NLRB Returns to Former Precedent Regarding Decertification Petitions

Volume 6, Issue 4
March 26, 2007

In its recent decision of TruServ Corp., 349 N.L.R.B. No. 23 (Jan. 31, 2007), the National Labor Relations Board ("NLRB") returned to its prior position regarding whether decertification petitions filed before the settlement of unfair labor practice charges should be processed or dismissed. A decertification petition is filed by employees seeking to remove a union as their exclusive bargaining representative. Once a petition is filed, an election is held to determine whether a majority of employees wish to remove the union. NLRB procedure requires, however, that when unfair labor practice charges are pending against an employer, any petition for decertification must be held in abeyance pending the resolution of the charges.

In TruServ, the NLRB addressed a typical factual scenario: 1) employer is alleged to have committed unlawful conduct, which is the subject of an unfair labor practice charge; 2) a decertification petition is filed, which is held in abeyance; 3) the unfair labor practice charge is settled, which settlement does not include an admission of unlawful conduct on the part of the employer. The issue in such a scenario becomes whether to dismiss the decertification petition or resume its processing.

The NLRB had determined through a series of cases that began with Passavant Health Center, 278 N.L.R.B. 483 (1986), that where the charge is withdrawn and the terms of the settlement agreement have been satisfied, the decertification petition should be reinstated and processed. The NLRB reversed this position, however, ten years later in Douglas-Randall, Inc., 320 N.L.R.B. 431 (1995). There, the NLRB held that the settlement of an unfair labor practice charge bars the processing of a decertification petition.

In TruServ, the Board recognized its failed reasoning in Douglas-Randall and returned to its holding in Passavant. The NLRB concluded that where there is no finding of unlawful conduct on the part of the employer, there is no basis to dismiss the decertification petition. As such, after an unfair labor practice charge has been settled, the certification petition can be processed and an election can be held after the completion of the remedial period associated with the settlement of the charge. A decertification petition may not be processed, however, if: (1) the settlement is executed before the petition is filed; (2) the Regional Director finds that the petition was instigated or solicited by the employer; or (3) the settlement includes an agreement by the petitioner to withdraw the decertification petition.

This ruling allows employers to enter into settlement agreements to resolve unfair labor practices, which contain nonadmission clauses, without concern over the settlement's effect on the processing of decertification petitions filed before the settlement. It is a good result which protects the highly coveted decertification petition. Employers must remember, however, that any involvement by the employer in the filing of the decertification petition will taint the proceeding and result in a dismissal of the petition.

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