October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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NLRB GC Memo Clarifies the Standard to Evaluate Employer Assistance in Union Organizing

Earlier this month, the NLRB General Counsel released a guidance memo urging the Board to apply the “more than ministerial aid” standard when evaluating whether an employer’s assistance in union organizing violates the National Labor Relations Act.

An employer violates Section 8(a) of the NLRA when it provides impermissible support to a union attempting to organize unrepresented employees, and Section 8(b) when it provides impermissible support to employees seeking to decertify or withdraw from a union.  Under current Board precedent, what constitutes “impermissible behavior” under Section 8(a) and 8(b) is governed by two different standards.  When an employer is accused of impermissibly supporting a union’s organizing efforts there’s a “totality of the circumstances” standard.  And, when an employer is accused of impermissibly supporting a decertification petition there’s a “more than ministerial aid” standard.  The application of these different standards to similar employer behavior yielded inconsistent conclusions for what is “impermissible” employer involvement in union organizing. Therefore, the General Counsel now urges the Board to adopt the “more than ministerial aid” standard for both situations.

This singular standard will provide consistency among Board decisions and better define what employer behavior violates the NLRA.  The General Counsel contends that the uniform standard is necessary because the conduct at issue in both pre-recognition and decertification contexts is an employer’s unlawful assistance in some union organizing process.  Because this conduct has the same impact on employees’ Section 7 rights to free choice, the General counsel posits that it should be evaluated by the same “more than ministerial aid” standard.

The memo further suggests that the Board should adopt a bright-line test to determine when a pre-recognition agreement violates Section 8(a) of the NLRA.  The proposed test would find a violation when an employer and a union enter into a pre-recognition agreement where:

  • The parties negotiate terms and conditions of employment prior to the union attaining majority status;

  • The parties agree to restrain employee access to Board processes and procedures; or

  • The parties agree to any provision that is inconsistent with the purposes and policies of the Act, such as by impacting Section 7 rights by providing support of the union’s organizing activities, rather than neutrality.

Finally, the General Counsel’s memo illustrates how the “more than ministerial aid” standard should be applied to specific provisions in pre-recognition and neutrality agreements.  It explicitly notes that agreements with wage, interest arbitration, and no strike/no lockout provisions are unlawful.

The streamlined approach to evaluating employer involvement in organizing activity, with one standard, and a bright-line test, should clarify what employer conduct is and isn’t permissible both pre-recognition and during decertification.  Employers should consult the examples in the memo for more specific guidance and look out for 8(a) and 8(b) cases in the coming months that concern employer support of union activity to determine how the NLRB incorporates this General Counsel memo into its’ decisions.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 261
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About this Author

Alyson Brown Hunton Andrews Kurth Employment
Associate

Alyson’s practice focuses on representing and advising employers on all aspects of labor and employment law.

Alyson represents employers in administrative proceedings before federal and state agencies, counsels employers on compliance with federal and state labor and employment laws, and represents clients in employment litigation. She is a contributing author to the firm’s Employment & Labor Perspectives Blog.

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  • Represents employers in lawsuits and agency...
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Amber’s national practice assists clients with traditional labor relations and litigation, employment advice and counseling, and complex employment litigation.

Amber is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and is a trial lawyer who has extensive experience representing and advising clients in traditional labor relations, such as collective bargaining, representation elections, decertification elections, unfair labor practice charges, arbitrating grievances, contract administration and interpretation, and union avoidance strategies.  Amber also serves as the Hiring Partner for the firm’s Dallas office.

Amber also provides strategic day-to-day advice and counseling for clients. As a part of Amber’s partnership with clients to avoid litigation, she frequently conducts and coordinates sensitive corporate investigations, and provides training presentations for clients on a multitude of topics such as pay equity, anti-harassment and anti-discrimination, diversity and inclusion, labor relations, and issues related to the Family and Medical Leave Act and the Americans With Disabilities Act.

Amber’s litigation experience also includes regularly representing clients in wage and hour collective and class actions, trade secrets and post-employment restrictive covenant disputes, and complex employment discrimination.  Amber’s practice also focuses on defending employers before administrative agencies, such as the NLRB, EEOC, DOL, and OFCCP. Regarding the OFCCP, Amber’s work focuses on affirmative action work and audit defense, and advising and counseling clients on various diversity and inclusion policies and practices. Amber represents clients in all industries, and has particular experience working with clients in the energy and utilities, financial institutions, health care, food processing, staffing, manufacturers, transportation, and retail sectors.

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