Union bias permeates the actions of the current National Labor Relations Board (NLRB). This is hardly surprising since a former union lawyer, Richard Griffin, holds the powerful position of Board General Counsel and a majority of Board members have a pro-union background.
But however significant the pro-union bias is at the NLRB, the members should still be able to uphold basic elements of the National Labor Relations Act. The NLRB’s predisposition to favor labor unions should not override their duty to impartially enforce the Act.
One duty of the Board is to ensure employees are free to self-determine their own representation. Part of that requires “free and fair elections.” Any observer of the Board knows that the current NLRB members take this duty extremely seriously when there is anti-union animus, which could impact the results of an election. However, pro-union threats do not receive as harsh of scrutiny from the NLRB.
In 2013, the Laborers International Union of North America (LIUNA) began organizing certified nurse’s aids at Manorcare, a nursing facility in Pennsylvania. LIUNA won a closely contested election 34-32. Manorcare challenged the election results because several workers testified that they were threatened by pro-union employees.
One employee, Amy Kovac said, her colleague Juanita Davis, “came out of work and says she was going to slash our tires if we voted no for the Union.”
Another employee said she was going to “start punching people in the face” if the union didn’t get in. These are just some of the threats that occurred.
Despite the threats, NLRB members ruled that the union election results should stand and “neither [threatening statement] rose to the level of objectionable third-party threats.”
Manorcare refused to bargain with LIUNA and appealed the Board’s decision to the D.C. Circuit Court of Appeals. On May 20, 2016, despite the District Court applying a standard of deference to the NLRB’s decision, the Court was forced to reverse the decision because it was not “reasonable and consistent with applicable precedent.”
The Court of Appeals determined that the NLRB did not follow its own precedent in deciding to confirm the election results. The Board decision, Westwood Horizons Hotel, sets forth the factors on whether misconduct prior to a union election rises to the level that require a redo of an election, which include:
- The nature of the threat;
- Whether the threat encompassed the entire bargaining unit;
- The extent of the threat's dissemination;
- Whether the person who made the threat was capable of carrying it out and whether employees likely acted in fear because of his capability of carrying out the threat; and
- Whether the threat occurred at or near the time of the election.
In short, a union election is tainted and requires a redo when “misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible."
Clearly, a threat to physically harm a person and their property if they do not vote union creates an “atmosphere of fear and reprisal.” An election decided by only two votes, such threats could have decided the result and, therefore, certifying the union as the workers’ representative may not actually “reflect the employees’ free choice.”
Unfortunately, this is just one case of many that show a disturbing pattern of outlandish pro-union bias from the NLRB, which Congress created to act impartially and as a neutral arbiter.
As seen recently, the NLRB general counsel charged McDonald’s USA as a joint employer of its franchisees without providing any evidence and failed to explain its legal theories behind its unprecedented allegations. The Board’s ambush election rule threatens private-sector workers privacy by forcing employers to hand over its employees’ email and phone numbers to union organizers.
The NLRB has outlived its usefulness. The next Congress must consider legislation that abolishes the agency or strips it of its adjudication and rulemaking authority.
See the Competitive Enterprise Institute’s “Agenda for Congress” for in-depth discussion on NLRB reform.