Employment Law Daily NLRB failed to follow own precedent in finding pre-election statements were not threats
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Tuesday, May 24, 2016

NLRB failed to follow own precedent in finding pre-election statements were not threats

By Kathleen Kapusta, J.D. The NLRB’s conclusion that statements made prior to a union election did not rise to the level of objectionable third-party threats was irreconcilable with its own precedent, ruled the D.C. Circuit, observing that the Board has drawn a firm line that an election cannot stand where the results do not reflect the employees’ free choice. Based on the Board’s own precedent, the court found that the third-party conduct at issue here was sufficiently disruptive to undermine the conditions necessary for a free and fair election. The employer’s petition for review was granted in part. Judge Srinivasan concurred in part and concurred in the judgment (ManorCare of Kingston PA, LLC, May 20, 2016, Brown, J.). Threats. The union began organizing the nursing facility’s employees in the summer of 2013 and by August, the parties agreed to conduct an election limited to a unit of CNAs. After the union won by a vote of 34 to 32, the employer claimed several employees had threatened harm if the union lost. Specifically, one employee allegedly threatened to start punching people in the face while a second threatened to beat people up and destroy their cars. Hearing officer. Sustaining the employer’s objection, a hearing officer found the statements created an atmosphere of fear and reprisal rendering a free election impossible. Further, while initially stated in a casual manner, they were repeated to other employees out of context, prompting the employer to provide additional security for three days following the election. Board. Rejecting the hearing officer’s findings, the Board recited the test for threatening statements laid out in its Westwood Hotel decision but then found that the threats were made by third parties and circulated without their original context. Relying on the vote tally without acknowledging the close decision, the Board certified the union as the exclusive collective bargaining representative. When the employer refused to recognize or bargain with the union, the Board found it in violation of NLRA Section 8(a)(5). The employer then filed a petition challenging the Board’s order and the Board filed for enforcement. Westwood Hotel. Concluding that the Board abused its discretion, the D.C. Circuit the six factors set out in Westwood Hotel for determining whether a threat is serious and likely to intimidate voters. Pursuant to the first factor, the nature of the threat itself, the court found that threats to beat people up and destroy their cars are serious, and if believed, would be clearly capable of changing the behavior of other employees. Indeed, observed the court, some of the statements were identical to those in Westwood Hotel. As to the second factor, whether the threats encompassed the entire barging unit, the court found they were indiscriminate in their focus and were aimed at all of the voting employees “if the union didn’t get in.” Applying the third factor, whether the threats were disseminated widely within the unit, the court noted that around 14 employees heard the threats and in an election as close at this one, the requirement of widespread dissemination was satisfied at the relaxed threshold. The fourth factor, whether the person making the threat was capable of carrying it out, was also satisfied as it was widely known that one of the threatening employees had been in fights in the past and at the time of the election bore a hand injury from a knife fight. And as to whether it was likely employees acted in fear of the speaker’s capability of carrying out the threat (the fifth factor), the court found that while the statements were probably not intended to induce fear to the audience who heard them, they were repeated to employees who were not in a position to judge how the remarks were intended. Further, that employees experienced fear was confirmed by the fact that the employer hired parking security for three days after the election. Turning to whether the threat was rejuvenated at or near the time of the election, the court found no need for rejuvenation here as the threats occurred in close proximity to the election. Rather than analyze these factors, the court pointed out that the Board “cursorily acknowledged its own precedent and then dismissed the effect of the threatening statements in a discussion too brief to demonstrate how the facts of this case” aligned with its precedent. Noting that it is the Board that must show its decisions are consistent with its precedent, the court explained that while its “standard of review is deferential, it is not meaningless.” Objective test. The Board failed to follow its precedent in another way, said the court, observing that its test for determining whether a statement is a threat is an objective one. The Board emphasized the “casual and joking nature” of the original comments, dismissing the threatening content as “no more than bravado and bluster.” But, said the court, while the employees may have intended their remarks in jest, it was reasonable for employees to interpret them as threats. “The objective standard demanded by the Board’s precedent requires assessing the threats according to what they reasonably conveyed, not what the speakers intended to convey,” the court explained. Challenge to Regional Director. The court rejected, however, the employer’s challenge to the legitimacy of the Regional Director’s election supervision. Although he was appointed during a period in time in which the Board lacked a quorum, the Board was properly constituted when the election took place and throughout the relevant review period. Further, the employer signed a stipulated election agreement in which it expressly consented to his oversight of the election. Concurrence. Writing separately, Judge Srinivasan asserted that the Board needed to do more to explain how its decision fit with its precedent. Asserting that he would have remanded the case to give the Board the opportunity to explain how its decision aligned with its precedent, he observed that: “In the end, although one can conceive of ways to align the Board’s conclusion in this case with its prior decisions, ‘[i]t is not this court’s role to supply post hoc justifications for the Board’s result; the duty to justify lies exclusively with the Board in the first instance.’”

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