Labor & Employment Law Daily Employee not party to ULP settlement, so his decertification petition was erroneously dismissed
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Thursday, October 24, 2019

Employee not party to ULP settlement, so his decertification petition was erroneously dismissed

By Ronald Miller, J.D.

In a divided 4-member decision, the Board observed that the petitioning employee had not waived his right to file a petition and could not be bound by the settlement, which extended the certification year and included no admission or finding of a ULP violation.

A regional director erred in dismissing a decertification petition based on a settlement agreement resolving unfair labor practice charges, which included a provision in which the employer agreed to extend the certification year for seven months, the NLRB ruled in a 3-1 decision. The employee who filed the decertification petition was not a party to the settlement agreement and did not consent to its dismissal. Contrary to the regional director, the Board found that its 2007 decision in Truserv Corp. precluded dismissal of a decertification petition on the basis of settled unfair labor practice charges in circumstances presented here. Accordingly, the Board reversed the regional director’s decision. Member McFerran filed a separate dissenting opinion (Pinnacle Foods Group, LLC, October 21, 2019).

Contract negotiations. On March 7, 2017, a union was certified as the representative of a unit of production and maintenance employees. The parties engaged in bargaining, but did not reach agreement on a first contract. On August 31, 2018, an employee filed a decertification petition. One week later, the union filed an unfair labor practice charge, alleging, among other things, that the employer bargained in bad faith. That same day, the acting regional director granted the union’s request to block further proceedings on the decertification petition and ordered that it be held in abeyance pending resolution of the charge.

Thereafter, the regional director issued a complaint alleging that the employer failed to bargain in good faith by failing to make itself available for bargaining on reasonable dates, and by failing to provide sufficient time for negotiation during bargaining sessions. The complaint also alleged that the employer acted unlawfully by unilaterally changing the lengths of shifts and bidding procedures for those shifts.

Settlement agreement. Subsequently, the employer and union entered into a settlement agreement resolving the allegations in the complaint, which was approved by the regional director on March 25, 2019. The agreement included a non-admission clause, required the employer to post an approved notice, and to comply with its terms. The agreement included provisions that the employer would not refuse to bargain in good faith by limiting the frequency and duration of bargaining meetings, or by making changes to wages, hours, and working conditions, and that it would bargain in good faith. Additionally, the settlement included an extension of the certification year for a period of seven months following the approval of the settlement. During that period, the parties agreed to bargain in good faith.

Decertification petition dismissed. By a letter dated April 1, the regional director dismissed the decertification petition on the basis of the settlement agreement. The regional director noted that the settlement agreement extended the certification year by seven months, effective March 25, and that representation petitions filed during the certification year must be dismissed. The decertification petition, filed on August 31, 2018, was filed during the extended certification year.

However, the employee who had filed the decertification petition was not a party to the settlement agreement and did not consent to the dismissal of his petition. He requested review, arguing that the employer and union could not waive his right to have his petition processed.

No admission or finding of violation. Citing Truserv Corp. and Cablevision Systems Corp., among other cases, the employee contended that the regional director erred in dismissing his decertification petition on the basis of a settlement agreement that contained a non-admission clause. In Cablevision, the Board reaffirmed that “when a decertification petition has been blocked by subsequently settled unfair labor practice charges, ‘a timely filed decertification petition that has met all of the Board’s requirements should be reinstated and processed at the petitioner’s request following the parties’ settlement and resolution of the unfair labor practice charge.’” The Board explained in Truserv that, absent a finding of a violation or an admission by the employer of such a violation, there is no basis for dismissing a petition based on a settlement of alleged but unproven unfair labor practices. Consistent with this precedent, the Board concluded that the regional director erred.

Extension of certification year. The regional director’s finding that the parties’ extension of the certification year warranted dismissal of the decertification petition was also erroneous. Factually, the regional director erred in finding that the petition was filed during the extended certification year. The petition was filed nearly six months after the end of the original certification year on March 7. Although the settlement agreement provided for extension of the certification year, that extension by its terms only commenced upon approval of settlement agreement—March 25, 2019—long after the petition was filed. The settlement agreement did not purport to extend backwards in time, to encompass the date on which the petition was filed. Accordingly, there was no basis upon which to find that the petition was filed during either the original or the extended certification year.

Petitioner’s rights not waived. Further, the Board has repeatedly held that a decertification petitioner cannot “be bound to a settlement agreement by others that has the effect of waiving the petitioner’s rights under the Act to have the decertification petition processed.”

Petition dismissed in error. Dismissal of a petition that was not subject to any election bar when filed, based on a subsequent agreement between the employer and the union to extend the certification year, without the petitioning employee’s consent and in the absence of a finding of an unfair labor practice or an admission thereof, cannot be reconciled with these principles. Consequently, the regional director’s reliance on the settlement agreement’s certification year extension failed as a matter of law. The Board reversed the regional director’s administrative dismissal of the petition. Consistent with Truserv, “the decertification petition can be processed and an election held after the completion of the remedial period associated with the settlement of the unfair labor practice charge.”

Dissent. Member McFerran argued that under well-established Board law, the settlement agreement should have meant that the dissatisfied employee’s decertification petition was put on hold until after the employer had complied with the settlement. According to McFerran, ordering an election here before the employer has complied with the settlement agreement disregards important policy considerations underlying the Board’s protection of bargaining between an employer and a newly certified union. Moreover, she argued that the potential for a temporary delay in the employee’s ability to challenge the union’s majority status justifies this result. Balancing the stability interests underlying the certification bar against the interests of employee petitioners seeking to decertify a union freely chosen by employees in a Board election requires that the petitioners’ interests yield—temporarily—to the Act’s overarching policy in favor of labor stability.

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