The NLRB recently reiterated its position that the agency should not be so quick to dismiss petitions filed by employees seeking to decertify a union. The Board, in a 3-1 decision, held that if a petition for decertification is properly filed prior to the employer entering into an agreement settling unfair labor practice charges in which the parties agreed to extend the bargaining period, the petition for decertification may go forward. See Pinnacle Foods Group, LLC, 368 NLRB No. 97.

Key Facts

On March 17, 2017, a Union was certified at an Employer’s facility in St. Louis. The Union and the Employer bargained but never reached agreement on a first contract. On August 31, 2018, some six months after the close of the original certification year, a petition for decertification was filed by the employees. Shortly thereafter, on September 7, 2018, the Union filed an unfair labor practice charge against the Employer. During the pendency of the unfair labor charge, the Regional Director held the petition for decertification in abeyance. The Union and the Employer entered into a settlement agreement concerning the unfair labor charge, which was approved by the Regional Director on March 25, 2019. The employee-Petitioner refused to consent to the settlement agreement. The settlement agreement included a non-admission clause and that the Union certification period would be extended, effective March 25, 2019, by seven months to allow additional bargaining. On April 1, 2019, the Regional Director dismissed the petition for decertification.

In dismissing the petition for decertification, the Regional Director relied on the seven month extension of certification, and noted that “representation petitions filed during the certification year must be dismissed.” Id. The Petitioner requested review of the Regional Director’s decision, asserting that the Regional Director erred in dismissing the decertification petition because the petitioner did not consent to the settlement agreement, the settlement included a non-admission clause, and the decertification petition was properly filed prior to entry of the settlement agreement.


The Board majority (Chairman Ring, Members Kaplan and Emanuel) reversed the Regional Director and reinstated the decertification petition.

The Board concluded that the Regional Director’s determination that the decertification petition was filed during the extended certification year was erroneous because the petition was filed six months after the original certification year ended and nearly eight months prior to the March 25, 2019 settlement agreement.

In its analysis, The Board majority relied on its recent decision in Cablevision Systems Corp., 367 NLRB No. 59 (2018).  We discussed Cablevision here. Under Cablevision, the Board “reaffirmed that ‘when a decertification petition has been blocked by subsequently settled unfair labor practice charges, a timely filed decertification petition . . . should be reinstated and processed at the petitioner’s request following the parties’ settlement and resolution of the unfair labor practice charge.’” Additionally under existing case law, the Board stated that a decertification petitioner cannot be bound by a settlement that waives its rights under the NLRA. The Board majority went on to note that in order to dismiss a properly-filed petition for decertification on the basis of settlement, there must be a finding of a violation of the NLRA or an admission by the employer that there was a violation of the NLRA, neither of which was present in this case.

The Board held that because the decertification petitioner did not consent to the settlement and the settlement agreement included a non-admission clause, the dismissal of the decertification petition was improper and the decertification petition should go forward during the extended bargaining period.


The Board’s policy of blocking decertification petitions during the pendency of unfair labor practice charges has been a subject of much criticism. In this case, long after the certification period expired, and with no hint that any violations of the law were alleged, the employees filed a decertification petition.  The Union’s charges filed after the petition were served to block the processing of the petition, thereby denying the employees an opportunity to vote on whether to continue union representation.  Despite this timeline, a Regional Director dismissed the petition based on a settlement agreement which was entered into after the petition but which extended the certification period.  The Board majority was unwilling to deny employee rights by events over which the employees had no control.

This case also demonstrates the importance of securing a non-admissions clause in any unfair labor practice settlement.  Such clauses, which are harder to secure these days, are legally significant.  In cases like this, it shows the employer was settling but refusing to acknowledge it did anything wrong.  Legally, non-admissions clauses are very important for another reason: if the employer complies with the term of the settlement then the matter cannot be referenced in subsequent cases.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.