Employment Law Daily Decertification petition nullified because supervisors encouraged employee to get more signatures
Tuesday, August 9, 2016

Decertification petition nullified because supervisors encouraged employee to get more signatures

By Dave Strausfeld, J.D. Supervisors who told an employee who had begun to circulate a decertification petition that he did not have enough signatures and should get more were unlawfully promoting the decertification campaign, held the D.C. Circuit, finding that the N:RB’s decision finding an unfair labor practice was supported by substantial evidence. It was a further unfair labor practice for the employer to rely on the tainted petition, once it received majority support, to withdraw recognition of the union (Enterprise Leasing Co. of Florida dba Alamo Rent-A-Car v. NLRB, August 5, 2016, Pillard, N.). Allegedly said "to go back and get more" signatures. After an employee of a car rental facility began circulating a petition to decertify the union, two supervisors asked how many signatures he had obtained so far. When he reported that 66 of the unit’s 159 employees had signed the petition, one of the supervisor’s said "it wasn’t enough, to go back and get more," according to a coworker who claimed she overheard the conversation. A matter of days later, the employee secured additional signatures to push the number above the 50 percent mark, at which point the employer concluded it could lawfully withdraw recognition from the union. The union responded by filing unfair labor practice charges. When the Board ruled in its favor, the employer sought relief in the court of appeals. Supervisors said wrong thing. Employer statements about union decertification, the D.C. Circuit explained at the outset, are not altogether off limits. For example, an employer does not violate the Act if it furnishes accurate information about, or ministerial aid to, the decertification process, and does so without making threats or offering benefits, as the Board’s decisions have recognized. But an employer commits an unfair labor practice if it actively encourages, promotes, or provides assistance in the initiation, signing, or filing of a decertification petition. Here, the supervisors unlawfully promoted the decertification campaign when they directly exhorted the employee to gather more signatures, the Board found, because this could only have further impelled him to continue his campaign. It did not matter that the employee himself had commenced and led the campaign before the conversation at issue. The Board’s findings on these matters were supported by substantial evidence, the appeals court found. Employer’s argument. The employer countered that the supervisors solely provided truthful information about the number of signatures needed, so there was nothing unlawful about their actions. But that argument was "only partly correct," the appeals court wrote. While it was lawful to inform the employee he did not have enough signatures (something he may already have known), the supervisors did not stop there. Instead, they directed him "to go back and get more" signatures, according to the eavesdropping coworker, and her testimony was credited by the Board. By actively encouraging and promoting a decertification petition, the supervisors engaged in conduct that was prohibited under the Board’s Mickey’s Linen decision. Decertification petition tarnished. And as a result of the supervisors’ prompting to collect more signatures, the Board further found, the decertification petition was tainted and the employer could not rely on it to withdraw recognition from the union. The employer objected that its supervisors had done nothing whatsoever to contribute to the union’s loss of majority support, and that anything they said or any other alleged unfair labor practice was insufficiently significant to have voided the decertification petition under the four-factor test articulated by the Board in Master Slack Corp. But the appeals court found no need to apply the Master Slack test, because the supervisors’ unlawful "propulsion" forward of the decertification petition, through urging the employee to obtain more signatures, constituted "a per se taint of that petition." Because of this blemish on the decertification petition, the employer had no right to withdraw its recognition of the union. After withdrawing recognition, the Board found, the employer committed further unfair labor practices when it failed to remit dues to the union and unilaterally changed the employees’ terms and conditions of employment. The Board’s decision on these matters was likewise supported by substantial evidence, the appeals court held. Other issues. There were several other issues on appeal, including whether managers had told unit members their short-term disability benefits were being eliminated on account of their union representation. This was primarily an evidentiary dispute concerning what was said and by whom, and there was substantial evidence justifying the Board’s finding of violation, the appeals court ruled, denying the employer’s petition for review and granting enforcement to the Board’s order in all respects.

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