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I.
Withdrawal of Recognition: NLRB General Counsel Seeks
Reversal of Levitz Doctrine
On May 9, 2016, NLRB General Counsel Richard Griffin issued a memorandum
(GC 16-03) instructing all Regional Directors, Officers-in-Charge and Resident Officers
to argue for reversal of the Levitz doctrine in any unfair labor practice case alleging
unlawful withdrawal of recognition from an incumbent bargaining representative without
objective evidence that the union actually has lost majority support. (Copy of the GC
Memo is attached.)
In Levitz Furniture of the Pacific, 333 NLRB 717 (2001), the NLRB adopted a
framework that heightened the showing required of employers to unilaterally withdraw
recognition, moving from a test based on an employer’s “good faith doubt” as to a
union’s majority status, to one that turns on “objective evidence” that the union actually
has lost its standing with the bargaining unit. The Board rejected the then-General
Counsel’s position in Levitz that employers should be required to continue recognition
unless and until the union has failed to receive a majority of the votes cast in a secretballot election. However, the Board left open the possibility that the Levitz doctrine
would be revisited in the event that subsequent developments showed that it did not
effectuate the purposes of the Act.
In Memorandum GC 16-03, General Counsel Griffin expressed the Agency’s
view Levitz has resulted in frequent litigation over difficult issues, and has failed to serve
two important federal labor policies:
promotion of stable collective bargaining
relationships and employee free choice in the selection of representatives. Accordingly,
in all cases where a determination has been made to issue an unfair labor practice
complaint alleging that an employer has violated Section 8(a)(5) by withdrawing
recognition in the absence of objective evidence that the union has actually lost majority
support, the General Counsel has directed all offices to (i) plead in the alternative that
the employer unlawfully refused to bargain by withdrawing recognition absent the
results of a Board-conducted election, and (ii) seek adoption of a rule that recognition
may be withdrawn -- unless the parties have agreed otherwise -- only after the Board
has issued a Certification of Results finding that the union is no longer the majority
representative.
Attached to GC Memo 16-03 is a model argument that has been developed by
the Office of the General Counsel for inclusion in all briefs to administrative law judges
and the Board in withdrawal of recognition cases, urging that the Agency require
employers to utilize the NLRA’s election procedures rather than act unilaterally when
there is reason to believe that the union has lost majority support. The principal points
made in the model argument are that experience under Levitz has demonstrated that
employers are not withdrawing recognition only when the evidence “clearly indicates” a
loss of majority support, causing protracted litigation; that a rule prohibiting withdrawal
of recognition absent issuance of a Certification of Results following an RM or RD
election best effectuates the policies of the Act and better accomplishes what the Board
set out to do in Levitz; and, that the proposed rule is even more appropriate today than
when Levitz was decided, given the Board’s revised representation case rules
streamlining the election process.
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II.
Miller & Anderson, Inc., 364 NLRB No. 39 (2016) – NLRB Issues
Long-Awaited Ruling on Bargaining Units Combining User and
User/Supplier Employees
On July 11, 2016 The Board overturned Oakwood Care Center, 343 NLRB 659 (2004),
and returned to its standard under M.B. Sturgis, Inc., 331 NLRB 1298 (2000), holding
that employer consent is not required for bargaining units consisting of jointly employed
and solely employed employees of a single user employer. Such units will be deemed
appropriate, even absent employer consent, if the traditional community of interest
standard is met. Chairman Pearce and Members Hirozawa and McFerran, for the
majority, determined that a return to the Sturgis standard was both consistent with the
language of the NLRA and better serves the purposes of the Act.
An Overview of NLRB Precedent
The Early Years of the Act
The majority began their analysis of the issue by examining Board precedent dating
back to the early years of the Act. As the majority noted, for the first four decades of the
Act’s administration, the Board routinely found units consisting of the employees of a
single employer appropriate, regardless of whether some of those employees were
jointly employed by other employers.1 When faced with petitions to include both groups
of employees in a single bargaining unit, the Board used its traditional community of
interest test to decide whether such units were appropriate. Significantly, during this
time, the Board identified no statutory impediment to such units and the issue of
employer consent was not raised. The courts of appeal similarly accepted bargaining
units consisting of jointly employed employees and employees solely employed by a
user employer.2 Thus, the majority noted that as of the end of the 1960’s -- and
continuing for the two decades that followed -- no Board or court decision had barred,
absent employer consent, units combining solely employed employees and jointly
employed employees. Rather, as these decisions demonstrate, neither the Board nor
the courts perceived any statutory impediments to units combining solely employed
employees and jointly employed employees; such units were subject only to the
traditional community of interest standards.3
1
See Louis Pizitz Dry Goods Co., 71 NLRB 579 (1946); Taylor’s Oak Ridge corp., 74 NLRB 930 (1947);
Denver Dry Goods Co., 74 NLRB 1167 (1947); JM High Co., 78 NLRB 876 (1948); Block & Kuhl
Department Store, 83 NLRB 418 (1949); Stack & Co., 97 NLRB 1492 (1952); Frostco Super Save
Stores, Inc., 138 NLRB 125 (1962); Spartan Department Stores, 140 NLRB 608 (1963).
2
See S.S. Kresge Co. v. NLRB, 416 F.2d 1225 (6th Cir. 1969); Gallenkamp Stores Co. v. NLRB, 402
F.2d 525, 531 (9th Cir. 1968)’ NLRB v. Zayre Corp., 424 F.2d 1159 (5th Cir. 1970)
3
See, e.g., Globe Discount City, 209 NLRB 213 (1974); NLRB v. Western Temporary Services, Inc.,
821 F.2d 1258 (7th Cir. 1987).
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Lee Hospital
In Lee Hospital, decided in 1990, altered its treatment of units combining jointly
employed and solely employed user employees. 300 NLRB 947 (1990). In that case,
the Board announced a “general rule” that it does not include employees in the same
unit if they do not have the same employer, absent employer consent, and held that if
employees are jointly employed by two employers, they can be included in a unit with
employees of the user employer only with the employer’s consent. Id. at 948. The
majority points out that the Lee Hospital decision ignored the Board’s routine practice of
finding appropriate units that combined employees solely employed by a user employer
with employees jointly employed by that user employer and a supplier employer, offered
no rationale in support of the general rule it asserts exists, and relied only on a single
case (cited in a footnote) that in fact is inapposite to the issue at hand.4
Notwithstanding these shortcomings in the Lee Hospital analysis, the Board began
applying the “rule” of Lee Hospital to prohibit any unit that would combine jointly
employed employees with solely employed employees of one of the joint employers
absent consent of both employers.5
Sturgis
In Sturgis, the Board reexamined Lee Hospital and concluded that it had improperly
extended the multi-employer analysis to situations where a single user employer obtains
employees from a supplier employer and a union is seeking to represent both those
jointly employed employees and the user’s solely employed employees in a single unit.
