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NLRB Drops 30-Year Precedent on Employers’ Right to Unilaterally Oust Unions Representing ‘Mixed-Guard’ Units

A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards.

Adopting a new rule proposed by the NLRB General Counsel and the six Teamsters-affiliated unions which represented Loomis employees at various California locations, the Board holds that an employer of security guards, like other employers, remains bound by a collective-bargaining relationship into which it voluntarily entered unless and until the union is shown to have actually lost majority support among unit employees. Loomis Armored US, Inc., 364 NLRB No. 23 (June 9, 2016). 

Section 9(b)(3) of the National Labor Relations Act prohibits the NLRB from “certifying” any union which represents both guards and non-guards as the bargaining representative of a unit of security guards, but does not prohibit an employer from voluntarily recognizing such a union. Historically, the NLRB has held if an employer did so, it could still withdraw recognition from such a “mixed-guard union” if no bargaining agreement is in place, even if the union had not lost majority support among employees.

The Board articulated three reasons for its decision. First, although Section 9(b)(3) prohibits such mixed-guard unions from being certified by the Board, it does not expressly address the situation where an employer voluntarily recognizes a mixed-guard union for a unit of guards, but then seeks to withdraw such recognition.  Second, the Supreme Court has observed that exemptions from NLRB coverage should be narrowly construed so as not to deny the protections of the NLRA to workers.  Third, the new rule will promote the statutory purpose of fostering stable labor-management bargaining relationships.

The new standard will not be applied retroactively. For the foreseeable future, the rights of any employer which is a party to a mixed-guard bargaining relationship are as set forth in Loomis.  As with any other unit of employees, once an employer voluntarily recognizes a mixed-guard union as the representative of its security guards, the employer must continue to recognize and bargain with the union unless and until it can be shown that the union has actually lost majority support among unit employees.  Absent that showing, the Board will hold that an employer’s unilateral withdrawal of recognition from the union will violate the employer’s duty to bargain under the NLRA.

Jackson Lewis P.C. © 2022National Law Review, Volume VI, Number 176
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Thomas M. Lucas, Jackson Lewis, complex labor litigation lawyer, disability management attorney
Office Managing Principal

Thomas M. Lucas is Office Managing Principal of the Norfolk, Virginia, office of Jackson Lewis P.C.

Mr. Lucas represents management exclusively in the full range of employment and labor law matters, including employment discrimination litigation and traditional labor law. He has represented corporate clients, including clients in the maritime, ship repair, manufacturing, healthcare and service industries, throughout the Mid-Atlantic Region and nationally for more than 30 years. Prior to entering private practice, Mr. Lucas...

757-648-1424
Ramsay C. McCullough, Jackson Lewis, Affirmative Action Counseling Lawyer, Employment Discrimination Attorney
Associate

Ramsay C. McCullough is an Associate in the Norfolk, Virginia, office of Jackson Lewis P.C. His labor and employment counseling and litigation practice includes wage and hour laws, employment discrimination laws, the National Labor Relations Act, affirmative action and OFCCP counseling, white collar defense, False Claims Act and Qui Tam/Whistleblower defense, internal investigations, corporate governance and compliance issues, regulatory training, and asset recovery.

Mr. McCullough is an experienced trial attorney. He...

757-648-1444
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

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...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

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-...

212-545-4000
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