The National Labor Relations Board has overturned a local NLRB ruling that called for a new unionization election after it was revealed that a pro-union employee had threatened to “start punching people in the face” if the union lost.
Manorcare, a Pennsylvania rehabilitative facility, challenged a September unionization vote after discovering that several pro-union workers had threatened to assault co-workers and vandalize cars during a contentious campaign. The Laborers International Union of North America (LIUNA) won the election 34-32.
The ruling came down in a 2-1 vote on April 29.
An NLRB investigation confirmed that pro-union employee Lucy Keating did in fact tell her co-worker, Harriet Robinson, “if the union did not get in and employees started complaining about their working conditions, she was going to start punching people in the face.”
The investigation also revealed that union supporter Juanita Davis told three co-workers that “if the union did not get in, she would do damage to people’s cars and cause bodily harm to employees who voted against the union.” While a local NLRB official found that the threats were grounds for a new election, the Obama-appointed board members ruled 2-1 that the threats did not amount to intimidation because Keating is short and Davis was “light-hearted.”
“The hearing officer found that the statement by the diminutive Keating, who had no history of violence, to the taller Robinson was flippantly made, and elicited a laughing response. Similarly, the hearing officer found that, in context, Davis’ statement [about vandalizing cars] was viewed as joking in nature,” the board ruled.
The board blamed Robinson, who opposed the union, for recounting the threats to other employees. NLRB Chairman Mark Gaston Pearce and board member Nancy Schiffer, both of whom are Democrats and former union attorneys, ruled that Robinson did not properly convey the “light-hearted” tone exhibited by the union supporters when she told co-workers about the threats.
“Because those additional employees were not in a position to judge how the original statements were intended—especially with respect to the threat to vehicles—or to determine that Keating and Davis would not have followed through on their ‘threats,’” the NLRB ruled. “We find that the employer failed to show that the employees’ conduct created a general atmosphere of fear and reprisal rendering a free election impossible.”
Board member Harry Johnson III, a Republican appointee, dissented from the decision, saying that threats to property and person, no matter the tone, can influence how employees vote. The threats could have swung the two-vote margin of union victory.
“There were no countervailing circumstances that would lend an objective observer to believe these comments were exaggerated or were intended in a joking manner. More fundamentally, whatever was actually said and in whatever manner, a significant number of employees were exposed to these threatening statements,” he said in a footnote.
The decision could set a bad precedent, according to labor watchdogs.
Patrick Semmens, vice president of the National Right to Work Foundation, said that using laughter to mask a threat provides Big Labor organizers with plenty of opportunities to engage in not-so-subtle acts of intimidation.
“Unfortunately the NLRB under Obama seems intent on brushing aside allegations of pro-union misconduct,” he said in a statement. “You can bet that if it were an employee that opposed the union that was telling people they’d start punching people in the face if the vote didn’t go their way, the board wouldn’t be so quick to laugh it off, especially if the vote that followed was a narrow rejection of the union.”
Semmens said the decision follows a pattern of increasingly pro-union decisions emerging from President Obama’s board, which has issued several controversial interpretations of labor law in recent years.
“It’s symptomatic of a bigger problem with the Obama NLRB, which sees itself as an agency whose mission is to promote unionization instead of protecting employee free choice,” he said.
LIUNA did not respond to requests for comment.