331 NLRB 1298. The Sturgis Board rejected the “faulty logic” of Lee Hospital that a
user employer and a supplier employer who employ employees that perform work on
behalf of the same user are equivalent to the completely independent user employers in
multi-employer bargaining units. Id. at 1298. The Board found that employer consent is
not required for a unit combining the employees solely employed by a user employer
and those jointly employed by that same user employer and a supplier employer
because such a unit is an “employer unit” under Section 9(b) of the Act given that all the
employees perform work for the user employer and all are employed by the user
employer.6 Thus, the Board in Sturgis held that it would apply traditional community of
interest factors to decide if such units are appropriate.
4
The Lee Hospital Board cited Greenhoot, Inc., 204 NLRB 250 (1973), which stands for the much
different proposition that where two or more otherwise separate user employers obtain employees
from the same supplier employer, and a union is seeking to represent those employees in a single
unit, that unit sought is a multi-employer unit requiring employer consent. Greenhoot left undisturbed
the Board’s long-standing practice of finding appropriate units that combined employees solely
employed by a user employer and employees jointly employed by that user employer and a supplier
employer absent employer consent.
5
See e.g., International Transfer of Florida, Inc., 305 NLRB 140 (1991); Hexacomb Corp., 313 NLRB
983 (1994).
6
Section 9(b) of the Act provides that “[t]he Board shall decide in each case whether . . . the unit
appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plaint unit, or
subdivision thereof[.]” 29 U.S.C. §159(b) (emphasis added).
4
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Oakwood
Four years later, the Board changed course again and concluded that Sturgis was
misguided both as a matter of statutory interpretation and sound national labor policy.
Specifically, the Board determined that Congress had not authorized it to direct
elections in units encompassing the employees from more than one employer, and that
the bargaining structure contemplated by Sturgis gives rise to significant conflicts
among the various employers and groups of employees participating in the process.
The Board’s Decision
The majority noted that the central purpose of the Act is to protect and facilitate
employees’ opportunity to organize unions to represent them in collective bargaining
negotiations. Moreover, because the Act does not explicitly address the issue at hand,
the majority concluded that it does not compel Oakwood’s holding that employer
consent is required. As such, the majority deemed itself free to consider whether
another rule is not only a permissible interpretation of the statute, but also that it better
serves the purposes of the Act. The majority determined that a return to the Sturgis rule
met both of those criteria.
Sturgis is Consistent With the Act
The majority determined that the Sturgis rule is within the ambit of a Section 9(b)
employer unit because all the employees in such a unit are performing work for the user
employer and are employed, within the meaning of the common law, by the user
employer. The Oakwood rule, by contrast, was deemed too restrictive. Additionally, the
majority concluded that Oakwood was based on the erroneous conception that
bargaining in a Sturgis unit constitutes multi-employer bargaining. The majority
distinguished between a Sturgis unit and true multi-employer bargaining units, which are
created without regard for any pre-existing community of interest among the employees
and involve employers who are physically and economically separate from each other.
It is the latter situation that the rule requiring employer consent was designed to
address. The majority further reasoned that, given the broad definition of “employer”
and “employee” under the Act, and the statutory charge to afford employees the fullest
freedom in exercising their right to bargain collectively, a combined Sturgis unit does not
fall outside the ambit of a Section 9(b) “employer unit” but rather is responsive to
Section 9(b)’s statutory command.
Sturgis Effectuates Fundamental Policies of the Act that Oakwood Frustrates
Noting that a key aspect of the right to self-organization under the Act is the right to
draw the boundaries of that organization, i.e., to choose whom to include and whom to
exclude, the Board majority determined that the Sturgis approach best effectuates the
fundamental policies of the Act. That is, the Sturgis rule honors the principle of selforganization because it does not require employees to obtain employer permission
before they may organize in their desired unit; it leaves employees free to choose the
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unit they wish to organize, provided it is appropriate under the Board’s community of
interest test. Oakwood, on the other hand, denies employees in an otherwise
appropriate unit full freedom of association because it requires employees to obtain
employer permission to organize. The majority reasoned that Oakwood upended the
Section 9(b) mandate and allowed employers to shape their ideal bargaining unit, which
is precisely the opposite of what Congress intended.
Member Miscimarra dissented, arguing that the majority holding requires two or more
businesses to engage in multi-employer and/or non-employer bargaining without their
consent. In his view, the majority’s ruling in Miller & Anderson, coupled with the recent
expansion of the Board's joint employer standard in Browning-Ferris Industries, 362
NLRB No. 186 (2015), creates a new legal regime that will result in confusion and
instability.
III.
NLRB Reverses 1984 Ruling in Wells Fargo, Prohibiting
Withdrawal of Recognition from a Mixed-Guard Union
Without Evidence of Actual Loss of Majority Status
Section 9(b)(3) of the National Labor Relations Act prohibits the NLRB from
certifying a union as the representative of a unit of “guards” -- defined as individuals
employed to “enforce against employees and other persons rules to protect property of
the employer or to protect persons on the employer’s premises” -- any labor
organization that “admits to membership or is affiliated directly or indirectly with an
organization which admits to membership, employees other than guards.” The purpose
of this prohibition is to protect against the divided loyalty of an employer’s security
personnel. However, nothing in the Act prohibits an employer from voluntarily
recognizing and bargaining with such a “mixed-guard union”.
Although Section 9(b)(3) places no limitation on the NLRB’s authority to enforce
existing collective bargaining relationships between an employer and a union
disqualified from certification as the representative of guards, for over 30 years the
Board has interpreted that provision of the Act to prohibit it from ordering an employer to
continue such a relationship following contract expiration. The Board’s reasoning had
been that when an employer has withdrawn recognition from a mixed-guard union, it
cannot direct the employer to resume recognizing and bargaining with the union
because such an order “would give[ ] the [u]nion indirectly -- by a bargaining order -what it could not obtain directly -- by certification -- i.e., it compels the [employer] to
bargain with the [union].” Wells Fargo Corp., 270 NLRB 787 (1984), rev. denied sub.
nom. Truck Drivers Local 807 v. NLRB, 755 F.2d 5 (2d Cir. 1985), cert. denied, 474
U.S. 901 (1985). As a result, the NLRB has permitted employers to withdraw
recognition from a mixed-guard union upon contract expiration, without any need to
demonstrate that there has been a loss of the union’s majority support.
