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Employees are supposed to be free to exercise the right to join a union or refrain from doing so in an atmosphere without fear, coercion, intimidation or threats.

But as Vorys, Sater, Seymour and Pease partner Nelson Cary explains on the Labor blog, even if threats are made, that doesn’t necessarily mean the National Labor Relations Board will overturn the results.

During the union campaign at ManorCare of Kingston, Pa., Cary says that two prounion employees made various threats against other workers. He says one woman claimed she would damage people’s cars and cause bodily harm to those voting against the union.

In the end, the Laborers International Union narrowly won by two votes and despite the threats, he says the NLRB overruled the employer’s objection to the election by 2-1.

Cary says the NLRB said the employees’ statements were “made in a casual and even light-hearted fashion,” saying the employer failed to prove they created a “general atmosphere of fear and reprisal rendering a free election impossible.”

However, he notes the case might have turned out differently if these two employees had been acting on behalf of the union, but because no one contended they were, “the employer carried a significantly heavier burden to justify setting aside the election.”