Monday, November 10, 2014

Directing the delicate union decertification dance

It was one of the most tense moments of my career. One for the union, one for the employer. That’s how the folded pieces of paper lifted out of the previously sealed box. I sat in the conference room of my client, a company saddled with a labor union it did not want, and a group of employees, who, feeling the same way, filed a decertification petition with the NLRB. One for the union, one of the employer, all the way to 16 – 16. We all held our breath as the board agent lifted the 33rd piece of paper out of the box, unfolded it, and announced that by a margin of one, my client’s employees were no longer represented by a labor union.

I thought of this story over the weekend as I read in the New York Times that the NLRB had issued a complaint against Cablevision, accusing it of threatening to deny a group of employees a pay raise unless they voted to quit their union, and further accusing it of illegally sponsoring a nonbinding poll to determine those same employees wanted to leave their union.

Decertification is a tricky dance. An employer cannot solicit, support, or assist in the initiation, signing, or filing of a decertification petition by its employees. It can, however, provide “ministerial aid” to its employees in response to their own efforts. The test is whether the specific conduct had “the tendency … to interfere with the free exercise of the rights guaranteed to employees under the Act.” Thus, an employer cannot poll its employees to determine whether they support decertification, nor can it help employees circulate the decert petition. It likely can, however, direct employees to their local NLRB office in response to a question about decertification.

What does an employer’s unlawful assistance of a decertification campaign look like? McKesson Corp. [pdf], decided last week by an NLRB Administrative Law Judge, shows us. In that case, the employer assisted a group of employees (to whom it referred as the “magnificent seven”) to circulate a decertification petition. According to the ALJ:

The credited evidence establishes that these individuals did not act on their own but rather on behalf of management and with management’s assistance…. I find that the respondent had embarked on a plot to rid itself of the union and that the seven individuals collecting signatures were part of the plot.

Employers need to be mindful of the distinction between unlawful solicitation, support, or assistance, versus lawful ministerial aid. Critically, employers cannot interject in a decertification campaign. If you have any doubt on where the line is in your case, consult with your labor counsel to avoid a costly error.