UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HEALTH CARE & RETIREMENT
CORPORATION, d/b/a Heartland of
Martinsburg,
Petitioner,
                                                                  No. 95-2493
v.

NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
                                                                  No. 95-2676
HEALTH CARE & RETIREMENT
CORPORATION, d/b/a Heartland of
Martinsburg,
Respondent.

On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board.
(5-CA-25281)

Submitted: August 30, 1996

Decided: November 4, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Thomas S. Giotto, John C. Pekar, KLETT, LIEBER, ROONEY &
SCHORLING, Pittsburgh, Pennsylvania, for Health Care. Frederick
L. Feinstein, General Counsel, Linda Sher, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel, Paul J.
Spielberg, Deputy Assistant General Counsel, Jill A. Griffin,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
NLRB.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

I.

This case comes before us on direct appeal from a decision and
order of the National Labor Relations Board (Board). Health Care &
Retirement Corporation, d/b/a Heartland of Martinsburg (Heartland),
petitions for review of the Board's final order that Heartland engaged
in unfair labor practices in violation of §§ 8(a)(1) and (5) of the
National Labor Relations Act (NLRA), 29 U.S.C.A.§§ 158(a)(1) and
(5) (West 1970 & Supp. 1996). The General Counsel has filed a
cross-petition for enforcement of its order. We find the order sup-
ported by substantial evidence and grant enforcement.

Heartland is a 120-bed nursing home located in Martinsburg, West
Virginia. In July 1993, Heartland employees elected District 1199, the
Health Care and Social Services Union, SEIU, AFL-CIO (Union) as
their representative. After a hearing, the Board certified the Union as
the exclusive collective bargaining representative of all full-time and
part-time service and maintenance employees at Heartland, including
certified nursing assistants (CNAs).

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In May 1995, the General Counsel issued a complaint alleging that
Heartland refused to bargain with the Union and to provide requested
relevant information. The Board granted summary judgment to the
General Counsel and concluded that Heartland had engaged in unfair
labor practices. Heartland filed a timely petition in this court for
review of the Board's decision. The General Counsel filed a cross-
petition for enforcement of the Order.

II.

The results of a Board-supervised representation election are pre-
sumptively valid. N.L.R.B. v. Columbia Cable T.V. Co., 856 F.2d 636,
638 (4th Cir. 1988). This presumption can be overcome only by "spe-
cific evidence not only that the alleged acts of interference occurred
but also that such acts sufficiently inhibited the free choice of
employees as to affect materially the results of the election." Id. at
638 (quoting N.L.R.B. v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th
Cir. 1987)). As the objecting party, it is Heartland's burden to show
that the challenged activity prejudiced the outcome of the election.
See N.L.R.B. v. Manufacturer's Packaging Co., 645 F.2d 223, 225
(4th Cir. 1981). Significantly, if the Board's certification decision is
reasonable and based on substantial evidence in the record as a whole,
then our inquiry is finished. Hydrotherm, 824 F.2d at 334 (quoting
N.L.R.B. v. Klingler Elec. Corp., 656 F.2d 76, 85 (5th Cir. Unit A July
1981)); see Universal Camera Corp. v. N.L.R.B. , 340 U.S. 474
(1951). Assessing the validity of a representation election "is within
the sound discretion of the Board, and the Board should be reversed
only when it has abused its discretion." Manufacturer's Packaging
Co., 645 F.2d at 225.

Because Heartland admits that it refused to bargain with the Union
or provide it with the requested information, the sole issue presented
is whether the Board acted within its discretion in overruling Heart-
land's objections and certifying the Union.

A.

First, Heartland contends that pro-union activity by the LPNs
fatally tainted the election. The record reveals that once they were
informed that they were considered supervisors, most of the LPNs

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advised the CNAs of their status and stopped participating in the cam-
paign. Only three LPNs continued to speak to the CNAs in favor of
the Union. All were reported to have stated that the Union would be
beneficial to employees and that they hoped the union would be voted
in.

