Employment Law Daily Decertification petition reinstated by NLRB despite evidence of employer unfair labor practices
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Wednesday, December 26, 2018

Decertification petition reinstated by NLRB despite evidence of employer unfair labor practices

By Ronald Miller, J.D.

An NLRB regional director erred in dismissing a petition for a decertification election on the basis of unfair labor practice charges that were settled after administrative law judges had found them meritorious but before they had been resolved by the Board, ruled a divided four-member panel of the NLRB. The Board concluded that in the circumstances of this case, its 2007 decision in Truserv Corp., precluded the dismissal of an election petition on the basis of settled unfair labor practice charges. According to the Board, because the parties’ settlement included an agreement on a new three-year collective bargaining agreement, dismissal of the petition could potentially prevent an election in this unit until, at the earliest, 2019. Member McFerran filed a separate dissenting opinion (Cablevision Systems Corp., December 19, 2018).

The employer provides cable television and telecommunications services, including at the Brooklyn location at issue here. In February 2012, the union was certified as the exclusive bargaining representative of the Brooklyn employees. Beginning early in 2013, the union filed a series of unfair labor practice charges alleging that the employer violated the NLRA on numerous occasions from May 2012 through August 2013. The regional director investigated, found merit to the charges, and issued complaints. The union filed further charges covering the period July through December 2014, which the regional director also found meritorious, and issued more complaints.

Blocking charge policy. As early as July 31, 2014, the employer had been informed that several bargaining unit employees were collecting signatures in support of a decertification petition and in August, it learned there were more than 100 signatures supporting decertification. Before either ALJ issued a decision, the employer filed a decertification petition. On November 12, 2014, the regional director dismissed the petition, subject to reinstatement, pursuant to the Board’s blocking charge policy, based on complaint allegations in the cases pending before the ALJs. The employer requested review of the regional director’s decision.

On December 4, 2014, while the employer’s review request was pending, the ALJ in the first case found that: the employer had unlawfully refused to reinstate economic strikers who had not been permanently replaced; two supervisors made comments about restricting employees’ union activity and threatening that bargaining would be futile; the employer unilaterally changed terms and conditions of employment without notice to the union; and the employer cancelled training on new technology for bargaining unit employees. On April 19, 2016, the ALJ in the second case found that the employer conducted an unlawful poll of employees asking if they wanted to continue to be represented by the union.

Reinstatement of decertification petition. Relying primarily on allegations that the employer engaged in surface bargaining, on June 30, 2016, the Board denied the employer’s request for review. On July 1, the employer and union submitted for approval a non-Board settlement agreement, providing for settlement of the charges addressed by the ALJs. Among other things, the parties agreed to a new three-year CBA effective June 15. On July 14, the Board approved the settlement. Thereafter, the union withdrew the unfair labor practices. On August 26, the employer requested reinstatement of the decertification petition.

Applying the Board’s causation analysis described in Master Slack Corp., the regional director denied the request solely on the basis of the settled charges. The regional director found that a causal relationship between the employer’s conduct and the loss of support for the union tainted the petition and warranted dismissal. She also found that she was not required to reinstate the petition under Truserv. The regional director reasoned that, unlike Truserv, the unfair practice allegations here were extensively litigated, and the findings of the ALJs of widespread violations of the NLRA were sufficient to support dismissing the petition.

No final action by Board. The Board found merit in the employer’s contention that the regional director erred both by misapplying Board law and by finding a causal relationship between the employer’s alleged conduct and the decertification petition without holding an independent evidentiary hearing on that issue. In Truserv, the Board held that when a decertification petition has been blocked by subsequently settled unfair labor practice charges, “a timely filed decertification petition that had met all Board requirements should be reinstated and processed at the petitioner’s request following the parties’ settlement and resolution of unfair labor practice charges.” Thus, the fact that the alleged actions occurred prior to the filing of the decertification petition did not provide a basis for a conclusion that the petition was tainted by unlawful conduct.

Consistent with Truserv, the Board here found that the unfair labor practice allegations addressed by the ALJs, which were settled by agreement of the parties with no admission of wrongdoing by the employer, furnished no basis for refusing to reinstate the petition. Truserv requires that a petition be reinstated after a settlement agreement is executed “absent a finding of a violation of the Act, or an admission by the employer of such a violation.” An ALJ’s violation finding is insufficient to render Truserv inapplicable where, as here, the charges were settled prior to final action by the Board.

In sum, the parties’ settlement of the unfair labor practice charges without final action by the Board precluded any conclusion that the employer’s conduct violated the Act. Accordingly, the Board found merit in the employer’s contention that the petition should be reinstated pursuant to Truserv.

Dissent. In a lengthy dissent, Member McFerran argued that there was reliable “evidence presented” that the employer in fact engaged in conduct that, even if it could not form the basis for unfair labor practice liability, clearly contributed to the filing of the decertification petition. She argued that the Board could not safely assume that the decertification petition fairly reflected employees’ uncoerced desires about continued union representation when ALJs found that the employer engaged in widespread misconduct in the weeks surrounding the filing of the petition. It was perfectly appropriate for the regional director to look to the records created by the ALJs in deciding whether to reinstate the decertification petition, McFerran concluded.

Moreover, McFerran argued, the fact that the parties had settled the allegations against the employer before the final action by the Board did not compel a different result. Rather, there remained the separate statutory question whether the employer’s conduct tainted the decertification petition. The majority erroneously ignored this fundamental point in mechanically applying Truserv to reinstate the petition, according to the dissent. Rather, consistent with Section 9, the Board should conclude that the regional director properly looked to the records of the proceedings before the ALJs in fulfilling her duty to examine the appropriateness of proceeding with an election.

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