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Employer Did Not Unlawfully Act on Decertification Petition Signed While Remedial Notice Was Posted

By Thomas V. Walsh
  • August 12, 2003

An employer legally withdrew recognition from a union based on a decertification petition signed by workers during the 60-day period that the employer had agreed to post a notice that it would not assist workers in decertification efforts. The U.S. Court of Appeals for the District of Columbia Circuit overturned a decision by the National Labor Relations Board that the employer had unlawfully withdrawn recognition of the union, saying the notice was part of a settlement of unfair labor practices charges wherein the employer had not admitted to violating workers' rights under the National Labor Relations Act. In so doing, it appears the court has upset the basic NLRB notion that the "taint" of an unfair labor practice charge lingers until the end of the posting period following such a settlement.

The employer, a resort in Puerto Rico, had agreed to recognize the union that already represented the employees. Six weeks following the recognition, a worker filed a decertification petition with the NLRB. The union filed unfair labor practice charges alleging the employer had unlawfully refused to bargain and had coerced the employees to sign the petition. In a subsequent settlement, the union withdrew the refusal-to-bargain charge, and the employer agreed not to assist or solicit workers to decertify the union and not to promise increased pay or benefits for supporting a decertification effort. It also agreed to post a notice for 60 days describing the settlement agreement, including the fact that the employer did not admit to violating the NLRA. In addition, the worker agreed to withdraw the decertification petition.

Subsequently, another decertification petition was filed, this time with signatures of 70 percent of the workers collected during the posting period. Based on the petition, the employer withdrew recognition, and the union filed another unfair labor practice charge.

In deciding that the decertification petition was tainted by the 60-day notice, the Labor Board applied a legal standard that allowed an employer to show evidence refuting the support that the union is presumed to have among a majority of the workers it represents. That legal standard has since been modified to allow an employer to show the union, in fact, lacked the support of a majority of workers, but the new standard was not applied in this case which was already pending at the time the standard was modified.

Overturning the Board's ruling, the U. S. Court of Appeals for the District of Columbia Circuit found the decertification petition was not tainted by the 60-day notice. The Labor Board had fashioned a new but unsupported way to insure "that the remedy contained in a settlement agreement achieves its purpose," the court reasoned. Relying only on the provisions of the employer's settlement, which contained no admission of wrongdoing under the NLRA, the court said, "This falls far short of satisfying the substantial evidence standard."

While the court noted that an employer may not withdraw union recognition based on a good-faith doubt that the union still has majority support if unremedied unfair labor practices significantly contributed to the union's loss of support, there had been no finding, or admission by the employer that it had committed an unfair labor practice. The Board argued that, as a policy reason, it must have the authority to give effect to its settlement remedies, regardless of whether they were agreed to voluntarily.

According to court, however, "the Board used the charged conduct to support its conclusion that the Company caused the employees to become disaffected with the Union, thereby tainting the decertification petition and making the Company's resulting withdrawal of recognition a violation." The court concluded the Labor Board's rule cannot stand because it would allow it to find a violation of the NLRB without substantial evidence of wrongdoing. [BPH & Co., as successor to HEPC Palmas Inc., d/b/a Wyndham Palmas del Mar Resort and Villas v. NLRB, DC Cir., No. 01-1468 (6/27/03).]

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