Union elections are supposed to be conducted in an atmosphere free of threats and coercion. This allows employees to make a free and informed choice about whether they want a Union to represent them for purposes of collective bargaining. Given these principles, therefore, even a labor professional might be surprised at a recent decision from the NLRB.

The Laborers International Union narrowly won a vote at a nursing home. During the campaign, however, two employees who supported the union made threatening comments to other employees. One employee stated that if the union did not get in and employees started complaining about the working conditions she was going to start punching people in the face. Another employee stated that if the union did not get in, she would damage other people’s cars and cause bodily harm to employees who voted against the union. 


In rejecting the employer’s attempt to set aside the results of the election, the NLRB noted that both of these statements were “made in a casual and even light-hearted fashion.” One comment was made by a “diminutive” employee towards a “taller” employee and was made “flippantly” and elicited a “laughing response.” The other comment was similarly viewed as “joking” in nature. Not even the repetition of the second employee’s comments to other employees, who would not have been in a position to judge the claimed intent of the original statements, were sufficient to set aside the results of the election. 


The NLRB majority held that the employer failed to show that the conduct of the union-supporting employees created a “general atmosphere of fear and reprisal rendering a free election impossible.” At worst, the NLRB felt the comments were “no more than bravado and bluster” by employees who were not agents of the union.  Thus, the NLRB affirmed the union’s election win.


Member Johnson (R) dissented. The statements, as they were repeated to others not present for the original conversation, were threats to person and property. Because the statements were repeated, a significant number of employees heard about these statements. Given the impact of the statements, the original intent of the speakers was not relevant.  Member Johnson also noted the closeness of the vote (the union won by just two votes) in reaching his conclusion that the election should be invalidated. 


For the labor professional, the case is a stark reminder that the distinction between employees who are agents of the union and employees who are not is an important one. The case would likely have turned out differently had these pro-union employees been sufficiently identified with the union that they were acting on the union’s behalf. Because they were not union agents, an issue that the employer did not appear to dispute, the employer carried a significantly heavier burden to justify setting aside the election.