be
clear: stick to the business at hand, and do not express
personal opinions. After a thorough review of the cir-
cumstances of this case—the wide margin of the result,
the nature of the Board agent’s remarks (only one of
which was even arguably objectionable), the initiation of
the remarks by the observers, the very limited audience,
and the agent’s clear communication that his remarks
were his own personal opinion—we find insufficient
reason to set aside the election. To set the election aside
under these circumstances would serve only to frustrate
the free choice of the employees, whose votes would be
rendered a nullity even though the employees had noth-
ing to do with the Board agent’s misconduct and were
not even aware of it.

CHAIRMAN BATTISTA, dissenting from the result.
The Board’s election process is rightly called the
“crown jewel” of the Board’s endeavors. The election is
the place where the ultimate Section 7 choice is made,

Board agent’s broadly disseminated statement that misled many of the
employees to believe that the employer had lied to them about not
being permitted to grant certain raises. In Renco Electronics, 330
NLRB 368, 368 (1999), a Board agent gave voting instructions that
could reasonably cause employees to believe that the Board agent was
speaking for the Board and that the Board wanted the employees to
vote “Yes.” In Hudson Aviation Services, 288 NLRB 870, 870 (1988),
the Board agent got into a heated argument with the employer’s assis-
tant manager in the polling area and communicated the impression that
the Board was displeased with and was criticizing the assistant man-
ager. Finally, in Glacier Packing, 210 NLRB 571, 573 (1974), the
Board agent yanked a “Vote Neither” pin off the lapel of an employer
election observer during polling, shouted “shame on you” at her in front
of voters, shouted at the employer’s personnel director in front of the
employees, and then followed him for approximately 70 yards while
employees clapped, laughed, made catcalls, and pointed their fingers at
him. Here, the Board agent engaged in no conduct even remotely simi-
lar to the conduct of the Board agents in these cases.
SONOMA HEALTH CARE CENTER 937
and the Board goes to extraordinary lengths to see to it
that the election is conducted in a fair and impartial man-
ner.
Today, the crown jewel has been tarnished. Worse, it
has been tarnished by the actions of the Board’s own
agent. And, worse still, the Board puts its imprimatur on
the result. I would preserve the crown jewel. I therefore
dissent.
The facts are not in dispute. On election day, during
the first polling period, the Employer’s observer,
Yolanda Gonzalaz, overheard the Union’s observer, Juan
Lopez, ask the Board agent why companies do not like
unions. The Board agent responded: “[C]ompanies don’t
like unions because they cannot fire or hire anyone, and
they cannot take benefits from the staff.” Gonzalaz also
heard Lopez tell the Board agent that the Employer paid
$60,000 to campaign consultants. The Board agent re-
plied, “[W]hoa, $60,000.” Finally, later that day, just
prior to the second voting period, Gonzalaz asked the
Board agent why he answered Lopez’ question that
morning. The Board agent stated, “I can just give my
opinion because I’m not going to vote.”
In my view, the Board agent’s remarks were wholly
inappropriate. The Board agent stated his view that em-
ployers do not like unions because employers wish to be
unrestrained in their ability to fire employees and take
away benefits. Similarly, by responding, “[W]hoa,
$60,000,” the Board agent sent a message that employers
are willing to spend lavishly to defeat a union. Finally,
the Board agent’s last comment was that he could give
his opinion because he was not going to vote. He thereby
indicated that he was entitled to express his partisan
opinions. Of course, he was entirely wrong in this re-
spect, as were the expressions themselves.
In sum, the Board agent did not observe the quintes-
sential element of strict neutrality. The remarks cast
doubt on the impartiality of the agent, the agent’s princi-
pal (the Board) and the election being conducted under
Board auspices. Such conduct cannot be tolerated.
Members Liebman and Walsh concede that the first re-
mark was “inappropriate” and “ill advised.” They further
concede that the remark showed a “lack of appreciation
of the need for Board agents to maintain professional
distance from the parties while conducting official
agency business.” Members Schaumber and Meisburg
conclude that the Board agent’s remarks were “intemper-
ate,” and “inappropriate,” and they further concede that
one remark was “partisan.” Despite all of this, all four of
my colleagues uphold the election as if nothing hap-
pened.
The Athbro case,1 cited by my colleagues, is the guide-
post. Between voting sessions in that case, the Board
agent went to a bar and drank a beer with a union repre-
sentative. The only employee who saw this had already
voted, and he did not report it to any other employee dur-
ing the election. The union won the election. The Board
set the election aside. The Board said:

The Board in conducting representation elections must
maintain and protect the integrity and neutrality of its
procedures. [Id.]

