By Marianna Michael

The National Labor Relations Board (“NLRB” or “Board”) recently reaffirmed that a voluntary extension of the certification year will not bar decertification elections. The certification year is the one year period following a union’s certification after winning an election. During the certification year, the Board does not conduct an election in an effort to allow the union and the employer ample opportunity to negotiate a collective bargaining agreement. However, unions and employers may negotiate a voluntary extension of the certification year. Pursuant to the Board’s holdings, the Board may conduct a vote during the voluntary extension after they receive a decertification petition and confirm that the remaining requirements are met. A decertification petition is submitted by employees who no longer want the union to act as their exclusive representative. The decertification process is used to determine whether a union continues to enjoy majority status among employees.

The NLRB’s most recent ruling comes from Pinnacle Foods Group, LLC and Robert Gentry and Local 881 United Food and Commercial Workers Union, 14-RD-226626; 368 NLRB No. 100. The Petitioner, an employee at Pinnacle Foods Group, LLC, filed a decertification petition. A week later, the Union filed an unfair labor practice charge against the employer, alleging that the employer bargained in bad faith in violation of the National Labor Relations Act (“NLRA”). The employer and the Union entered into a settlement agreement. Among the various provisions, the employer agreed to extend the certification year by seven (7) months commencing upon the approval of the settlement agreement. The Petitioner was not a party to the settlement agreement. The Regional Director dismissed the Petitioner’s decertification petition and did not conduct a vote because it would have breached the settlement agreement reached by the employer and the Union. The Petitioner sought review by the Board and argued that the agreement between the Union and the employer did not “waive the Petitioner’s right to have his petition processed.” The Regional Director, taking his direction from the settlement agreement, dismissed the petition on the basis that the seven (7) month extension prevented the decertification process from occurring during that time. The NLRB reversed the Regional Director’s dismissal of the petition based on Truserv Corporation, 349 NLRB 227 (2007), which holds that “the decertification petition can be processed and an election can be held after the completion of the remedial period associated with the settlement of the unfair labor practice charge.” Ultimately, unions and employers may not bargain away rights of employees that are established in the NLRA.

The opinion and dissent showcase two prevalent schools of thought in labor law. The opinion, written by Chairman Ring, exhibits a prioritization of workers’ rights and autonomy. Pro-union parties, like Member McFerran who authored the dissent, dislike the Board’s holdings in Pinnacle and related cases because they favor maintaining relationships between the employer and unions in the bargaining process. The tension is highlighted in the opinion when Chairman Ring addresses the dissent and states,

“We recognize and support the Act’s policy of promoting industrial stability and the peaceful settlement of labor disputes. These are not, however, the only policies established by the Act. To the contrary, “the Board is required to balance the statutory goal of promoting labor relations stability against its statutory responsibility to give effect to employees’ wishes concerning representation.”

Pinnacle Foods Group, LLC, p. 4 (quoting Silvan Industries, a Division of SPVG, 367 NLRB No. 28, slip op. at 3 (2018)).

Based on Pinnacle Foods Group, LLC and Robert Gentry and Local 881 United Food and Commercial Workers Union, the Board has a duty to conduct a vote based on a decertification petition after receiving the petition and ensuring that the remaining requirements are met.

There are many ways that employers may violate the NLRA after they are approached by employees who seek to initiate the decertification process. Based on previous NLRB holdings:

• • Employers cannot offer to help employees initiate the decertification process. (Weisser Optical, 274 NLRB 143).
  • Employers cannot use intimidation or fear of reprisal to “encourage” employees to pursue decertification. (Dow Chemical, 250 NLRB 586).
  • Employers cannot initiate, instigate, solicit or encourage decertification because it interferes with an employee’s free choice. (Quality Transport, 211 NLRB 198).
  • Employers cannot provide employer resources to support the decertification process because that equates to encouraging the decertification election, which is not allowed. (Placke Toyota, 215 NLRB 395; Quality Transport, 211 NLRB 198; Weather Shield, 292 NLRB 1).
  • Employers cannot tell employees who they should not talk to, instruct anyone to support decertification or be involved in the petition process. (Renaissance Hotel Operating Company, NLRB 28-CA-128643).

[list adopted from article originally published on https://blog.unionproof.com/employers-decertification/]

Employers should act cautiously to ensure that their employees’ rights under the NLRA are granted, while ensuring that their actions do not violate the NLRA.