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Threats (And Rumors of Threats) Sufficient to Overturn Union Election


ManorCare of Kingston PA, LLC v. National Labor Relations Board - United States Court of Appeals for the District of Columbia Circuit


Facts:  In 2013, the Laborers International Union of North America, Local 1310 began to organize the employees at ManorCare of Kingston ("ManorCare").  In August, ManorCare and the union reached an agreement to conduct an election limited to a unit of certified nurses' aides.  The election was to occur on September 6, 2013 and the union ultimately won a narrow victory (34 in favor, 32 against).  ManorCare subsequently objected to the election results a week later on the grounds that several employees eligible to vote in the election threatened to physically harm other employees and their property.  

Several incidents were alleged by ManorCare to challenge the election.  One instance occurred between two nurses (Harriet Robinson and Lucy Keating) on a smoke break shortly after the election petition was filed.  Robinson stated that Keating told her "if the Union didn't get in...if we [the other nurses] started bitching[,] that she was going to start punching people in the face."  Keating denied making the statements.  A second instance occurred the day before the election.  Robinson was walking with three other nurses in the parking lot when one of the nurses, Juanita Davis, started yelling that "if the Union didn't get in that she was going to start beating people up and destroying their cars."  Another nurse stated that Davis had said she would slash tires if any of the nurses voted no for the Union.  On the morning of the election, Robinson and another nurse reported to a supervisor the comments Davis previously made.  Davis denied making any threats but admitted saying "if you voted no then you shouldn't complain about, you know, whatever happens after that."

A hearing officer sustained ManorCare's objections to the election on the grounds that the comments by Davis and Keating were "so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible."  The union appealed to the Board who found that the alleged comments were made in a casual or light-hearted manner and therefore did not amount to objectionable third party threats.  ManorCare subsequently refused to recognize or bargain with the union.  The Board agreed with the union and held that ManorCare violated the national Labor Relations Act.  ManorCare subsequently filed a petition in the United States Court of Appeals for the District of Columbia Circuit challenging the Board's order.

Holding:  The Court began its analysis with a nod to longstanding Board precedent that an election cannot stand where the results do not reflect the employees' free choice.  In a situation where threats create a "general atmosphere of fear and reprisal", a free election is impossible.  To provide some guidance, the Court further noted that threats interfere with a free election when they are "serious and likely to intimidate prospective voters to cast their ballots in a particular manner."  

The fact that the comments made by Keating and Davis might have originated as jokes did not control the analysis.  Instead, the Court turned to six factors laid out in the Board's opinion from Westwood Horizons Hotel to determine if a threat is serious and likely to intimidate voters.  The fact that the Board applied an objective standard to the analysis weighed in favor of interpreting the comments based upon what they reasonably conveyed, rather than what the speakers might have intended.  In this instance, the facts demonstrated that several of the nurses who heard of or learned about the statements felt threatened.  When the Court looked at the statements (about "punching people in the face", "beating people up and destroying their cars", and "slashing tires"), it held that application of the six Westwood factors led to a conclusion that the statements were threatening and therefore disrupted the union election.

Judgment:  The United States Court of Appeals for the District of Columbia Circuit granted ManorCare's petition and invalidated the union election results on the grounds that third party conduct occurred leading up to the election such that it disrupted and undermined the conditions necessary for a free and fair election to occur.

The Takeaway:  This was one of the more interesting cases I have come across recently.  It reminded me of an article I wrote back in November dealing with the "Labor Dispute" Exemption being removed for unions in Pennsylvania.  (That update dealt with a bill that Pennsylvania Governor Tom Wolf signed into law which would removed a loophole that allowed unions to stalk, harass, and even use a weapon of mass destruction, if done so in coordination with a labor dispute, and avoid criminal charges.  Yes, unions used to avoid criminal charges for doing that in Pennsylvania...).  This case was interesting in so much that the Court applied the six factors from the Board's own decision in Westwood to come to the conclusion that the threats (and rumors of threats were sufficient to overturn the union election.  As a few others have noted, how would the Board have handled this situation if it were management making these threats leading up to a union election?!?

Majority Opinion Judge:  Judge Brown

Date:  May 20, 2016

Opinion:  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwicwv7C9YnNAhVDRFIKHTESBr4QFggcMAA&url=https%3A%2F%2Fwww.cadc.uscourts.gov%2Finternet%2Fopinions.nsf%2FCB73764FCD43A04685257FB900514709%2F%24file%2F14-1166-1614284.pdf&usg=AFQjCNEmbEarHnfEPAtH2y9z_QzmSVO1_w&sig2=6TIM-XxTl2mShQBN8PHtNw&bvm=bv.123325700,bs.1,d.aXo

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