The Board said that in cases involving Board agent
conduct the test is whether the Board agent’s conduct
“tends to destroy confidence in the Board’s election
process or . . . could reasonably be interpreted as im-
pugning the [Board’s] election standards.”2 Moreover,
“[t]he appearance of a compromise of Board neutrality
will warrant setting aside an election even if the Board in
fact remains neutral.”3 In short, the “Board’s role in
conducting elections must not be open to question.”4
Members Liebman and Walsh, in an effort to get
around Athbro, note that the election margin was slim in
that case. That is true, but that fact had nothing whatever
to do with the rationale for the Board’s decision. Indeed,
inasmuch as only one employee was involved, and he
had already voted, the election result was not affected by
the Board agent’s conduct. To the contrary, the Board
conceded that “the Board Agent’s conduct did not affect
the votes of employees.” In essence, the Board held that
it is the insult to the process, not the particular election
result, that matters.5

1 Athbro Precision Engineering Corp., 166 NLRB 966 (1967).
2 Id. at 966; accord: Glacier Packing Co., 210 NLRB 571, 573
(1974).
3 NLRB v. State Plating & Finishing Co., 738 F.2d 733, 740 (6th Cir.
1984); see Hudson Aviation Services, 288 NLRB 870, 870 (1988) (set-
ting aside election where conduct of Board agent “undermined the
indispensable perception of Board neutrality in the election”).
4 Renco Electronics, 330 NLRB 368, 368 (1999); Glacier Packing,
210 NLRB at 273.
5 Members Schaumber and Meisburg “concur generally” with my
discussion of the standard in Athbro and join with me to “reaffirm” that
standard today. Inexplicably, however, they do not set aside the elec-
tion, noting the margin of victory and the value of the free and unco-
erced choice of employees. I, too, believe that the results of an election
should not be set aside lightly. However, as to the margin of victory,
Athbro itself makes plain, and my colleagues recognize that “the impact
of Board agent misconduct on an election’s outcome is not determina-
tive under Athbro. As to the value of a free and uncoerced choice of
employees, I endorse that value. But another value of equal or greater
weight is the value of the Board’s reputation for neutrality. Indeed, that
is precisely the value recognized in Athbro where the election was set
aside even though it was found that no employee was affected by the
Board agent’s conduct. Presumably, my colleagues believe that the
margin of an election victory can be a make-weight for any injury the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
If anything, the instant conduct is worse than that in
Athbro. The conduct there was not at the polling site,
and the Board’s agent did not speak favorably for one
side or the other. Having a beer with a person does not
connote agreement with that person’s view. By contrast,
the conduct here was at the polling place itself, and the
Board agent expressed views against one of the parties.6
Members Liebman and Walsh rely on the general
standards of Safeway, Inc., 338 NLRB 525 (2002), for
determining whether an election should be set aside.
Where the case involves a party’s alleged misconduct, or
that of a private third party, the Board applies Safeway
standards. However, where, as here, the case involves
Board agent misconduct, a different standard applies.
For, in those cases, it is the integrity of the Board that is
in issue. And, as discussed above, the Board must be
satisfied that its own integrity is above reproach. That
special standard is set forth in Athbro, and that is the
standard to be applied here.
My colleagues also say that an overturning of the elec-
tion will render the employees’ votes a nullity, even
though the employees had nothing to do with the Board
agent’s misconduct. Of course, under Athbro, that is true
of every case involving Board agent misconduct. In es-
sence, the Board makes a judgment that its own integrity
requires that the employees vote again, this time in an
election that is free from taint.
Members Liebman and Walsh state that the election
will be valid absent actions that would reasonably create
the appearance that procedural irregularities will occur. I
disagree with that test, as do Members Schaumber and
Meisburg. In my view, the Board’s obligation, and that
of its representative, is to be completely impartial and to
refrain from giving the appearance of partiality. The
objecting party need not show that the Board agent
would actually tamper with the election itself, or that
employees would fear that he would do so. Athbro re-
quires no such showing. That is, there was no showing
there that the Board agent would tamper with the election
itself or that employees feared that he would do so.
Rather, the sole vice was that the Board agent engaged in
conduct “which tended to destroy confidence in the
Board’s election process, or which could reasonably be
interpreted as impugning the election standards [the
Board] seeks to maintain.” The Board held that “that