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On June 9, 2016, in Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the
NLRB revisited the issue and overruled Wells Fargo. In that case, the company had
long-term relationships -- anywhere from 10 - 47 years -- with several IBT locals
covering multiple units of security guards working throughout California. The Teamsters
had been voluntarily recognized by Loomis at each of these locations. Recognition was
withdrawn solely on the basis of the Wells Fargo Board’s interpretation of Section
9(b)(3). In none of these units did the company assert that the union had lost majority
support.
Noting criticism of Wells Fargo over the years both by certain members of the
Board and in the courts, and emphasizing that Section 9(b)(3) does not speak to the
termination of voluntarily created collective-bargaining relationships between employers
and mixed-guard unions, the Board abandoned the rule adopted in Wells Fargo and
held that a Section 9(a) relationship with a mixed-guard union in a bargaining unit of
guards is subject to the same rules on withdrawal of recognition as apply to any other
collective bargaining relationship. The NLRB found that “Wells Fargo created an
unwarranted exception to the general rule that an employer, having voluntarily
recognized a majority supported union, must continue to recognize and bargain with the
union unless and until the union is shown to have actually lost majority support.” 364
NLRB No. 23, slip op at 2.
The Board held that “[t]his narrower reading of Section 9(b)(3) . . . is more
consistent with the relevant legislative history,” adding that “[t]he fundamental purpose
of the 9(b)(3) prohibition of Board certification of mixed-guard unions in guard units . . .
is to permit employers to decide for themselves whether to recognize and bargain with
such unions” and that “[t]he Board’s issuance of a remedial order to bargain does no
more than restore the status quo that the employer, not the Board, created.” 364 NLRB
No. 23, slip op. at 5-6.
However, recognizing that application of the new rule would be “manifestly unfair”
to the company given its reliance on decades-old precedent, the Board declined to give
its ruling retroactive effect in this or any other pending cases involving unilateral
withdrawal of recognition from a mixed-guard union in a guards unit. Accordingly, the
complaint was dismissed.
Member Miscimarra, dissenting, would adhere to the Wells Fargo rule as in his
judgment Section 9(b)(3) is open to “several reasonable interpretations;” that the rule
established by the Board more than 30 years ago reflects a “reasonable middle position
between less persuasive interpretations, and is most consistent with the compromise
that Congress struck when it restricted the representation of guards by mixed
guard/non-guard unions;” and, lastly, that “no compelling reasons warrant
reconsideration of Wells Fargo.” 364 NLRB No. 23, slip op. at 8.
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IV.
Adams & Associates, Inc., 363 NLRB No. 193 (2016) – Making
the “Perfectly Clear” Successor Standard a Little Bit Clearer
On May 17, 2016, a unanimous panel consisting of Chairman Pearce and Members
Hirozawa and McFerran, clarified the Board’s “perfectly clear” successor standard,
holding that when a successor employer expresses an intent to retain a sufficient
number of the predecessor’s employees to continue the union’s majority status without
making it clear that employment will be conditioned on acceptance of new terms, the
employer is a “perfectly clear” successor that may not unilaterally set initial terms.
Adams & Associates (“A&A”) successfully bid on a contract to operate a youth training
center that was previously operated by Horizons Youth Services. Horizons had a
collective bargaining relationship with the AFT; the CBA was set to expire in March
2014.
On February 13, 2014, an executive of A&A met with the training center’s employees to
discuss the transition and the hiring process. Among other things, the executive told the
employees that they were “doing a really good job;” that the new employer “didn’t want
to rock the boat;” that he “wanted a smooth transition;” and that “aside from disciplinary
issues, he was 99 percent sure that [they] would all have a job.”
Between February 28 and March 10, 2014, A&A extended offers of employment and
presented employment agreements specifying terms and conditions of employment that
differed from the CBA. Ultimately, a majority of the staff hired by A&A were former
Horizons employees who had been represented by AFT. Consistent with the A&A offer
letters and employment agreements, the employees were hired under changed terms.
As in nearly all successorship cases, the Board’s analysis began with NLRB v. Burns
Security Services, 406 U.S. 272 (1972). The Supreme Court in Burns held that a
successor employer generally is not bound by the substantive terms of a collective
bargaining agreement between the predecessor and a union but is, instead, free to set
initial terms and conditions of employment unilaterally. The Court reasoned that the
duty to bargain generally does not attach before the successor sets initial terms
because it is not usually evident whether the union will retain majority status until after
the successor has hired a full complement of employees. But, the Court also
recognized that “there will be instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit and in which it will be
appropriate to have him initially consult with the employees’ bargaining representative
before he fixes terms.” Id. at 294-95 (emphasis added).
Several years later, in Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiuam 529
F.2d 516 (4th Cir. 1975), the Board interpreted the “perfectly clear” caveat in Burns to be
limited to circumstances where the successor employer has either “actively or, by tacit
inference, misled employees into believing they would all be retained without change in
their wages, hours, or conditions of employment, or at least to circumstances where the
new employer . . . has failed to clearly announce its intent to establish a new set of
8
463
conditions prior to inviting former employees to accept employment.”
(footnote omitted).
Id. at 195
Twenty years after Spruce Up, in Canteen Co., 317 NLRB 1052 (1995), enfd. 103 F.3d
1355 (7th Cir. 1997), the Board clarified that the “perfectly clear” exception applies, and
a bargaining obligation attaches, when a successor expresses an intent to retain the
predecessor’s employees without making it clear that employment will be conditioned
on acceptance of new terms. A subsequent announcement of new terms (or an intent
to set new terms) will not erase the bargaining obligation that is triggered when a
successor expresses an intent to retain the predecessor’s employees but does not
make clear that their employment is conditioned upon the acceptance of new terms.
See, e.g., DuPont Dow Elastomers LLC, 332 NLRB 1071 (2000). Thus, the Board
clarified that to avoid “perfectly clear” status, a successor employer must clearly
announce its intent to establish a new set of conditions prior to or simultaneously with,
its expression of intent to retain the predecessor’s employees.
Applying that standard to the facts in Adams & Associates, the Board concluded that
A&A became a “perfectly clear” successor on February 13, 2014, when it announced to
the Horizons’ employees that they had “been doing a really good job;” that the
successor “didn’t want to rock the boat” but rather “wanted a smooth transition;” and,
that “aside from disciplinary issues, he was 99 percent sure that [they] would all have a
job.” The Board found that given these statements, A&A expressed an intent to hire the
employees and that in order to preserve its right to set initial terms, A&A was required to
clearly announce its intent to establish new conditions of employment on or before
February 13, 2014. Because it did not do so, “perfectly clear” successor status attached
and A&A’s unilateral implementation of new terms and conditions violated Section
8(a)(5).