The Hearing Officer found and the General Counsel concedes that
the LPNs are supervisors of the CNAs. Therefore, the sole issue pres-
ented with respect to the LPNs is whether their pro-union activities
coerced the CNAs into supporting the union out of fear of future retal-
iation by the LPNs or with the hope of reward. Pacific Physicians
Serv. d/b/a U.S. Family Care San Bernardino, 313 N.L.R.B. 1176
(1994), enforced, 70 F.3d 638 (D.C. Cir. 1995). In determining
whether supervisors' conduct could reasonably tend to coerce em-
ployees, the Board considers both the extent of the supervisors'
authority and the extent of their pro-union activity. Cal-Western
Transp., 283 N.L.R.B. 453 (1987), enforced , 870 F.2d 1481, 1484
(9th Cir. 1989).

The Hearing Officer, affirmed by the Board, reasonably concluded
that the remarks at issue were simply general statements pointing out
the possible benefits of union representation and contained no intima-
tion of reward or punishment for supporting or refusing to support the
Union. Likewise, LPN Wiltshire's participation in a mass Union
march, even combined with the other comments described above,
simply did not suffice to prejudice the election. We therefore hold that
the Board's finding that the LPNs' pro-union conduct was not objec-
tionable is supported by substantial evidence.

B.

Heartland also maintains that Union organizer Robin Ball and
Union organizing committee member Sharon Hudson engaged in pre-
election behavior which inhibited employees' free choice in the elec-
tion. The record reveals evidence concerning three incidents involv-
ing Ball which Heartland contends were objectionable. Two incidents
involved Union marches on the facility in which heated words were
exchanged between Ball and Heartland management.

The third incident took place eight days before the election in the
parking lot of Heartland's facility. Ball and up to thirty Union sup-

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porters marched on the facility and confronted management in
another heated encounter. When a security guard placed his hand on
a stun gun and denied entry to a Union supporter, Ball stated that she
could act like a bitch if provoked, and that if the guard used his gun,
she would return on election day with 500 mineworkers in support of
the Union.

Heartland contends that Ball's statement concerning the mine-
workers created an atmosphere of fear and intimidation because
Heartland's employees were well aware of an incident that took place
at another nursing home in West Virginia in which miners helped
strikers take over the facility, allegedly causing damage and resident
deaths. However, it is not clear from the record who even heard this
comment. No evidence established that the remark was heard by unit
employees or that non-unit employees heard the comment and dis-
seminated it to others eligible to vote.

Also during the campaign, Union organizing committee member
Sharon Hudson commented to the husband of a Heartland worker out
on worker's compensation that his wife should mind her own business
when it came to the election because Hudson and others knew that the
worker went dancing as "therapy" for her knee injury. Hudson testi-
fied that this comment was made in jest. Noting that there was no evi-
dence that Hudson was a Union agent, the Board evaluated the
alleged threat under the standard for alleged third party misconduct:
whether the threat created a general atmosphere of fear and reprisal
rendering a free election impossible. See Westwood Horizons Hotel,
270 N.L.R.B. 802, 803 (1984). The Board correctly found that Mal-
lot's "dance therapy" was apparently a matter of common knowledge
that was disseminated by Mallot herself. Therefore, the Board rea-
soned, the possibility of the management or others finding out about
her activity could not be considered a true threat, since her method of
therapy was not a secret.

The last series of conduct at issue is that of Alonzo Macali, the hus-
band of a former Heartland employee who was discharged in 1992.
After his wife's discharge, Macali came to Heartland with a video
camera and videotaped several times, both before and during the elec-
tion campaign.