Board’s agent’s conduct might have on the appearance of Board neu-
trality. I would respectfully disagree.
6 Members Schaumber and Meisburg say that the conduct here was
“not as public” as the conduct in Athbro. In my view, it is at least as
bad, if not worse, for a Board agent to engage in the conduct at the
election site (where employees are present) than for an agent to do so at
a bar (where employees are not present).
conduct was itself a sufficient basis for setting aside that
election.” [166 NLRB at 966.]
Thus, even if there are no procedural irregularities in
the election itself, or fear of same, the election will be set
aside if the conduct “could reasonably be interpreted as
impairing the election standards [the Board] seeks to
maintain.” Clearly, neutrality and impartiality are the
very hallmarks of the Board standards that the Board
seeks to maintain.
My colleagues then seek to minimize the significance
of the Board agent’s remarks. Of course, they concede,
as they must, that the agent’s first remark was improper.
That remark itself undermined the standard of neutrality.
My colleagues’ effort to interpret the other two remarks
is of no avail. The obligation of the Board agent is to
refrain from comments that give “the appearance of a
compromise of Board neutrality.” (Emphasis added.)
See fn. 2, supra. Thus, even if the remarks could be in-
terpreted in a benign way, that is not sufficient to privi-
lege them.
In NLRB v. Dobbs Houses, Inc., 435 F.2d 704 (5th Cir.
1970), cited by Members Liebman and Walsh, is clearly
distinguishable. In that case, the Board agent offered the
prediction that the union would win the election, and
would be successful as a representative. That is a far cry
from the comments of the Board agent here who voiced
opinions favoring one side over the other.
The other cases cited by Members Liebman and Walsh
are also inapposite. In NLRB v. Allen’s I.G.A. Foodliner,
652 F.2d 594 (6th Cir. 1980), the Board agent’s comment
was that both the company and the union were just put-
ting on a show for the employees and that if the employ-
ees had been treated right, she (the Board agent) would
not be there holding an election. Based on these re-
marks, it was impossible to tell whether the Board agent
was favoring one side over the other. In Rheem Mfg.
Co., 309 NLRB 459 (1992), the Board agent was simply
complaining about the heat in the polling area; he was
not taking sides in the election. In Shorewood Manor
Nursing Home, 217 NLRB 1106 (1975), the Board agent
simply speculated about how to get his job with the
Board; he was not taking sides in the election.
Finally, it is no answer to say that the opinion was per-
sonal to the Board agent. The Board acts through its
agents. They are the ones with whom the public deals.
The Board agent was the Board’s only representative on
the scene. He alone was the “the Board” conducting the
election. In law and in fact, the agent is the Board. It is
therefore the duty of the Board agent to keep his personal
opinions to himself. Where, as here, that person ex-
presses a view favoring one party over the other, there is,
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at the very least, a reasonable tendency to undermine
confidence in the election process.
Conclusion
As noted at the outset, the Board’s crown jewel has
been tarnished. I would restore the luster by setting aside
the election. In that way, a new election, held with un-
questionable fairness and integrity, can be held. In short,
I would uphold the time honored Board tradition of un-
questioned neutrality in Board election proceedings.