NLRB’s General Counsel Challenges Legality of Neutrality Agreements

The National Labor Relations Board’s General Counsel recently signaled a major policy change concerning the legality of neutrality agreements.

A “neutrality agreement” is a contract in which an employer provides concessions and accommodations to a union seeking to organize its employees, often enabling the union to gain recognition as the employees’ bargaining representative without having to win a secret ballot election. Such agreements typically include the employer’s promise to remain neutral, the provision of employee names and contact information to the union, allowing the union onsite access to employees, and voluntary recognition of the union after an authorization card check process.

In reviewing an appeal filed by the National Right to Work Legal Defense Foundation on behalf of a disenfranchised employee whose employer, Embassy Suites, and UNITE HERE Local 8 entered into a “neutrality agreement” that resulted in voluntary recognition of the union, the General Counsel agreed portions of the neutrality agreement violated the National Labor Relations Act because the employer provided the union with far more than “ministerial aid” (i.e., minimal support or approval). The ministerial aid standard is currently applied only to challenges to employer assistance toward employee efforts to decertify an incumbent union. Absent settlement, the case will now result in a complaint against the employer and the union and a hearing.

The General Counsel appears prepared to take the position that many, if not all, neutrality agreements constitute unlawful assistance and interference with employees’ NLRA rights and will seek to have the Board consider adopting new, stricter standards. If successful, the change would be a significant reversal of current law.

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