Threats, and rumors of threats, enough to overturn union election, court says

Do you know the difference between an idle threat and a serious one?

Your kid plays a joke on you, and you respond, "I'm gonna kill you" while laughing at the joke. Idle threat, or serious?

Cleared for release by Joint Staff Public Affairs
"A good bully communicates threats in the sweetest way."

A co-worker tells you she will slash your tires if you vote against the union. Idle threat, or serious?

A co-worker tells you that she heard from another co-worker that yet another co-worker said she would slash the tires of anyone who voted against the union. Idle threat, serious threat, or idle gossip?

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned a union election victory last week because two union supporters allegedly threatened physical and property damage to employees who did not support the union. Many of the employees at the facility heard about the alleged threats second-hand. The union won the election by only two votes, and the Court said that the employee threats might have affected the outcome. Accordingly, the employees will get a new election.

Full disclosure: The employer in this case was represented by my law partners Cliff Nelson and Chuck Roberts. (Way to go, guys!)

The employees who heard the threats apparently did not take them seriously at first, but on reflection became concerned that they were genuine. It probably didn't help that one of the alleged bullies had a scar on her hand from a previous knife fight.

The D.C. Circuit decision overruled two prior decisions from the National Labor Relations Board, which had found that the threats were not enough to warrant a new election and that ManorCare unlawfully refused to bargain with the union after the election. Regarding the threats, the NLRB had also said that it was not going to overturn an election based on a "game of telephone."

Do you think the NLRB would have been that flip if it had been rumors about threats allegedly made by a supervisor? Doubtful.

Image Credit: From Wikimedia Commons. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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