By: Ashley S. Kircher, Esq.

Recently, an Administrative Law Judge of the NLRB ruled that an employer’s failure to respond immediately to a racial slur by one employee toward another employee who had voiced union support at a pre-election meeting was not enough to overturn the results of the election in the employer’s favor.  See Durham School Services, L.P., Case No. 05-RC-103218 (Sept. 12, 2013).

Underlying Facts

On May 21, 2013, the employer convened a meeting to discuss the upcoming union election.  Between 85 and 100 employees attended the meeting.  During the meeting, the employer’s Human Resources Manager told the employees that he was surprised and disappointed that they would reach out to the union to address their workplace issues and that, although his family had benefited from union affiliation when he was younger, unions no longer served the interests of their members. In response, an employee seated in the front row rose and asked the HR Manager why he had not addressed employee concerns that had been raised earlier and why he was denigrating unions if they were good enough to help his family when he was growing up. 

In response, one of the employee’s co-workers who was seated in the fourth row hurled a vicious racial epithet at the employee, called him stupid, and told him to learn English or return to Africa. Some members of the audience laughed at the exchange, and the HR Manager told everyone to calm down. The meeting continued without the HR Manager reprimanding the co-worker or otherwise addressing the offensive comments.

The election was held on May 31, 2013, and the union lost by a vote of 75-62. Also on May 31, the employee who had been the target of the racially offensive remarks at the May 21 meeting called in a complaint to the employer’s hotline based upon his co-worker’s remarks at the meeting. Shortly thereafter, the co-worker was issued written discipline for his remarks. 

The union filed objections to the election, one of which was that during the critical election period, the employer appealed to racial prejudice in order to dissuade groups of employees from supporting the union. The union specifically referenced the May 21 meeting, alleging that the employer had countenanced, through inaction, racist name-calling by employees toward other employees who supported the union and thereby improperly affected the free choice of the employees in voting for or against representation.

The ALJ’s Analysis

Although the ALJ disbelieved the HR Manager’s testimony that he only heard that portion of the co-worker’s remarks telling the employee to return to Africa, he nonetheless found that the election results should not be set aside.

The ALJ observed that for inappropriate expressions of racial prejudice to rise to the level required to set aside the results of an election, it must be shown that they created “an atmosphere of fear and reprisal such as to render a free expression of choice impossible.” The judge found that the union had failed to demonstrate that the co-worker’s remarks at the May 21 meeting had created such an atmosphere. In this regard, the judge noted that the union had not presented any evidence that the co-worker’s remarks had engendered discussion or consternation among other employees. The judge also relied on the fact that the election result was not very close.

The ALJ found that the employer’s failure to immediately repudiate the co-worker’s remarks was insufficient to set aside the election. The judge drew a distinction between a sustained course of conduct to appeal to racial prejudice and isolated prejudicial remarks, and observed that the present case fell within the latter category because there was no evidence that the remarks were part of a recurrent or persistent campaign to appeal to the racial prejudices of the eligible voters. 

Concluding Thoughts

The case underscores the reality that unions can seize on almost anything to try to set aside elections that do not go their way. As a consequence, employers should remain especially careful during any critical election period not to engage in action–or even inaction– that the union could argue interfered with the results of the election.