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Videotaping or photographing of employees may be objectionable
conduct sufficient to set aside an election depending on the circum-
stances. Heartland maintains that Macali aligned himself with the
Union and was a Union agent when he videotaped employees inter-
acting with Union agents during the campaign. Common law princi-
ples of agency apply in determining whether an individual is acting
as the Union's agent for purposes of the NLRA. Alliance Rubber Co.,
286 N.L.R.B. 645 (1987). Authority of an agent to act may be implied
or apparent. 29 U.S.C.A. § 152(13) (West 1970 & Supp. 1996). Here,
the issue is whether Macali's actions were attributable to the Union
under the doctrine of apparent authority. Apparent authority is created
"through a manifestation by the principal to a third party that supplies
a reasonable basis for the latter to believe that the principal has autho-
rized the alleged agent to do the acts in question." Service Employees
Local 87 (West Bay Maintenance), 291 N.L.R.B. 82, 82-83 (1988)
(citing N.L.R.B. v. Donkin's Inn, Inc., 532 F.2d 138 (9th Cir.), cert.
denied, 429 U.S. 895 (1976), and Alliance Rubber Co., 286 N.L.R.B.
at 646 n.4).

Substantial evidence in the record supports the Hearing Officer's
conclusion that Macali was not an agent of the Union. The evidence
shows that Macali supported the workers but was not on the Union
organizing committee. He passed out literature but did not wear
Union paraphernalia. Macali was not invited to the marches and was
not directed by the Union to take videos.* While Union organizing
committee member Hudson did testify that she watched the tapes
because she liked watching the progress of the campaign, there is no
evidence in the record that employees were aware of this. Further,
Macali did not appear with Union organizers alone during their indi-
vidual visits to the facility. Rather, Macali appeared at Heartland for
mass demonstrations with other nonemployee Union supporters. As
correctly noted by the Hearing Officer, such generalized Union con-
duct does not establish apparent authority and thus agency status. To
conclude otherwise would mean that anyone who handed out litera-
ture of a party to any election would be deemed an agent of that party.
_________________________________________________________________
*The record supports the conclusion that the Union did not exercise
control over Macali's videotaping. Union supporter Hudson testified that
"[u]s workers we didn't object and Robin[Ball] felt that since it was us,
she didn't have any right to say anything about it."

                     6
Millard Processing Servs., Inc., 304 N.L.R.B. 770 (1991), enforced,
2 F.3d 258 (8th Cir. 1993), cert. denied, 510 U.S. 1092 (1994); see
NLRB v. Herbert Halperin Distrib. Corp., 826 F.2d 287, 290-91 (4th
Cir. 1987) ("The Act . . . encourages a free-wheeling debate during
the election process. Not [everyone] who supports the union or speaks
in its favor is a Union agent").

Because Macali was not an agent of the Union, the proper inquiry
for assessing the impact of his third-party conduct on the election is
whether Macali's actions could reasonably have created a general
atmosphere of fear and coercion that made free choice impossible.
Pepsi-Cola Bottling Co., 289 N.L.R.B. 736 (1988). We find substan-
tial evidence supports the Hearing Officer's conclusion that Macali's
actions did not. The evidence showed that Macali began videotaping
at Heartland well before the election campaign, and Sharon Hudson
testified that Macali videotaped as a hobby. There is no evidence that
the tapes were used for reprisals. On two occasions, both before the
election campaign, Macali used profanity and made threats to Heart-
land employees. Heartland contends that Macali's odd pre-campaign
behavior tainted the campaign because of his later support of the
Union. On the contrary, the evidence suggests that if anyone feared
Macali it was due to his behavior beginning prior to the campaign,
evidently fueled by anger at his wife's discharge. His personally moti-
vated concerns were not sufficiently tied to the Union to exert the spe-
cific coercion alleged by Heartland. We agree with the Hearing
Officer that the evidence was insufficient to establish that Macali's
conduct created an atmosphere which made free choice in the election
impossible.

Even considered cumulatively, the evidence of misconduct in this
case has not been shown to have prejudiced the election. We therefore
hold that the Board's decision is consistent with the law and is sup-
ported by substantial evidence in the record. For that reason, the
Board's decision finding Heartland engaged in unfair labor practices
is affirmed, and the petition to enforce is granted. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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