Search form

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of Columbia Circuit overturned a decision by the National Labor Relations Board that the employer had unlawfully withdrawn recognition of the union, saying the notice was part of a settlement of unfair labor practices charges wherein the employer had not admitted to violating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).]

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at

See AllRelated Articles You May Like

June 25, 2019

Scabby the Rat Could Face Extermination under Labor Board General Counsel’s Recommendation

June 25, 2019

A recent Advice Memorandum from the National Labor Relations Board’s (NLRB) General Counsel’s office (GC Office) has recommended that the Board engage in pest control. As background, federal labor law strictly regulates “secondary” activity by unions, including protests against “neutral” businesses with whom there is no dispute. The... Read More

June 19, 2019

Top Five Labor Law Developments for May 2019

June 19, 2019

The National Labor Relations Board (NLRB) has announced its rulemaking agenda for the coming months. The Board stated that it plans to engage in additional rulemaking in the following areas: 1) representation case procedures (governing union elections); 2) standards for “blocking charges” (governing when unfair labor practice charges... Read More

June 3, 2019

Labor Board to Revisit Right of Graduate Students to Unionize

June 3, 2019

The National Labor Relations Board (NLRB) has announced that it will propose rules on the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)), with... Read More

Related Practices