National Labor Relations Board Member Brian Hayes submitted a vigorous dissent in a recently decided case about whether the results of a union certification election should be set aside because of third party threats made to employees during the pre-election period.
In Mastec Direct TV, 356 NLRB No. 110, the Board voted 2 to 1 to certify the union as the bargaining representative after receiving a majority of votes in a very close election victory (the union won by one vote). The conduct at issue included verbal threats by pro-union employees – third parties in Board parlance – to physically harm and sabotage the work of fellow employees if they did not vote for the union. The threats were made just days before the election.
Member Hayes agreed with the majority that the Board “must apply a more stringent standard for setting aside an election based on the conduct of persons who are not subject to an employer or union’s direct control.” He vigorously disagreed, however, with the majority’s interpretation and application of the third party misconduct standard announced in Westwood Horizons Hotel, 270 NLRB 802 (1984).
In Westwood, Member Hayes wrote, the Board set forth the following multifactor standard for determining whether an election should be set aside based upon third party misconduct:
“[W]hether a threat is serious and likely to intimidate prospective voters to case their ballots in a particular manner depends on the threat’s character and circumstances and not merely on the number of employees threatened. In determining the seriousness of a threat, the Board evaluates not only the nature of the threat itself, but also whether the threat encompassed the entire bargaining unit; whether reports of the threat were disseminated widely within the unit; whether the person making the threat was capable of carrying it out, and whether it is likely that the employees acted in fear of his capability of carrying out the threat; and whether the threat was ‘rejuvenated’ at or near the time of the election.” [Emphasis added; Westwood, 270 NLRB at 803].
The majority in Mastec Direct TV purported to apply this multifactor standard. But, according to Hayes, the majority in fact applied an even more difficult standard requiring an objecting party to show “widespread and aggravated misconduct.” (Emphasis added.)
“[T]here are few phrases in the Board’s lexicon that are more misleading,” Hayes wrote, “than the statement . . . that the test for objections to third party threats in an election campaign is ‘whether the misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.’” (Emphasis added, quoting Westwood). Hayes would abandon this “rote summary statement of the Westwood test, but not the multifactor test itself, which does not require that third party physical threats be pervasive in order to be objectionable.” (Emphasis added.)
Member Hayes explained that even one employee’s exposure to threats of physical violence could be enough to change the outcome of an election and that here, where at least five employees were exposed to threats of physical reprisal and the election was decided by only one vote, the election should have been set aside.
Member Hayes also took issue with the Board’s application of the Westwood test and its findings that the threatened employees did not actually fear physical harm because similar language was commonly used in the workplace and that there was no evidence that the pro-union employees were “in a position to make good on the threat[s].” Hayes stated:
“Unless the Board is going to impose on an objecting party the burden to prove that an employee making a threat has greater pugilistic skills or physical prowess than the threatened employee, and it has not heretofore imposed such a burden, then it seems an acceptable general proposition that third parties making physical threats are capable of following them through.”
Member Hayes’dissent raises serious and legitimate concerns regarding the Board's interpretation and application of the Westwood third-party misconduct standard to threats by fellow employees. Sadly, in today’s workplace employers and workers have every reason to take seriously any threats of violence from their own colleagues. Such threats have no place at work in any context, not the least of which during an NLRB sponsored election where the employees’ choice regarding union representation is to be protected from such intimidation and coercion.