V.
Whole Foods Market, Inc., 363 NLRB No. 87 (2015) - NLRB Holds
that “No-Recording” Rule Is Unlawful
Whole Foods Market, Inc. 363 NLRB No. 87 (2015), the NLRB recently held that
WFM’s rules prohibiting recording in the workplace, without prior management approval,
violated Section 8(a)(1) of the NLRA.
The rules at issue were contained in WFM’s General Information Guide (GIG),
which is applicable to all employees and is distributed company-wide. The first rule
appeared in a section entitled “Team Meetings” and states:
In order to encourage open communication, free exchange
of ideas, spontaneous and honest dialogue and an
atmosphere of trust, Whole Foods Market has adopted the
following policy concerning the audio and/or video recording
of company meetings:
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464
It is a violation of Whole Foods Market policy to record
conversations, phone calls, images or company meetings
with any recording device (including but not limited to a
cellular telephone, PDA, digital recording device, digital
camera, etc.) unless prior approval is received from your
Store/Facility Team Leader, Regional President, Global Vice
President or a member of the Executive Team, or unless all
parties to the conversation give their consent. Violation of
this policy will result in corrective action, up to and including
discharge.
Please note that while many Whole Foods Market locations
may have security or surveillance cameras operating in
areas where company meetings or conversations are taking
place, their purposes are to protect our customers and Team
Members and to discourage theft and robbery. 363 NLRB
No. 87, slip op. at 1.
The second rule was in a section of the GIG headed “Team Member
Recordings:”
It is a violation of Whole Foods Market policy to record
conversations with a tape recorder or other recording device
(including a cell phone or any electronic device) unless prior
approval is received from your store or facility leadership.
The purpose of this policy is to eliminate a chilling effect on
the expression of views that may exist when one person is
concerned that his or her conversation with another is being
secretly recorded. This concern can inhibit spontaneous and
honest dialogue especially when sensitive or confidential
matters are being discussed. Id.
WFM defended the rules on the ground that to permit recording at its town hall
and store meetings would “chill the dynamic,” i.e., it would make employees reluctant to
voice their opinions about store management, which would conflict with WFM’s “speak
up and speak out” culture and be disruptive to “team harmony.” WFM also argued that
recording would compromise its internal appeal procedure for employment termination
decisions. 363 NLRB No. 87, slip op. at 2.
An administrative law judge agreed with WFM and found that the no-recording
rules challenged by the General Counsel “cannot reasonably be read as encompassing
Section 7 activity,” relying in part on WFM’s explanation of their purpose, i.e., “the
elimination of a chilling effect on the expression of views.” Accordingly, he concluded
that maintenance of the rules was not an unfair labor practice and recommended that
the complaint be dismissed. 363 NLRB No. 87, slip op. at 2.
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465
Contrary to the ALJ, the Board found that the rules in question would chill
protected activity, noting that “[p]hotography and audio or video recording in the
workplace, as well as on the posting of photographs and recordings on social media,
are protected by Section 7 if employees are acting in concert for their mutual aid and
protection and no overriding employer interest is present.” 363 NLRB No. 87, slip op.
at 3. Elaborating, the Board said: “Such protected conduct may include, for example,
recording images of protected picketing, documenting unsafe workplace equipment or
hazardous working conditions, documenting and publicizing discussions about terms
and conditions of employment, documenting inconsistent application of employer rules,
or recording evidence to preserve it for later use in administrative or judicial forums in
employment-related actions.” Id.
In finding an unfair labor practice, the Board observed that “[t]he rules at issue
here unqualifiedly prohibit all workplace recording,” pointing to the testimony by a WFM
witness that the no-recording rules apply “regardless of the activity that the employee is
engaged in, whether protected concerted activity or not.” 363 NLRB No. 87, slip op. at
4. The Board distinguished Flagstaff Medical Center, 357 NLRB No. 65 (2011), enf’d in
relevant part, 715 F.3d 928 (D.C. Cir. 2013), relied on by WFM. In that case, the NLRB
had held that a policy prohibiting use of cameras in a hospital setting did not violate the
Act, explaining that “in light of the weighty patient privacy interests and the employer’s
well-understood HIPAA obligation to prevent the wrongful disclosure of individually
identifiable health information, employees would reasonably interpret the rule as a
legitimate means of protecting those interests, not as a prohibition of protected activity.”
363 NLRB No. 87, slip op. at 4. Turning next to WFM’s business justification, the Board
found that it was “not without merit,” but noted that “it is based on relatively narrow
circumstances, such as annual town hall meetings and termination-appeal peer panels,
and is not nearly as persuasive or compelling as the patient privacy interest in Flagstaff;
it thus fails to justify the rules’ unqualified restrictions on Section 7 activity.” 363 NLRB
No. 87, slip op. at 5.
Member Miscimarra dissented. Agreeing with the ALJ’s reasoning as well as
WFM’s argument that the no-recording rules were intended to encourage employee
communications, including those protected by Section 7, he would have dismissed the
complaint. In his opinion, “employees would reasonably read the rules to safeguard
their right to engage in union-related and other protected conversations,” pointing to
their statement of purpose, i.e., “to encourage open communication, free exchange of
ideas, spontaneous and honest dialogue and an atmosphere of trust.” 363 NLRB No.
87, slip op. at 7.
A petition for review of the Board’s order is pending in the Court of Appeals for
the Second Circuit.
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VI.
Columbia University, 364 NLRB No. 90 (August 23, 2016) –
Once Again, NLRB Holds That Graduate Student Assistants
Are Employees . . . and Students
A Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran
held that graduate student assistants who have a common law employment relationship
with their university are statutory employees under the National Labor Relations Act.
The Board overruled Brown University, 342 NLRB 483 (2004), and returned to its
holding in New York University, 332 NLRB 1205 (2000). The Board majority determined
that the Brown University Board erred as a matter of statutory interpretation and, in
doing so, deprived an entire category of workers the protections of the Act without
sufficient justification in either the language of the statute or its underlying purposes.
The majority found that employee status is not precluded by the existence of an
academic relationship as well.
