How Will Decertification Petitions Fare Under the NLRB’s New Rule?

By: Linda Joseph, Esq., Schröder, Joseph & Associates, LLP, Buffalo, NY [Submitted on behalf of the Labor & Employment PAC]

In late 2014, the National Labor Relations Board (“NLRB”) issued a Final Rule governing representation-case procedures. It claimed to be designed to “remove unnecessary barriers to the fair and expeditious resolution of representation questions.” The very interesting question the Final Rule’s amendments raise is whether the Board will treat decertification petitions in the same fashion as certification petitions under the new amendments. Our firm, Schroder, Joseph & Associates, LLP, had the opportunity to represent an employer in the very first hearing held under the Final Rule before NLRB Region 3. We were excited about the prospect since the Petition was the THIRD decertification Petition filed with Region 3 concerning this employee and the prior two were dismissed. The Petitioner previously had been the union steward for the facility for many years and claimed to have at least 70% support from the employees.

The Final Rule issued by the NRLB in December, 2014 claims to “streamline Board procedures, increase transparency and uniformity across the regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.” The amendments implemented under the Final Rule include changes such as: (1) calling for representation elections to be held within 10 to 21 days after filing of a Petition; (2) enabling electronic filing and transmission of documents, including Petitions; (3) setting pre-election hearings to open 8 days after a hearing notice is served on the parties with these hearings to be set no more than 14 days after the filing of the objections, if any, to the Petition; (4) posting of a Notice of Petition for Election by the employer within two days of the Region’s service of the Petition; (5) limitation of pre-election litigation to determining only issues necessary to determine if an election should be held; (6) limiting review of regional representation-case rulings through a single post-election request; and (7) no automatic stay of elections.

Our client had acquired the assets of the prior employer through an asset purchase in April 2014. The prior employer’s collective bargaining agreement (“CBA”) expired and our client did not agree to recognize the Union as the bargaining representative until a settlement agreement was reached on September 4, 2014. Negotiations for a CBA commenced shortly thereafter. The hearing on the Petition would focus on the factors set forth in Lee Lumber and Building Material Corp., 334 NLRB 399 (2001), namely whether there had been sufficient opportunity for the Union to negotiate a CBA during the nine to ten months that had passed. Our firm, of course, planned to contend at the hearing that, not only had there been sufficient time to negotiate in good faith, but also the newly-enacted Final Rule’s amendments favoring expeditious resolution of representation should control and the election should go forward immediately. After all, how much delay of negotiations could occur due to an election when there were only nineteen employees and two overlapping shifts? Shouldn’t the employees have the right to decide on representation when negotiations had been ongoing for over nine months already and the Board had already rejected two of three petitions from the former union steward?

While our firm was impressed with the speed in which the Region conducted the hearing—the hearing took place on July 15, 2015 even though we received notice on July 1, 2015—we were not surprised that the outcome reflected a decision decidedly favoring the Union by reasons fact findings that easily could have gone either way. Under Lee Lumber, the factors to be considered in determining whether the initial 6-month insulated period should be extended are: (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse. Of the five factors, the Region actually admitted that it had to find against the Union on complexity and could not resolve the most important issue of “the amount progress made” under the third factor. Thus, the Region held in favor of continuing negotiation based on the following: (i) ‘initial contract;” (ii) “amount of time;” and (iii) “impasse not reached.” Ironically, the “initial contract” ruling was contradicted by the Region’s own finding that the parties used the prior contract as a “template.” Likewise, the “amount of time” ruling ignored that nine months had passed since negotiations began. Of course, “impasse” would have been irrelevant if a contract had been reached in the more than nine months preceding the hearing. Even more alarming were two dicta in the decision: (i) a reference to an Unfair Labor Practice charge filed on July 29, 2015 by the Union alleging that the Petitioner, a long-time former union steward, purportedly is a “supervisor;” (ii) the contention in a footnote that the general rule that decertification elections cannot be delayed more than one year does not apply to “situations [such as this] involving negotiations pursuant to settlement agreement.” Thus, this matter will return to negotiation despite all the clear indications that a majority of the employees would prefer to represent themselves.

Battistoni Italian Specialty Meats, LLC, Helene West and United Food and Commercial Workers International Union, Case No. 03-RD-1255217, Decision dated July 31. 2015.

Linda Joseph is a partner in the firm of Schröder, Joseph & Associates, LLP, which has extensive experience in traditional labor law matters. Her practice focuses upon management-side labor and employment law, intellectual property and complex commercial litigation.