Recently, we explored how the NLRB’s rules for determining the timeliness of a representation can be confusing. Another area of complexity comes from whether a decertification petition will be processed in the face of unfair labor practice charges filed by the incumbent union. This implicates the Board’s “blocking policy,” which is a set of guidelines designed to address circumstances where allegations of unlawful acts by the employer have been made during the pendency of a representation petition. Under the NLRB’s rules, the Regional Director possesses a tremendous amount of discretion to determine whether a petition will proceed in the face of unproven allegations. It is not uncommon to see decertification petitions,- actions brought by an employee or employees seeking to end union representation,– blocked for years with little or no explanation due to the mere presence of unfair labor practice allegations.
Critics of the blocking policy have claimed that it is too easy for an opposing party to obstruct the processing of a petition, particularly a decertification petition, merely by filing charges.
On December 19, 2018, the Board issued a decision clarifying one aspect of how decertification petition should be treated,–that when the underlying unfair labor practice allegations disappear through settlement. In Cablevision Systems Corp., 36 7 NLRB No. 59 (December 19, 2018), the Board addressed a decertification petition filed in 2014.
In 2012, the union was certified as the bargaining representative. Starting in 2013, the union filed two sets of charges alleging bad faith bargaining, discrimination and coercion in violation of Section 8(a)(5), (3) and (1) of the NLRA. The Regional Director found merit to the allegations and issued two complaints.
The complaints proceeded to hearing before two separate Administrative Law Judges. Before either ALJ issued a decision, an employee filed a decertification petition seeking to end the union’s representation. The employee managed to collect signatures sufficient to support the petition despite the union having unlawfully threatened to sue employees who distributed decertification petition (oddly, and despite the fairly transparent nature of the agency, neither the ALJ or the NLRB decision in the case against the union is published on the agency’s website; the NLRB provided WestLaw citations to each decision). The Regional Director administratively dismissed the petition, subject to reinstatement, pursuant to the Board’s blocking policy.
The two Administrative Law Judges eventually issued decision, each of which ultimately found the employer to have committed unfair labor practices. The employer appealed the matters to the Board.
Parties Settle, Regional Director Denies Request To Reinstate Petition
Before the Board issued a decision in either unfair labor practice case, the employer and the union agreed to settle the matters on a non-Board basis. The settlement included backpay to some employees and a three year collective bargaining agreement with an effective date of June 15, 2016. The settlement also included a non-admissions clause. The Board approved the settlement and the unfair labor practice charges were withdrawn.
The employee-Petitioner requested that the decertification petition be reinstated because the unfair labor practices had been resolved. The Regional Director denied this request solely on the basis that two administrative law judges had found violations of the Act which established a “causal connection” between the unfair labor practices and the erosion of employee support.
The employer requested review of this decision.
Three Member Board Majority Reinstates Decertification Petition
Three members of the NLRB (Ring, Kaplan and Emanuel) voted to reverse the Regional Director’s decision and ordered reinstatement of the decertification petition. The Board held that the allegations addressed in the Administrative Law Judge Decisions “were settled by agreement of the parties with no admission of wrongdoing by the Employer..” and therefore “furnish no basis for refusing to reinstate the petition.” This holding was based on the fact neither ALJ Decision was a “final decision” because they had not been acted upon by the Board. The ALJ decisions became a “nullity” upon withdrawal of the charges.
The Board held that denying the processing of a petition when there has been no final finding of a violation of the law would:
[C]ontravene due process to give determinative effect to these allegations, which the Employer merely agreed to settle, ‘nothing more and nothing less’. . . The implications for the decertification petition would be especially harsh: her petition would be dismissed based on findings that she will never have any opportunity to challenge in any forum. Accordingly, rather than ‘abdicat[ing]’ our duty to determine the validity of election petitions, as the dissent charges, we are safeguarding employees’ Section 7 rights by reinstating the decertification petition after allegations potentially tainting it have been settled.
The Board also noted that the Regional Director’s decision, if allowed to stand, would mean that the employee would have to wait until the expiration of the collective bargaining agreement before being able to file a timely petition.
Dissent Says Regional Director Acted Properly
Member McFerran issued a dissent arguing that the Regional Director correctly concluded the decertification petition was tainted by the employer’s unfair labor practices:
Contrary to the majority, the fact that the parties had settled the allegations against the Employer before final action by the Board does not compel a different result. To be sure, the settlement (absent an admission of wrongdoing) precludes any legal conclusion that the Employer violated the Act. But that is not the issue here. Rather, as recognized by the Regional Director, there remains the separate statutory question whether the Employer’s conduct tainted the decertification petition.
This case provides some clarification as to the appropriateness of dismissing a decertification petition after the resolution of unfair labor practice charges. In this case, the resolution involved the total withdrawal of charges, which had to be approved by the agency. While the agreement to settle the unfair labor practices is not set forth in the case, one can presume the agreement did not address the decertification petition. With the charges being withdrawn, and the employer not admitting to any wrongdoing, the Board found there was no legal basis to dismiss the petition. The case signals that this Board is going to look more closely at whether there exists a causal connection between any alleged unfair labor practices and employee sentiment with respect to continued union representation.
It is apparent from reading this case that the union and the employer were locked in a difficult struggle. What seems to be missing is any direct connection between the alleged unlawful acts and the employee efforts to decertify. Parties seeking to continue processing petitions in the face of unfair labor practice charges should ask the Region for the reasons why a petition is blocked or dismissed.
Of equal importance: this case illustrates the need for the Respondent in any unfair labor practice proceeding to insist on a non-admissions clause in any settlement, regardless of whether the settlement is taken through the Board’s procedures or not. Without a non-admissions clause provision, the case could have had a different outcome.