NLRB Ignored Precedent and Pro-Union Threats, Should Have Set Aside Election: DC Circuit | Practical Law

NLRB Ignored Precedent and Pro-Union Threats, Should Have Set Aside Election: DC Circuit | Practical Law

In ManorCare of Kingston PA, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board (NLRB) ignored its own precedent, disregarded the impact that alleged employee threats had on other voting employees who were subjected to the threats, and failed to set aside a very close election in which the threats instilled fear in employees and destroyed the "laboratory conditions" necessary for a fair and free election.

NLRB Ignored Precedent and Pro-Union Threats, Should Have Set Aside Election: DC Circuit

by Practical Law Labor & Employment
Published on 31 May 2016 • USA (National/Federal)
In ManorCare of Kingston PA, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board (NLRB) ignored its own precedent, disregarded the impact that alleged employee threats had on other voting employees who were subjected to the threats, and failed to set aside a very close election in which the threats instilled fear in employees and destroyed the "laboratory conditions" necessary for a fair and free election.
On May 20, 2016, in ManorCare of Kingston PA, LLC v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the NLRB ignored its own precedent concerning factors to determine whether a threat is serious and likely to intimidate voters, and disregarded its precedent that the test for determining whether a statement is a threat is whether an employee can reasonably interpret the remark to be a threat. The NLRB failed to set aside a very close election in which the threats instilled fear in a number of voting employees and destroyed the "laboratory conditions" necessary for a fair and free election ( (D.C. Cir. May 20, 2016)).

Background

The Laborers International Union of North America began organizing employees of ManorCare of Kingston (ManorCare), a Pennsylvania nursing facility. The NLRB scheduled an election which the union won by a small margin. ManorCare objected to the election results, claiming that in the days leading up to the election, several employees had threatened to physically harm and damage the property of any employees who did not vote for the union. Employees reported and later testified about several of these threats. ManorCare argued that these threats instilled fear in many of the employees and destroyed the conditions necessary for a fair and free election. In response to threats of vehicular damage, parking lot security was hired for three days following the election.
The NLRB regional director ordered a hearing on the objections, and a hearing officer found that the statements were so aggravated as to create an atmosphere of fear that made a free election impossible. The union appealed to the NLRB.
The panel (Board) heading the NLRB's judicial functions:
  • Rejected the hearing officer's findings about the threatening statements.
  • Emphasized the hearing officer's conclusion that the statements were made in a light-hearted manner, and as a result, did not rise to the level of a third-party threat.
After the Board's decision, ManorCare refused to bargain with the union. The Board found that ManorCare violated the NLRA by unlawfully refusing to bargain (ManorCare of Kingston PA, LLC, 361 N.L.R.B. No. 17 (Aug. 11, 2014)). ManorCare filed a petition to the DC Circuit challenging the Board's order and the underlying rulings on its election objections, and the NLRB petitioned to enforce the Board's order.