Overview of Precedent
The Board first addressed the status of graduate assistants in 2000, when it decided
NYU. In that case, the Board found that “ample evidence exists . . . that graduate
assistants plainly and literally fall within the meaning of ‘employee’ as defined in Section
2(3).” 332 NLRB at 1206. The NYU Board based its holding on the breadth of the
statutory definition of “employee,” the lack of any explicit statutory exclusion for
graduate assistants, and the facts of that case establishing that the assistants were
compensated by the university for services they performed under the university’s
direction and control. The NYU Board relied on its recent decision in Boston Medical
Center, 330 NLRB 152 (1999), holding that house staff at a teaching hospital are
statutory employees entitled to engage in collective bargaining. Specifically, the Board
found that Boston Medical Center supported its policy determination that collective
bargaining is feasible in the university context.
Four years later, in a sharply-divided decision, the Board overruled NYU in Brown
University. The Brown University majority rejected NYU’s reliance on the existence of a
common-law employment relationship and found that even if such a relationship
existed, statutory coverage should attach only if the relationship between the graduate
student and the university is primarily economic in character. Finding that graduate
assistants were primarily students, the Brown University Board determined they were
excluded from statutory coverage. Additionally, the Brown University majority cited, as
policy reasons for its holding, its belief that collective bargaining is not well suited to
educational decision making and that a change in emphasis from educational to
economic concerns would be “detrimental to both labor and educational policies.” 342
NLRB at 489 (citations omitted).
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Analysis
The Board majority in Columbia University considered both the statutory language and
the Act’s underlying policies in reaching its conclusion that when student assistants
have an employment relationship with their university under the common law test, this
relationship is sufficient to establish that the student assistant is a Section 2(3)
employee for all statutory purposes.
The Statutory Language
The majority opinion notes that Section 2(3) of the Act defines “employee” to “include
any employee” and that the Supreme Court has observed that the “breadth” of that
provision is “striking.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984). Further, while
Section 2(3) lists certain exceptions to its definition of “employee,” none is applicable to
students generally or student assistants in particular. Because the Act does not offer a
definition of the term “employee” itself, the Board and the courts must infer that
Congress intended to incorporate the common-law meaning. The Board majority
determined that the “fundamental error” of the Brown University decision was to look not
only at whether an employment relationship exists, but also whether some other
relationship between the employee and employer is the primary one. This standard,
according to the majority, is not derived from the text of Section 2(3) and is not
supported by the fundamental policies of the act. Rather, the majority asserts, where an
employment relationship exists, there should be compelling reasons before the Board
excludes a category of workers from the Act’s coverage.
The Policy Considerations
The Act makes clear that federal labor policy is to “encourage[e] the practice and
procedure of collective bargaining,” and to protect workers “full freedom” to choose
collective bargaining representation. 29 U.S.C. 151. The Board majority concluded that
“[p]ermitting student assistants to choose whether they wish to engage in collective
bargaining – not prohibiting it – would further the Act’s policies.” 364 NLRB No. 90, p. 7
(emphasis in original). The majority further asserted that the Brown University Board
“failed to demonstrate that collective bargaining between a university and its employed
graduate students cannot coexist successfully with student-teacher relationships, with
the educational process, and with the traditional goals of higher education.” Id. Rather,
the majority points to both the analogous experiences of public universities with
collective bargaining by students and private universities with faculty bargaining as
evidence that unions and universities can successfully navigate collective bargaining
without harming the goals of higher education.
In applying its holding to the facts of the case, the Board majority concluded that all
petitioned-for student assistants are statutory employees and that the unit sought is
appropriate for collective bargaining. The case was remanded to the Regional Director
for determination of unresolved issues of voter eligibility.
13
468
Member Miscimarra dissented, arguing that Congress did not intend for collective
bargaining to be the means by which students attempt to exercise control over the
expenses associated with higher education. In his opinion, students' service as
teaching or research assistants is "an incidental aspect of their education." Accordingly,
he is also of the view that the intrusion of collective bargaining into the academic setting
-- including the potential for the use of economic weapons -- fundamentally changes the
relationship between students and their academic institutions, and will have a negative
impact on the "far more important" goal of completing degree requirements on time.
VII.
DOL “Persuader Rule” – Update on Status of Pending Litigation
Brief Summary of the Persuader Rule
In March 2016, the U.S. Department of Labor (“DOL”) published its final rule
addressing the “advice exemption” to the so-called “Persuader Rule” (the “Rule”) under
the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). The Rule,
which was to have gone into effect on July 1, 2016, narrows the advice exemption by
changing the definitions of reportable “persuader activity” and non-reportable “advice,”
and by modifying the reporting requirements in connection with “persuader activity,”
revising the forms filed by employers (Form LM-10) and labor-relations consultants
(Form LM-20).
The effect of these changes is that, for the first time, the Rule imposes upon
employers and labor relations consultants, including attorneys, the obligation to file
public reports with DOL disclosing any advice that even “indirectly persuades”
employees regarding their exercise of rights to engage in organizational activity and/or
collective bargaining. The existing Rule only requires such reports when a consultant
makes direct contact with employees. As reformulated by the DOL, the Rule would
apply not only to persuader communications during organizing and bargaining, but also
to certain routine employment-related counseling, e.g., drafting of employer policies if
their purpose is to directly or indirectly persuade regarding the exercise of rights under
Section 7 of the NLRA.
Status of Legal Challenges to the Rule
Shortly after the Rule’s publication, several employer associations and other
entities filed three lawsuits against DOL, seeking to enjoin implementation of the Rule.
These actions were filed in the District of Minnesota, the Northern District of Texas, and
the Eastern District of Arkansas. Each lawsuit challenges the Rule in similar ways,
arguing that it (1) exceeds the scope of DOL’s authority under the LMRDA; (2) is
arbitrary and capricious; (3) conflicts with existing state rules governing attorneys’
professional responsibility; (4) violates free speech and association rights protected by
the First Amendment; (5) is void for vagueness; and, (6) violates the Regulatory
Flexibility Act. The cases have proceeded on separate tracks and are at various stages
of litigation. Notably, a nationwide preliminary injunction was issued in the Texas case
enjoining implementation and enforcement of the new Rule.
14
469
In the Minnesota case, on June 22, 2106, the court found that plaintiffs had
shown a likelihood of success on the merits, specifically that the new Rule requires the
reporting of certain activities that are exempt from disclosure under the LMRDA, but
nevertheless refused to issue a preliminary injunction enjoining implementation of the
Rule because the court did not believe plaintiffs had established they were likely to
suffer irreparable harm in the absence of injunctive relief. In refusing to grant an
injunction, the court stated its preference to allow the Rule to take effect and leave
parties who wish to challenge the Rule to raise their arguments in opposition to an
actual enforcement action brought by DOL. Thus, the case has proceeded on the
merits, with summary judgment motions due beginning on September 16, 2016.
