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NLRB Allows Decertification Process to Proceed During Certification Year Extension Period

The National Labor Relations Board (NLRB) has ruled an employee’s effort to decertify his union could proceed, despite a previous agreement between the employer and union extending the time during which decertification petitions are barred. Pinnacle Foods, 368 NLRB No. 97 (Oct. 21, 2019).  

An employee filed a petition to decertify his union after the expiration of the “certification year,” the period during which the parties cannot challenge a union’s majority status. However, as part of a settlement of pending unfair labor practice charges, the employer and union had agreed (without the employee-petitioner’s consent) to extend the certification year by seven months. An NLRB regional office dismissed the decertification petition because it was filed during the seven-month extension period.

Reversing the dismissal, the NLRB allowed the decertification process to continue. Citing TruServ Corp., 349 NLRB 227 (2007), the Board held that where there is no finding of a violation of the National Labor Relations Act or an admission by the employer of a violation, there is no basis for dismissing a petition “based on the settlement of alleged but unproven unfair labor practices.” Here, the settlement agreement contained a non-admission clause and, as a result, there was no “basis for finding that the alleged unfair labor practices tainted the petition.”

The NLRB also held that “the processing of the petition … may not properly be held in abeyance simply because the Employer and the Union have agreed to an extension of the certification year …. [A] decertification petitioner cannot ‘be bound to a settlement by others that has the effect of waiving the petitioner’s right under the Act to have the decertification petition processed.’”

Jackson Lewis P.C. © 2020


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.