On Nov. 20, 2019, General Counsel Peter Robb teed up what could be a significant shift in National Labor Relations Board (NLRB) law governing neutrality agreements between employers and unions. The issue presented to the general counsel was precipitated by an unfair labor practice charge filed by Gladys Bryant, an Embassy Suites housekeeper, and funded by the National Right to Work Foundation (NRTW). The charge followed a successful campaign by UNITE HERE! Local 8 to organize hotel workers at the newly opened Embassy Suites in Seattle, which voluntarily recognized the union pursuant to a card check.
Neutrality agreements typically include an employer’s commitment to remain neutral during a union organizing campaign and to voluntarily recognize the union if a majority of employees sign union authorization cards. Voluntary recognition is a lawful means of establishing a union’s representative status.1 It has also been a historically favored element of national labor policy promoting industrial peace.2
Bryant’s charge alleged that Embassy Suites, pursuant to a neutrality agreement, unlawfully assisted the union (and the union unlawfully accepted such assistance) by granting union organizers access to the hotel to meet with employees and by providing the union with a list of employee names and contact information. The charge further alleged that the union’s majority support was tainted as a result of that assistance. The NLRB regional director dismissed the charge, finding “no evidence that the [neutrality] agreement entered into by the Employer and the Union violates current Board law.” NRTW filed an appeal on behalf of Bryant.
Robb reversed the agency’s course and sustained the appeal. He concluded that Embassy Suites “arguably” violated Sections 8(a)(1) and (2) of the National Labor Relations Act (NLRA) by entering into a neutrality agreement that provided more than “ministerial aid” to the union during its campaign to organize the hotel workers.3 By extension, Robb concluded that the union violated Section 8(b)(1)(A) of the NLRA by accepting the employer’s aid. The general counsel remanded the case to the regional director to issue a complaint against Embassy Suites and the union.
This case, and the issue of the continuing legality of neutrality agreements, will ultimately make its way to the board after an administrative hearing. Settlement is unlikely given that NRTW is funding the case as part of its anti-union strategic litigation efforts across the country, and the general counsel has implicitly expressed that the board should use this case to overturn its precedent on neutrality agreements.
It is well established that a certain amount of employer cooperation with union organizing efforts, including entering into neutrality agreements, is lawful under the NLRA. That includes, for example, granting a union access to the workplace to meet with employees on company time and providing a union with a list of employees and their contact information.4 The board considers the totality of the employer’s conduct to determine whether it tends to inhibit employee free choice or to interfere with the arms-length relationship between an employer and a union during an organizing campaign.5 The current administration’s board has applied those long-standing principles as recently as August 2018.6
Robb’s letter sustaining Bryant’s appeal suggests those principles may now be on the chopping block. The general counsel also tacitly signaled to the board that the test that applies to an employer’s conduct during decertification campaigns should also apply to an employer’s conduct during union organizing campaigns. In the context of an employee or group of employees’ efforts to decertify a union, employers are prohibited from taking any action that goes beyond “ministerial aid.”7 Merely providing information in response to employee questions regarding decertification — e.g., general and accurate information about the process — is lawful “ministerial aid.” Providing employees with employer property or paid time off to assist a decertification campaign crosses the line.8 If applied to neutrality agreements, the ministerial aid test could make it unlawful for employers to agree to grant unions special access to their property. On the other hand, providing employee lists is not enough to taint a decertification under the ministerial aid standard, which suggests that it would also not be enough to taint a union’s showing of majority support.9
This is just one example of recent efforts to curb neutrality agreements and limit voluntary recognition. On Aug. 12, 2019, the board issued a Notice of Proposed Rulemaking that would modify the current recognition bar by creating regulatory requirements of notice and a 45-day open period to file an election petition (e.g., to seek decertification) before any voluntary recognition operates as a bar. Other cases pending before the NLRB allege that neutrality agreements infringe on the Section 7 rights of employees who do not support a union, and new court challenges to neutrality agreements under Section 302 of the Labor Management Relations Act are in the pipeline.
Paige McKissock is an attorney at Segal Roitman LLP in Boston, where she devotes her practice to representing unions and employees in a broad range of labor and employment matters.
1 NLRB v. Gissel Packing Co., 395 U.S. 575, 595-600 (1969). The NLRA makes clear that Congress viewed board elections as an available recourse when an employer refuses to voluntarily recognize a union. See 29 U.S.C. § 159(c)(1)(A) (Board conducts an election pursuant to a petition demonstrating that “a substantial number of employees … wish to be represented for collective bargaining and that their employer declines to recognize their representative…”).
2 See Dana Corp., 356 NLRB 256, 262 (2010).
3 Section 8(a)(1) prohibits, among other things, interference by employers with employees’ right under Section 7 to select or reject a union. A corollary of the same prohibition applicable to unions is found in Section 8(b)(1)(A). Section 8(a)(2) prohibits employers from interfering with the formation of a union or contributing financial or other support to it.
4 See, e.g., Longchamps Inc., 205 NLRB 1025, 1031 (1973) (no unlawful assistance where employer permitted union to address employees on company property during work time); Paragon Sys. Inc., 2015 WL 6593082, Case No. 16-CA-144279 at *3-4 (2015), citing Crompton-Shenandoah, 135 NLRB 694, 696-97 (1962) (employer did not violate Section 8(a)(2) by providing union with list of employees and their contact information).
5 NLRB Office of the General Counsel, Advice Memorandum, Volkswagen Grp. of Am. (Jan. 17, 2014); Coamo Knitting Mills Inc., 150 NLRB 579, 582 (1964).
6 See Garner/Morrison LLC, 366 NLRB No. 184 (Aug. 27, 2018) (presence of employer executives at union meeting to solicit authorization cards did not taint union’s showing of majority support through card check).
7 Employer conduct that initiates, sanctions or supports a decertification effort by employees violates Section 8(a)(1). Royal Himmel Distilling Co., 203 NLRB 370, 375–77 (1973); Craftool Mfg. Co., 229 NLRB 634, 637 (1977) (management’s expressed support of decertification petition, suggested language for petition, and permitted circulation of petition on work time went beyond “ministerial aid”).
8 See, e.g., Dayton Blueprint Co., 193 NLRB 1100, 1107–08 (1971) (employer violated Section 8(a)(1) by providing company car to employee who filed decertification petition to drive to board’s Regional Office to file petition without docking his pay for the time).
9 See, e.g., Ironwood Plastics Inc., 345 NLRB 1244, 1255 (2005) (employer did not violate Section 8(a)(1) by providing anti-union employee with list of employees and allowing him to collect signatures for decertification petition during work time).