Case Summary and Outcome

The United States Court of Appeals for the District of Columbia Circuit held that threats of physical violence and property damage—against anyone who objected to voting in favor of unionization—were sufficient to compromise the conditions for a free and fair union election. In 2013, employees of ManorCare, a skilled-nursing facility, voted to elect the Laborers International Union of North America as their collective-bargaining representative. ManorCare learned that threats of violence and property damage had been made against anyone who would not support the union or objected to voting in favor of unionization. After a close election, the National Labor Relations Board certified the union over ManorCare’s objections. ManorCare filed a petition with the Court of Appeals challenging the Board’s order. The Court of Appeals found that the Board misapplied its own test for whether a threat had created a “general atmosphere of fear and reprisal” [p. 1] which would render a free election impossible. The Court held that the threats made were not casual, were disseminated widely, that the individuals were capable of carrying the threats out, and, given the narrow margin of the election result, it was likely that some employees may have acted in fear of the threats when casting their vote. The Court granted ManorCare’s petition and sustained its objections to the election.

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Facts

In the summer of 2013, the Laborers International Union of North America began organizing ManorCare employees, and the two entities agreed to conduct a unionization election for a limited unit of certified nurses’ aides. Prior to the election, two pro-union employees of ManorCare, Lucy Keating and Juanita Davis, made several threats to other ManorCare employees.

In the first incident, shortly after the election petition was filed, Keating expressed to another employee that “if the Union didn’t get in . . . she was going to start punching people in the face.” [p. 3] The employee relayed Keating’s comment to other employees during the days and weeks before the election.

In another incident, another ManorCare employee, Davis, yelled to a group of employees that “if the Union didn’t get in . . . she was going to start beating people up and destroying their cars.” [p. 3] Davis also told a co-worker that “if somebody voted no [on the union]. . . [she] was going to go after that person, and beat them up and then go after their cars.” [p. 4] It was widely known that Davis had been in violent altercations in the past. One employee was described as being upset, distraught, and nervous, on the day of the election as a result of the interaction. ManorCare hired additional security for the parking lot for the days following the election.

The election went forward, and the union won by a thin margin of 34-32. ManorCare objected to the results, claiming that Davis and Keating’s threats “destroyed the ‘laboratory conditions’ necessary for a fair and free election.” [p. 3] The National Labor Relations Board opened an investigation into the threats, and a hearing officer initially sustained ManorCare’s objection. The union appealed to the Board, which rejected the hearing officer’s findings and said that the threats were not so objectionable as to interfere with the election.

ManorCare then filed a petition in the United States Court of Appeals for the District of Columbia Circuit, challenging the Board’s order, and the Board filed a cross-petition to enforce it.

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Decision Overview

Judge Brown delivered the opinion for the Court of Appeals for the District of Columbia Circuit. The central issue the Court examined was whether threats issued by two pro-unionization employees—towards people who voted against unionization—rose to a level that undermined the ManorCare employee’s right to a free and fair union election.

ManorCare maintained that the threats made by Keating and Davis, which were circulated to other employees, “destroyed the ‘laboratory conditions’ necessary for a fair and free election,” [p. 3] and that therefore their objection to the election outcome should be sustained.

The National Labor Relations Board argued that the threats were casual in nature and circulated without their original context, creating a “game of telephone” which was an inappropriate basis for an objection against a union election.

The Court reviewed the Board’s findings under a deferential standard, under which they would only reverse if the Board’s decision was not “reasonable and consistent with applicable precedent.” [p. 7] The Court used the Board’s Westwood Hotel Horizons Hotel, 270 NLRB 802, 803 (1984) precedent in its analysis. The Westwood Hotel precedent uses six factors to determine “whether a threat is serious and likely to intimidate voters: ‘[1] the nature of the threat itself . . . [2] whether the threat encompassed the entire bargaining unit; [3] whether reports of the threat were disseminated widely within the unit; [4] whether the person making the threat was capable of carrying it out; . . . [5] whether it is likely that the employees acted in fear of [the person’s] capability of carrying it out; and [6] whether the threat was ‘rejuvenated’ at or near the time of the election.’” [p. 8] The Court examined each of these factors in turn.

