Employer Lawfully Refused to Bargain with Union

By R. Shane Kagan Jun 20, 2016

Threatening statements made by pro-union employees prior to a union election could justify the employer’s refusal to recognize or bargain with the union, and may result in the election results being overturned, according to the U.S. Court of Appeals for the District of Columbia Circuit.

In 2013, the Laborers’ International Union of North America began to organize the employees of ManorCare of Kingston (ManorCare), a skilled-nursing facility in Kingston, Pa. The union won a victory by only one vote. ManorCare objected to the election results, asserting that employees in favor of the union threatened to harm other employees, or their property, if they did not support the union. The regional director of the National Labor Relations Board (NLRB) ordered a hearing on the objections.

At the hearing, ManorCare’s employee-witness testified that a pro-union employee warned, “if the union didn’t get in ... that she was going to start punching people in the face.” The witness also testified that another pro-union employee said, “if the union didn’t get in that she was going to start beating people up and destroying their cars.” The pro-union employees denied making these statements.

The hearing officer sustained ManorCare’s objection to the election, and noted that the election was so close, “had just one voter” voted differently, “the [u]nion would not have prevailed in the election.” The perceived threats had prompted ManorCare to provide additional security for three days following the election. 

On appeal, the NLRB sided with the union, finding that “neither [threatening statement] rose to the level of objectionable third-party threats.” The board certified the union as the exclusive collective-bargaining representative of ManorCare’s employees. ManorCare refused to recognize or bargain with the union, and the union charged it with violating the National Labor Relations Act.  

On petition from ManorCare challenging the NLRB’s order to bargain, and the board’s cross-petition to enforce it, the D.C. Circuit agreed with ManorCare. In light of the six factors used to determine whether a threat is serious and likely to intimidate, the NLRB ignored its own precedent by finding the threats did not create a “general atmosphere of fear and reprisal,” the appeals court held.

“[P]unching people in the face” and “beating people up and destroying their cars” are serious threats that could be capable of changing the behavior of members of the bargaining unit, the court concluded. It was also widely known that one of the pro-union employees had been in fights in the past and, at the time of the election bore a hand injury resulting from an unrelated knife fight, the court noted.

One judge on the panel concurred with the decision of the court but stated she would have given the board an opportunity “to ground its decision in its prior cases and further explain its rationale for finding that a new election is unwarranted in the circumstances.”

ManorCare of Kingston PA LLC v. National Labor Relations Board, D.C. Cir., Nos. 14-1166, 14-1200 (May 20, 2016).

Professional Pointer: Employers should be aware of the conduct of and statements made by pro-union employees during a union election campaign, as coercive statements surrounding union elections, even those seemingly made in jest, can be a ground to set aside an election. After the election, an organization that determines that intimidation may have influenced a close union vote may not have an obligation to bargain with the newly elected union.

R. Shane Kagan is an attorney with Carmagnola & Ritardi LLC, the Worklaw® Network member firm in Morristown, N.J.


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