Dawn Geske Jun. 28, 2016, 10:50am


WASHINGTON – Threats made by a nurse in Pennsylvania during a union election recently resulted in a court overturning the election results and providing a stern warning to the National Labor Relations Board (NLRB).

The U.S. Court of Appeals for the D.C. Circuit held the NLRB accountable for downplaying the threats and ignoring its own precedent, during a union election at ManorCare, a post-hospital nursing care provider in Kingston.

The 2013 election to join the union was held among the facility’s nurses’ aides and was a close race, with the union winning by a one-vote margin. During the election, two pro-union nurses “threatened to punch people in the face," “beat people up,” “destroy their cars” and “slash their tires” if the union didn’t win the election, according to court documents.

Although the nurses allegedly made the threats in a joking manner, some of the eight-to-nine employees at whom the comments were directed believed them to be more serious. As a result, ManorCare provided additional security at its facility for three days after the election.

ManorCare challenged the results of the election because of the comments, which the NLRB said were not serious enough to overturn the election results when the six-factor Westwood Hotel test was applied. The test is used for evaluating third-party threats during a campaign. Ultimately, the board dismissed the threats as “no more than bravado and bluster," according to the court. 

The D.C. Circuit disagreed with NLRB, saying it abused it discretion by failing to acknowledge its own precedent and discuss how the facts aligned with its own law. The court also said that NLRB has drawn a “firm line” that when threats are made an election can’t stand if this creates a “general atmosphere of fear and reprisal," making a free election impossible to have.

The court found the threats might have originated as jokes, but were found to be threatening and serious. It went on to say that these threats weighed against the results of the election, as one vote could have changed the results.

“The ruling effectively overturned the election," Bryan Bienias, attorney at Seyfarth Shaw LLP told the Pennsylvania Record.

“The court essentially held that the board’s certification of the election results, where the union prevailed by one vote, was flawed. The decision sends a pretty stern message to the NLRB that its precedent matters and that results-driven decisions that only pay lip service to legal tests will not be rubber-stamped by the court.”

Bienias said the court’s decision to overturn the results of the election was unusual.

"The courts of appeal provide a great deal of deference to the board, so it’s pretty unique for the court to overturn the results of such a close election, particularly one in which the union prevailed, primarily because the board failed to thoroughly analyze the objectionable conduct in light of existing board law," he said. 

The threats were made worse, the court said, because one of the nurses who made the comments had been in a knife fight, which her co-workers were aware of. 

“The fact that some employees did, in fact, take the threats seriously (even though heard through the grapevine), that the employer felt compelled to hire additional parking lot security because of the threats, and that one of the employees had previously been in a knife fight -- and had the visible scars to prove it -- made the threats all the more serious," Bienias said. 

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