First, the Court considered the nature of the threats. It determined that Keating and Davis had each “threatened physical harm and property damage to non-supporters of unionization.” [p. 8] Threats of punching people, beating them up, destroying their cars, and slashing their tires were, for the Court, “serious threats . . . clearly capable of changing the behavior of other voting members.” [p. 8] Accordingly, the Court held that by finding otherwise, the Board had misapplied its own precedent.

Next, the Court analyzed whether the threats encompassed the entire bargaining unit. It held that they did, because the threats “were indiscriminate in their focus, aimed not at any particular individual but instead at all of the voting employees ‘if the Union didn’t get in.’” [p. 9]

The Court next considered the third factor—whether the threats were disseminated widely. Here, the Court applied a relaxed standard in light of the close election results. The Court determined that the “eight or nine employees” who heard Davis’s statements, combined with the “around five” who heard Keating’s, satisfied the threshold given that it was an election “where only a single voter could have changed the outcome.” [p. 9]

The Court next considered the fourth factor—whether Keating and Davis were capable of carrying out their threats. It held that “[t]he record gives no reason to doubt that both Keating and Davis, but particularly Davis, were capable of delivering on the threatening statements they made.” [p. 10] The Court held that Keating was capable of carrying out her threat because “[m]ost people are physically capable of delivering a punch to another person’s face.” [p. 10] Furthermore, considering that it was “widely known” that Davis had previously been in fights and, “at the time of the election bore a hand injury resulting from a knife fight,” the Court reasoned that “[e]mployees would have had every reason to assume Davis could punch people and damage their cars.” [p.10]

Regarding the fifth factor, the Court determined that while the statements may not have been intended to induce fear, they had done so. The Court held “the fact that ManorCare hired parking lot security for three days following the election” was evidence that “employees experienced real fear.” [p. 10–11]

Finally, the Court dismissed the need to closely examine the sixth factor—whether the threats were “rejuvenated” at or near the time of the election—“because the threats occurred for the first time in close proximity to the election.” [p. 11] Thus, the Court held that the final factor of the test weighed in favor of ManorCare.

In addition to the Board’s errors in applying the Westwood Hotel factors, the Court emphasized that by concluding that the threats were merely jokes, the Board had “failed to follow its precedent in another way.”[p. 11]  The Court pointed out that the “test for determining whether a statement constitutes a threat is an objective one.” [p. 11–12] Hence, the Court reasoned, referencing Smithers Tire & Auto. Testing of Texas, Inc., 308 NLRB 72, 72 (1992), that the test does not seek to establish “the actual intent of the speaker or the actual effect on the listener, but ‘whether a remark can be reasonably interpreted by an employee as a threat.’” [p. 12] Thus, the Board’s dismissal of the threat for its casual and joking nature was inappropriate.

Finally, the Court agreed with ManorCare that it did not matter that the threats were disseminated by third parties. Again, relying on the Westwood Hotel precedent, the Court wrote that “the Board has made clear that ‘conduct disruptive or destructive of the exercise of free choice by the voters…regardless of whether the person responsible for the misconduct is an agent of a party to the election or simply an employee’ may warrant setting aside results and holding a new election.” [p. 12] As such, it was sufficient that Keating and Davis’s statements were addressed to, and disseminated among, enough ManorCare employees to potentially sway the outcome of the election.

Because the Board “arbitrarily departed from its own analytical framework,” [p. 17] the Court granted ManorCare’s petition and held that Keating and Davis’s threats had interfered with the election.

In a concurring opinion, Judge Srinivasan noted that “although one can conceive of ways to align the Board’s conclusion in this case with its prior decisions . . . the Board needed to do more to explain how its decision fit within its precedents, as indicated by the hearing officer’s reaching the contrary conclusion under those precedents.” [p. 3]

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