Outcome

The DC Circuit:
  • Granted ManorCare's petition as to the Board's arbitrary departure from its own analytical framework and precedent for evaluating the allegations of third-party (here, employee) electoral misconduct.
  • Held that the election should have been set aside based on the intimidating conduct that may have altered the result.
  • Granted the Board's cross-application for enforcement in all other respects.
  • Rejected ManorCare's challenge to the regional director's appointment because the NLRB had a quorum on the date of the election.
The DC Circuit noted that:
  • The Board has firmly held in the past that an election cannot stand if the results do not reflect the free choice of the voting employees (General Shoe Corp., 77 N.L.R.B. 124, 127 (1948)).
  • A free election is deemed impossible if threats create a "general atmosphere of fear and reprisal" (Westwood Horizons Hotel, 270 N.L.R.B. 802, 803 (1984)).
  • Under Westwood Horizons Hotel, there are six factors to determine whether a threat is serious and likely to intimidate voters:
    • the nature of the threat itself;
    • whether the threat encompassed the entire bargaining unit;
    • whether reports of the threat were widely disseminated in the unit;
    • whether the person making the threat was capable of carrying it out;
    • whether it is likely that the employees acted in fear of the person's capability of carrying out the threat; and
    • whether the threat was rejuvenated near the time of the election.
    (270 N.L.R.B. at 803-04.)
  • The test for determining whether a statement is a threat is not the actual intent of the speaker, but whether an employee can reasonably interpret the remark to be a threat (Smithers Tire & Auto. Testing of Texas, Inc., 308 N.L.R.B. 72 (1992)).
  • The Board has previously stated 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 N.L.R.B. at 804).
The DC Circuit held that:
  • Analysis of the six Westwood Hotel factors indicated that the ManorCare election did not meet the free and fair standard set out in the Board's precedent. In particular:
    • the employees who made the threats made statements which clearly threatened physical harm and property damage to those who did not vote for the union;
    • the threats were aimed at all of the voting employees, in the event the union did not win the election vote. This was damaging to the free and fair election atmosphere;
    • the threats were disseminated widely within the unit, since at least eight employees heard about one employee's threat, and at least five heard about another employee's threat. The dissemination was widespread enough to affect the outcome of the election;
    • there was no reason to believe that the two individuals who made threats were not capable of following through on their threats;
    • the employees reasonably believed that the threats could be carried out, and likely acted in fear of the threatening statements. ManorCare's hiring of security was evidence that the employees feared that the threats were real and could result in damage; and
    • the threats did not have to be rejuvenated because they were made in close proximity to the election.
  • The Board provided too little analysis in dismissing the effect of the threatening statements and barely acknowledged its own precedent. Its analysis was too brief to demonstrate how the ManorCare facts align with Board precedent and did not give the circuit court enough substance to be able to evaluate the Board's conclusion.
  • The Board failed to follow its own precedent (Westwood Hotel, in particular) that hold a statement is a threat if an employee could reasonably interpret it to be one. The Board bypassed analysis and evidence of employees' subjective impressions of fellow employees' remarks when dismissing them as just jokes,. Even if the comments were made in jest, some employees reasonably interpreted the remarks as threats.
  • The Board ignored its precedent that states that it does not matter that the threats were disseminated by third parties (including voting unit employees). Also, the fact that some employees heard about the threats secondhand from other employees is irrelevant.
  • The Board, in its briefs, relied on several cases that were distinguishable from the facts in this case:
    • in Beaird–Poulan Division., Emerson Electric Co. v. NLRB, the challenged representation election was not overturned because the alleged incidents of misconduct constituted empty threats occurring over a lengthy election campaign (649 F.2d 589 (8th Cir.1981)). Here the threats were near the time of the election and believed by employees because of one of the speaker's knife-fighting reputation;
    • in NLRB v. Bostik Division, USM Corp., the US Court of Appeals for the Sixth Circuit found threats to be not more than banter among coworkers who "always kidded and joked around," and the objects of the alleged threats testified that they were not intimidated and voted against the union (517 F.2d 971 (6th Cir.1975)). Here, none of the threats were ordinary in the workplace or constituted banter the employees commonly participated in with the speakers; and
    • in Kux Mfg. Co. v. NLRB, the alleged threats were not widely disseminated (only heard by two people) and were not taken seriously (890 F.2d 804, 810 (6th Cir.1989)). Here, the remarks were disseminated widely enough that employees sought security from their employer.

Practical Implications

The NLRB has rarely set aside elections that unions have won, especially when employees rather than union agents undertook the purported objectionable conduct. This case will be useful precedent when an employer challenges a union-won election in which:
  • Employee-to-employee threats and gossip about those threats taint the laboratory conditions in which elections are intended to occur.
  • The NLRB summarily rejects the employer's election objections with little or no analysis of its precedent and asks a reviewing court to defer to its judgment in election matters. The DC Circuit points out that required deference to agency rulings and interpretations does not insulate skeletal Board analysis from scrutiny.