In the Texas case, the court issued a nationwide preliminary injunction on June
27, 2016, halting implementation of the new Rule just prior to its effective date. The
court found that plaintiffs had demonstrated a likelihood of success on the merits,
noting, among other things, that the Rule exceeded DOL’s authority under the LMRDA
by effectively eliminating the advice exemption. The court also found the Rule to be
arbitrary, capricious and an abuse of discretion, inasmuch as it reversed DOL’s
longstanding position of over 50 years, without conducting any studies or independent
analyses supporting such action. Moreover, the court found that the Rule would cause
irreparable harm by, among other things, reducing employer access to full, complete,
un-conflicted legal advice, and burdening First Amendment rights.
The injunction prevented DOL from implementing and enforcing the new Rule
and relieved employers and consultants who engage only in indirect persuader activity
from the reporting obligations that the revised advice exemption would have required.
In light of the nationwide preliminary injunction, DOL has indicated that the new Forms
LM-10 and LM-20 will not go into effect until further notice from DOL and that employers
and consultants should continue to complete the preexisting versions of those forms.
While the case was scheduled to proceed on the merits, with the court recently revising
its scheduling order and requiring that amended pleadings be filed by November 15,
2016 and summary judgment motions be filed in July 2017, DOL filed a notice of
interlocutory appeal on August 25, 2016, seeking review in the Fifth Circuit of the court’s
decision granting the nationwide injunction.
In the Arkansas case, the court has yet to rule on plaintiffs’ motion for a
preliminary injunction and probably will not do so given the nationwide preliminary
injunction issued in the Texas case. Summary judgment motions and amicus briefs in
support of such motions were filed at the end of August 2016. Accordingly, the first final
ruling on the validity of the new Rule may be issued in the Arkansas case, despite the
fact that the court has not ruled on the motion for an injunction.
15
470
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472
OFFICE OF THE GENERAL COUNSEL
MEMORANDUM GC 16-03
May 09, 2016
TO:
All Regional Directors, Officers-in-Charge,
and Resident Officers
FROM:
Richard F. Griffin, Jr., General Counsel /s/
SUBJECT:
Seeking Board Reconsideration of the Levitz Framework
This memorandum sets forth the new procedure that Regions should follow after making
a determination to issue complaint alleging that an employer has violated Section 8(a)(5) by
unlawfully withdrawing recognition from an incumbent union absent objective evidence that the
union actually had lost majority support. This procedure includes pleading an alternative theory
of violation in the complaint and incorporating the attached model argument into the briefs
submitted to administrative law judges and the Board.
Extant Board law permits employers to unilaterally withdraw recognition from an
incumbent union based on objective evidence that the union has actually lost majority support.
See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717 (2001). In Levitz, the Board
rejected the General Counsel’s position that employers should not be permitted to withdraw
recognition absent the results of Board elections. Rather, it adopted a framework that increased
the showing required of employers to unilaterally withdraw recognition and decreased the
showing required for obtaining RM elections, anticipating that employers would be likely to
withdraw recognition only if the evidence before them “clearly indicate[d]” that a union had
“lost majority support.” Id. at 726. However, the Board noted that it would revisit this
framework if experience showed that it did not effectuate the purposes of the Act. Id. at 726.
Experience has shown that the option left available under the Levitz framework for
employers to unilaterally withdraw recognition has proven problematic. It has created peril for
employers in determining whether there has been an actual loss of majority support for the
incumbent union, has resulted in years of litigation over difficult evidentiary issues, and in a
number of cases has delayed employees’ ability to effectuate their choice as to representation.
As a result, Levitz has failed to serve two important functions of federal labor policy noted in
that decision, specifically, promoting stable bargaining relationships and employee free choice.
Id. at 723-26.
In order to best effectuate these central policies of the Act, Regions should request that
the Board adopt a rule that, absent an agreement between the parties, an employer may lawfully
withdraw recognition from a Section 9(a) representative based only on the results of an RM or
RD election. This proposed rule will benefit employers, employees, and unions alike by fairly
473
and efficiently determining whether a majority representative has lost majority support.
Moreover, the proposed rule is even more appropriate now because the Board’s revised
representation case rules have streamlined the election process.
Thus, in order to place this issue before the Board, in cases where a Region has made a
determination to issue complaint alleging that an employer has violated Section 8(a)(5) by
unilaterally withdrawing recognition under extant law, it should also plead, in the alternative,
that the employer violated Section 8(a)(5) by unilaterally withdrawing recognition absent the
results of a Board election. Regions should also include in their briefs to administrative law
judges and to the Board the model brief section attached below.
If a Region has any questions or concerns regarding this new policy, it should contact the
Division of Advice.
Attachment
Release to the Public
MEMORANDUM GC 16-03
474
[I.]
The Board Should Require that Employers Utilize Board Representation
Procedures to Fairly and Efficiently Determine Whether their Employees’ Exclusive
Bargaining Representative Has Lost Majority Support.
In Levitz Furniture Co. of the Pacific, 333 NLRB 717, 725-26 (2001), the Board stated
that it would revisit the framework it established for when employers may unilaterally withdraw
recognition from their employees’ exclusive bargaining representative if experience showed that
it did not effectuate the purposes of the Act. Experience has shown that the Levitz framework
has created peril for employers in determining whether there has been an actual loss of majority,
has resulted in years of litigation over difficult evidentiary issues, and in a number of cases has
delayed employees’ ability to effectuate their choice as to representation.
Thus, the General Counsel urges the Board to hold that, absent an agreement between the
parties, an employer may lawfully withdraw recognition from its employees’ Section 9(a)
representative based only on the results of an RM or RD election. 1 Such a rule would benefit
employers, employees, and unions alike by fairly and efficiently determining whether a majority
representative has lost majority support. It will also better effectuate the Act’s goals of
protecting employee choice and fostering industrial stability, and is even more appropriate now
because the Board’s revised representation case rules have streamlined the election process.
A.
The Board in Levitz sought to create a framework to encourage employer use
of RM elections and left open future consideration of the General Counsel’s
proposal to require exclusive use of RM elections to resolve questions of
majority support.
In Levitz, the then-General Counsel proposed that employers should be prohibited from
unilaterally withdrawing recognition. Id. at 719, 725. The Board acknowledged that its early
case law supported the General Counsel’s view. Id. at 721 & n.25. Specifically, it noted that in
1
The General Counsel does not seek any change to the holding in Levitz that employers can
obtain RM elections by demonstrating a good-faith reasonable uncertainty as to a
representative’s continuing majority status. Levitz, 333 NLRB at 717.
