November 30, 2022

Volume XII, Number 334

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November 28, 2022

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NLRB Finds Union Improperly Interfered with Decertification Election

A union “interfere(d) with employee free choice” during the run-up to an NLRB election to decertify the union by seeking the discharge of the decertification Petitioner for alleged non-payment of dues and fees to the union, the National Labor Relations Board has held in an unpublished opinion. Bio-Medical Applications of New Jersey, Inc., Case 22-RD-114233 (Apr. 29, 2015).

According to the NLRB, Local 1199J, AFSCME falsely claimed to the employer and other bargaining unit voters that the Petitioner had not paid initiation fees and dues under the union contract, and then failed to inform the voters of its mistake after it dropped its demand for the employee’s discharge. When the union narrowly won the decertification election (15-13), objections were filed to the union’s conduct.

The Board found the union had sent the decertification petitioner letters on successive days claiming he owed $666.30 in unpaid dues and initiation fees, and asserting that under the collective bargaining agreement he could be discharged if he failed to pay. The letters did not explain how the union calculated this amount, but it is undisputed that it was inaccurate. The union also posted one of these letters on the employer’s premises in the employee lunchroom.  The union sent a letter to the employer, as well, requesting that the decertification petitioner be discharged for this non-payment. Two weeks later, the union Vice President met with the bargaining unit employees/voters and told them of the union’s demand to the have the decertification petitioner terminated. However, after the employer challenged the union’s discharge request, the union withdrew its request. It did not inform prospective voters (other than the decertification petitioner) that it had dropped its demand.

Applying its nine-factor test from Cedars-Sinai Medical Center, 342 NLRB 596 (2004) to evaluate whether the union’s conduct during the critical pre-election period interfered with employees’ freedom of choice in the election, the Board held the union’s conduct was objectionable and interfered with employee freedom of choice. Although the union had the right to seek the decertification petitioner’s discharge under the CBA, its claim was inaccurate, and although the union withdrew its demand for his discharge, that fact was not communicated to other bargaining-unit employees.

The Board infrequently finds that a union engaged in unlawful conduct. However, in this case, “[g]iven the severity of this incident, the extent of dissemination, the closeness of the election, and the Union’s failure to effectively disseminate its withdrawal of the threat,” the Board set aside the first election and directed a rerun.

 

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 137
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About this Author

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
Robert J. Guidotti, Jackson Lewis, union grievances lawyer, representational campaigns attorney
Associate

Robert J. Guidotti is an Associate in the White Plains, New York, office of Jackson Lewis P.C. He counsels employers of varying sizes and industries in a wide range of labor and employment matters, including union grievances, representational campaigns, NLRB trials and other traditional labor matters.

Mr. Guidotti also assists and counsels organizations on items such as wage and hour audits, discrimination claims, employee handbook policies and other preventive strategies.

914-872-6878
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
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
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