Employment Law Daily Using election observer who was just fired for brandishing life-like toy gun didn’t taint union election
Thursday, March 8, 2018

Using election observer who was just fired for brandishing life-like toy gun didn’t taint union election

By Marjorie Johnson, J.D.

The NLRB did not unreasonably discount two threats that an employer claimed tainted a union election—an alleged threat to call ICE if the union lost the election, and the union’s use of an election observer who had been fired four days earlier for threatening conduct involving an “airsoft” gun. Affirming the Board’s determination that the employer violated the NLRA by refusing to recognize the union, the D.C. Circuit held that because there was no evidence connecting the discharged employee’s behavior to the election or to the union itself, or that the union was responsible for any ICE threats that could potentially coerce employees to vote for it, the Board did not abuse its substantial discretion in certifying the election results (Equinox Holdings, Inc. v NLRB , March 6, 2018, Silberman, L.).

The employer filed objections after the union won an election covering employees working at three of the employer’s gyms. The hearing officer rejected the employer’s objections and the Regional Director certified the union’s victory. A divided NLRB denied the employer’s request for review.

Threat to call ICE? The employer had produced testimony that an employee threatened to call ICE if the union lost. The hearing officer declined to credit the testimony, finding only rumors among the employees concerning the possibility of ICE’s involvement. The Regional Director concluded that the hearing officer reasonably discredited the testimony, and the Board affirmed. The D.C. Circuit agreed, rejecting the employer’s “rather weak” claim regarding the prospect of ICE’s involvement. While the Board has been “sensitive to threats of deportation in an election campaign,” there was no evidence that the union was responsible for any threats that could potentially coerce employees to vote for it. Thus, the appeals court found, the hearing officer did not unreasonably discredit the employer’s witness.

Weapon at work? “More troublesome,” however, was the union’s election observer. Four days prior to the election, a manager was told that this employee had brought a gun to work. After checking his bag and finding what he believed to be a gun, the manager escalated the matter and called 911. When the police arrived, they handcuffed the employee and led him through the facility, during which time he yelled profanities about the employer. Upon closer inspection, the police realized that the weapon was a replica “airsoft gun,” which is a toy weapon used to propel plastic pellets that can inflict pain, and closely resembles a real firearm. The police then released him from handcuffs and escorted him out of the building. He was subsequently terminated.

Fired worker an election observer. Three days after the arrest, and the day before the election, the union hired the employee to make calls on its behalf in the final days of the campaign. It also chose him to serve as its election observer at one of the gyms (but not where he had brought the airsoft gun). Each voter was required to self-identify to him before receiving a ballot.

In its objections to the election, the employer claimed that the employee had shown the firearm to coworkers, threatening that he carried it for anyone who “f**ked with him.” A manager also testified that a coworker had complained that he was “always waving it around,” and had once brandished it in the lunchroom and declared that he carried it “in case any f*kers want to get crazy.” The coworker refused to give a written statement, however, purportedly because he feared retaliation by the union. The employer subpoenaed him to testify at the hearing, but he refused to enter the room and the hearing officer declined to enforce the subpoena and force his testimony.

Election stands. The hearing officer held that the evidence of the employee’s behavior was insufficient to warrant overturning the election, finding that the manager’s testimony about the coworker’s account of the lunchroom encounter was “uncorroborated hearsay,” which was “especially troubling” since two other witnesses were not called to testify. The hearing officer also emphasized the lack of evidence establishing that the employee was a union agent at the time of the incident or tying his possession of the gun to the union’s organizing campaign. Affirming, the Regional Director had agreed that because the gun incident could not “reasonably be linked to the election,” the decision not to delay the proceedings in order to enforce the subpoena was harmless.

Dissenting from the NLRB’s decision denying the employer’s request for review, Member Miscimarra believed that the use of the employee as an observer so soon after his arrest and alleged brandishing incident was sufficiently egregious to set aside the election. However, the majority found the hearing officer’s adverse inference against the employer for failing to call any other witnesses to be reasonable. The majority also emphasized that there was no evidence linking the employee’s possession of the airsoft gun to the union or the organizing campaign.

No connection to election. The appeals court rejected the Board’s assertion that the discharged employee’s alleged behavior was wholly irrelevant to his status as an election observer. However, there was no evidence that connected his possession of the gun with the election or the union campaign. Therefore, it was within the Board’s discretion to determine that the union’s use of the discharged employee as an observer was not objectionable.

Nor did the employer show that the hearing officer had unreasonably refused to enforce its subpoena of the coworker who could testify as to what the employee had said. The employer never asserted that the coworker would testify that the employee had linked the gun to the union campaign or election. Thus, the Board did not abuse its discretion in certifying the election results.

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