475
United States Gypsum Co., 90 NLRB 964, 966 (1950), decided shortly after Congress amended
the Act to provide for employer-filed petitions, the Board held that it was bad faith for an
employer to unilaterally withdraw recognition rather than file a RM petition, which it described
as “the method whereby an employer who, in good faith, doubts the continuing status of his
employees’ bargaining representative may resolve such doubt.” Levitz, 333 NLRB at 721. The
Levitz Board also acknowledged that the General Counsel’s proposed rule might minimize
litigation and be more protective of employee choice. Id. at 725. In this context, the Board
noted that elections are the preferred means of testing employee support, and that the proposed
rule would be more consistent with Linden Lumber Division v. NLRB, 419 U.S. 301, 309-10
(1974), which allows an employer to insist that a union claiming majority support prove it
through an election. Levitz, 333 NLRB at 725.
However, the Board rejected the General Counsel’s proposed rule and instead adopted a
rule that it believed would effectively encourage employer use of RM petitions by elevating the
evidentiary requirement for an employer’s unilateral withdrawal, while lowering the standard for
an employer’s filing of an RM petition. Id. at 717. The Board then concluded that under its new
framework, employers would be likely to unilaterally withdraw recognition only if the evidence
before them “clearly indicate[d]” that a union had “lost majority support.” Id. at 725. It stated
that if future experience proved otherwise, it could revisit the issue. Id. at 726.
B.
Experience under Levitz has failed to result in employers acting only where
the evidence before them “clearly indicates” a loss of majority support and
has caused protracted litigation undermining the core purposes of the Act.
In the 15 years since Levitz, the option left available under the Levitz framework for
employers to unilaterally withdraw recognition has proven problematic. In a number of cases
involving unilateral withdrawal, employers have acted based on evidence that did not “clearly
476
indicate[]” a loss of majority, causing protracted litigation over the reliability of that evidence.
This unnecessary litigation has resulted in significant liability for employers and substantial
interference with employee free choice. It also encourages the disclosure and litigation of
individual employees’ representational preferences, which can interfere with employees’
Section 7 rights.
A fundamental flaw with the Levitz framework is that it fails to account for the difficulty
of ascertaining whether evidence relied on by an employer actually indicates a loss of majority
support, creating significant liability even for employers acting in good faith. For example,
employers have unlawfully withdrawn recognition based on ambiguously worded disaffection
petitions that did not clearly indicate that the signatory employees no longer desired union
representation. See, e.g., Anderson Lumber Co., 360 NLRB No. 67, slip op. at 1 n.1, 6-7 (2014)
(written statements submitted by four employees that they did not want to be union members did
not show they no longer desired union representation), enforced sub nom., Pacific Coast Supply,
LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015). Employers have also unlawfully withdrawn
recognition where they relied on untimely disaffection petitions. Latino Express, 360 NLRB
No. 112, slip op. at 1 n.3, 13-15 (2014) (rejecting petition signed by employees during the
certification year, when the union has an irrebutable presumption of majority status). In other
cases, employers mistakenly relied on disaffection petitions that were invalid because they
contained signatures that employees had revoked. See, e.g., Scoma’s of Sausalito, LLC, 362
NLRB No. 174, slip op. at 3 (Aug. 21, 2015) (employees revoked signatures on disaffection
petition before employer withdrew recognition). Additionally, questions have arisen regarding
unit composition, creating confusion as to how many, and which employees would actually
constitute a majority. See, e.g., Vanguard Fire & Security Systems, 345 NLRB 1016, 1018
477
(2005) (finding employer unlawfully withdrew recognition where signatures on disaffection
petition were of non-unit employees), enforced, 458 F.3d 952 (6th Cir. 2006). Moreover,
employers have unlawfully withdrawn recognition based on facially valid disaffection petitions
that did not actually constitute objective evidence of a loss of majority support because they were
tainted by unfair labor practices. See, e.g., Mesker Door, Inc., 357 NLRB 591, 596-98 (2011)
(concluding that unlawful threats by employer’s attorney and plant manager had a causal
relationship with employees’ disaffection petition and thus the employer’s withdrawal of
recognition based on it was unlawful).
Protracted litigation over these evidentiary issues also has interfered with the right of
employees to choose a bargaining representative. It may take years of litigation before
employees deprived of their chosen union obtain a Board order restoring the union’s
representational role, which completely undermines their Section 7 rights in the interim. See,
e.g., id. (ordering employer to bargain with union five years after employer’s unlawful
withdrawal of recognition). Because a restorative bargaining order that operates prospectively
fails to compensate employees for their lost representation, employees are irreparably deprived
of what benefits their union could have obtained for them during the course of the employer’s
unlawful conduct. See Frankl v. HTH Corp., 650 F.3d 1334, 1363 (9th Cir. 2011) (affirming
Section 10(j) bargaining order in part because the Board’s inability to order retroactive relief for
a failure to bargain, partly due to an unlawful withdrawal of recognition, means employees will
never be compensated for “the loss of economic benefits that might have been obtained had the
employer bargained in good faith”).
At the same time, such litigation under Levitz can also delay the process for employees
who want to reject representation. For example, an unfair labor practice charge filed by an
478
incumbent union can create the “collateral effect of precluding employees from filing a
decertification election petition with the Board.” Scoma’s of Sausalito, LLC, 362 NLRB
No. 174, slip op at 1 n.2 (Member Johnson, concurring). See also Wurtland Nursing &
Rehabilitation Center, 351 NLRB 817, 820-21 (2007) (Member Walsh, dissenting) (noting that
if the employer had not unlawfully withdrawn recognition, the Board could have held an RM or
RD election to determine the unit employees’ true sentiments).
Finally, evidentiary disputes about the reliability of employee petitions have resulted in
the disclosure of individual employees’ union sympathies and litigation of their subjective
motivations for signing a petition. See, e.g., Scoma’s of Sausalito, 362 NLRB No. 174, slip op.
at 4-5 (reviewing multiple petitions and employee testimony to determine whether employees’
representative had majority support at the time of the withdrawal of recognition); Johnson
Controls, Inc., Case 10-CA-151843, JD-14-16 (NLRB Div. of Judges Feb. 16, 2016) (same).
