The decision came in a case that arose from a 2008 workplace representation election at MasTec DirecTV that was won by the Communications Workers of America on a 14-12 vote. Several of the anti-union employees reported numerous threats of violence against them and their families by pro-union advocates. As described by the NLRB, the threats included "a statement by prounion employee Anthony Hodges to employee Matthew Abel that Hodges could 'whip [employee Dennis Sheil's] a*s' or sabotage his work; an anonymous telephone threat to employee Lou Mays that the caller would 'get even' with him if he 'backstab[bed] us'; and statements by prounion employee Chris Verbal to a group of three or four employees that Verbal would 'b*tch slap' two other employees (who were not present at the time) or 'whip their f--in' ass' if they 'cost us the election,' and that he would 'whip [supervisor] Eddie's ass' if the union lost."
Does that sound like a hostile or threatening workplace atmosphere? Prior to its most recent decision, the NLRB has historically set aside elections in which multiple verbal threats were made by either side, including most recently in a 2007 case in which a UAW effort to organize a PPG shop was overturned following a rash of verbal threats of physical assault by pro-union employees against anti-union employees. But the NLRB last Friday found the same sort of verbal threats insufficient to set aside the election because it failed to meet one of these five criteria: "(1) the nature of the threat itself; (2) whether it encompassed the entire unit; (3) the extent of dissemination; (4) whether the person making the threat was capable of carrying it out, and whether it is likely that employees acted in fear of that capability; and (5) whether the threat was made or revived at or near the time of the election."
In other words, what constitutes a threat of violence in the age of Obama is now to be determined by the application of a complicated set of bureaucratic criteria, which inevitably will require massive administrative litigation before a decision is rendered. Which is another way of inviting union thugs to have at it without fear of consequences anytime soon.