United States: NLRB Holds That Employer Does Not Taint Decertification Effort By Promoting The Employee Responsible For The Petition

In a recent decision, AIM Aerospace Sumner, Inc.,1 the National Labor Relations Board (Board) held that an employer could rely on a decertification petition to withdraw recognition from a union, even though the employer committed an unfair labor practice by promoting the employee responsible for the petition. The decision is welcome news for employers with unionized workforces. It offers them more confidence that they can rely on a decertification petition to withdraw recognition without having the petition later undermined by a tangential unfair labor practice charge.

Legal Background

Several well-settled principles were at work in the Board's decision. In general, when a union is first certified, it enjoys an irrebuttable presumption of majority support for at least one year. Likewise, it enjoys a three-year presumption after it ratifies a collective-bargaining agreement. When these periods expire, the union still enjoys a presumption, but the presumption can be rebutted. One way an employer can rebut the presumption is by proving that the union in fact lost majority support—for example, by showing that a majority of employees signed a decertification petition. In that situation, an employer can withdraw recognition from the union and stop bargaining.

The employer cannot, however, withdraw recognition when its own actions caused the union to lose support. The Board requires employees to make decertification decisions on their own, without the employer's interference. So if an employer causes employees to abandon a union, it cannot use the union's loss of support as a reason to withdraw recognition.

Of course, determining whether the employer's conduct caused employees to abandon the union isn't always easy. The Board itself can't even always decide what test to apply. Currently, it uses two different tests. The first comes from Hearst Corp.,2 where the employer assisted with a decertification petition by soliciting signatures. The Board held that in such cases, it would presume that the employer's actions caused the loss of support—no further proof necessary.

The second test comes from Master Slack Corp.,3 where the employer committed several "flagrant" violations unrelated to the decertification petition. The Board applied a four-factor test4 to decide whether these unrelated violations affected the employees' decision. Relying primarily on the timing at issue—the employer's violations occurred nearly a decade earlier—the Board found no connection to the decertification petition and allowed the employer to withdraw recognition.

These tests ostensibly apply in different scenarios. While Hearst applies when the employer directly "instigates" or "propels" the decertification efforts, Master Slack applies when there is "no straight line" between the employer's actions and the decertification petition.

The AIM Aerospace Sumner, Inc. Ruling

But these distinctions can easily blur—as demonstrated in AIM Aerospace Sumner, Inc. There, the Board members sparred over which test applies when the employer promotes an employee for instigating a decertification petition. The chief instigator was Lori-Ann Downs-Haynes, a laminator employed in the bargaining unit. Along with more than a dozen other applicants, she applied for a receiving-clerk position. She was not selected; in fact, she wasn't even interviewed. Later, she began agitating against the union. She and another employee put together a decertification petition and circulated it among the bargaining unit. She also told the company's management that she was trying to decertify the union. While her petition was circulating, the person hired for the clerk position abruptly resigned. Downs-Haynes applied again and was selected. Two weeks later, she presented management with the signed petition, and the company withdrew recognition from the union.

The Board members agreed that the company had promoted Downs-Haynes to reward her for initiating the decertification petition. They split, however, over whether her promotion tainted the petition and prevented the company from withdrawing recognition.

In the majority, Chairman Ring and Member Emanuel held that it did not. They reasoned that the company had not directly assisted Downs-Haynes with her decertification efforts, so Master Slack controlled. And under that case, there was no evidence showing that the promotion caused the other employees to abandon the union. So while the company violated the National Labor Relations Act by rewarding Downs-Haynes for her efforts, that violation did not taint the decertification itself.

By contrast, Member McFerran would have applied the Hearst test. She argued in dissent that because some employees may have perceived the promotion as a reward for the decertification, they would have been motivated to abandon the union and seek similar rewards for themselves. Given that possibility, there was a "straight line" between the company's violation and the decertification. No "specific proof" of a connection was necessary; the Board could assume a connection and bar the employer from withdrawing recognition.

The Board's opinion clarifies the dividing line between Hearst and Master Slack. It stresses that Hearst applies only when the employer directly assists with the decertification drive—for example, by initiating the drive itself or soliciting signatures. Only then will the Board presume a connection between the employer's actions and the union's loss of support. Otherwise, the Board will apply Master Slack. It will require the General Counsel to prove a connection between the employer's actions and the decertification and will not simply presume one exists.

Practical Considerations

For employers, this ruling offers some reassurance. After any decertification, unions often file some type of unfair labor practice charge. The AIM Aerospace Sumner, Inc. decision helps to mitigate some of the risks employers face when withdrawing recognition, in light of the likelihood that they will be defending charges that may be only tenuously related to the decertification. AIM Aerospace Sumner, Inc. reinforces that violations will undermine the withdrawal only if they caused the decertification. Moreover, the Board seems to be taking the Master Slack causation requirement seriously: tangentially related violations (like Downs-Haynes's promotion) won't be enough to vacate the decertification.

That said, decertification efforts can raise a myriad of other knotty legal issues. When facing a decertification, employers should consider seeking the advice of experienced labor and employment counsel.

Footnotes

1. 367 N.L.R.B. No. 148 (June 6, 2019).

2. 281 N.L.R.B. 764 (1986).

3. 271 N.L.R.B. 78 (1984).

4. These factors are (1) the length of time between the violation and the withdrawal; (2) the nature of the violation; (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the violation on employee morale, organizational activities, and membership in a union. Id. at 84.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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