Such open questioning of employees regarding their union support can chill the future exercise
of Section 7 rights. See National Telephone Directory Corp., 319 NLRB 420, 421 (1995)
(confidentiality interests of employees have long been a concern to the Board and “it is entirely
plausible that employees would be ‘chilled’ when asked to sign a union card if they knew the
employer could see who signed”) (internal citations omitted). The courts have also noted that
such inquiries are unreliable because of the pressure that employers may exert over their
employees to give favorable testimony. See Pacific Coast Supply, 801 F.3d at 332 n.8; NLRB v.
Gissel Packing Co., 395 U.S. 575, 608 (1969).
In short, the experience under Levitz has not yielded the results that the Board anticipated
and intended. Consistent with the General Counsel’s original recommendation in Levitz, the
Board should hold that, absent an agreement between the parties, an employer may lawfully
479
withdraw recognition from its employees’ Section 9(a) representative based only on the results
of an RM or RD election.
C.
A rule precluding employers from withdrawing recognition absent the
results of an RM or RD election will best effectuate the policies of the Act
and better accomplish what the Board set out to do in Levitz.
It is within the Board’s expertise and discretion to determine how a withdrawal of
recognition can be accomplished. See Linden Lumber, 419 U.S at 309-10 (relying on Board’s
expertise in affirming rule that union must petition for an election after an employer has refused
to recognize it based on a card majority); Brooks v. NLRB, 348 U.S. 96, 104 (1954) (noting that
matters “appropriately determined” by the Board include when employers can ask for an election
or the grounds upon which they can refuse to bargain). The Board should exercise its discretion
and adopt the rule proposed above to best effectuate the policies of the Act.
The proposed rule is more consistent with the principle that “Board elections are the
preferred means of testing employees’ support.” Levitz, 333 NLRB at 725. It is also more
consistent with the Act’s statutory framework and the Board’s early interpretation of the Act’s
provision providing for employer-filed petitions. As the Board held in United States Gypsum
Co. and referenced in Levitz, RM petitions are “the method” provided in the Act by which
employers may test a representative’s majority support. Levitz, 333 NLRB. at 721. Moreover,
the interests of both employers and employees would be best served by processing this issue
through representation cases, which are resolved more quickly than unfair labor practice cases. 2
Indeed, the Board’s new representation case rules, which have revised the Board’s blocking
charge procedures, have made elections an even more efficient manner of resolving
2
In FY 2015, 87.1% of representation cases were resolved within 100 days while 80.4% of
unfair labor practices were resolved within 365 days. See National Labor Relations Board
Performance and Accountability Report (2015) at 25-26.
480
representation questions. In light of these considerations, requiring an RM or RD election before
a withdrawal of recognition will best serve the purposes of protecting employee free choice and
industrial stability, which are the statutory policies the Board sought to protect in Levitz.
In the past, the Board’s blocking charge procedure had been the major concern regarding
the use of RM elections as a prerequisite for withdrawing recognition because of the potential
delay in proceeding to an election. See, e.g., Levitz, 333 NLRB at 732 (Member Hurtgen,
concurring) (“Faced with an RM petition, unions can file charges to forestall or delay the
election.”); B.A. Mullican Lumber & Mfg. Co., 350 NLRB 493, 495 (2007) (Chairman Battista,
concurring) (stating that “an RM petition leading to an election is superior to an employer’s
unilateral withdrawal of recognition,” but expressing concern about the potential delay caused by
union-filed blocking charges), enforcement denied, 535 F.3d 271 (4th Cir. 2008). However, the
Board’s new election rules should allay this concern. For instance, the rules impose heightened
evidentiary requirements; a party must now affirmatively request that its charge block an election
petition, file a written offer of proof in support of its charge, include the names and anticipated
testimony of its witnesses, and promptly make its witnesses available. See NLRB Rules and
Regulations Sec. 103.20 (effective April 14, 2015). If the Region determines that the proffered
evidence is insufficient to establish conduct interfering with employee free choice, it will
continue to process the petition and conduct the election. Id.
Indeed, initial data shows that this change has significantly reduced the number of
blocking charges. Between April 2014 and April 2015, in the year before the new election rules
went into effect, unfair labor practice charges blocked 194 of 2,792 election petitions. 3 Between
3
See NLRB News & Outreach, Fact Sheets, Annual Review of Revised R-Case Rules (Apr. 20,
2016), https://www.nlrb.gov/sites/default/files/attachments/news-story/node-4680/RCase%20Annual%20Review.pdf.
481
April 2015 and April 2016, in the year after the new election rules went into effect, charges
blocked only 107 of 2,674 petitions, a decrease of just over 40%. 4 This data shows that the more
efficient election procedures have largely resolved prior concerns regarding blocking charges.
Beyond the foregoing substantive and procedural reasons justifying the proposed rule, its
adoption will not interfere with other methods of dissolving an existing bargaining relationship
that do not involve unilateral action by an employer. Employees will still be able to exercise
their choice to not be represented by their current union by filing an RD petition, and they will be
able to do so without the threat of an employer’s unlawful withdrawal blocking an RD election.
In addition, the proposed rule will permit a voluntary agreement between the employees’
bargaining representative and their employer for withdrawal, whether this involves a union’s
disclaimer of interest or a private agreement between the parties to resolve the question. Finally,
if a bargaining representative, through its own egregious unfair labor practices creates an
atmosphere of employee coercion that renders a fair RM election improbable, the Board could
permit a unilateral withdrawal if an employer provided objective evidence of an actual loss of
majority support. 5
4
Id. In addition, since the implementation of the Board’s new election rules, RM petitions have
increased from 49 in each of FY 2013 and FY 2014 to 61 in FY 2015, demonstrating increased
employer confidence in the RM process. See Employer-Filed Petitions-RM, NLRB,
https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/employer-filedpetitions-rm (last visited May 3, 2016).
5
Cf. Union Nacional de Trabajadores (Carborundum Co.), 219 NLRB 862, 863-64 (1975)
(revoking union’s certification based on its violent and threatening conduct and extensive record
of similar aggravated misconduct in other recent cases), enforced on other grounds, 540 F.2d 1,
12-13 (1st Cir. 1976), cert. denied, 429 U.S. 1039 (1977); Laura Modes Co., 144 NLRB 1592,
1596 (1963) (refusing to grant union bargaining order remedy based on card majority where
union created atmosphere of coercion based on its agents physically assaulting employer officials
who displayed unwillingness to recognize their employees’ rights under the Act).
482
For the above reasons, the Board should exercise its discretion to modify its standard to
hold that, absent an agreement between the parties, an employer may lawfully withdraw
recognition from its employees’ Section 9(a) representative based only on the results of an RM
or RD election.
483
484