December 15, 2019

December 13, 2019

Subscribe to Latest Legal News and Analysis

December 12, 2019

Subscribe to Latest Legal News and Analysis

NLRB Outs 32-Year-Old Rule Allowing Employers to Oust Mixed-Guard Unions

For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long path of upsetting established precedent, on June 9, 2016, the National Labor Relations Board (“NLRB” or “Board”) reversed this and made clear that going forward a voluntary recognition of such a mixed-guard unit will require continued recognition just like any other bargaining unit. Loomis Armored US, Inc., 364 N.L.R.B. No. 23 (June 9, 2016).

A “mixed-guard union” is a labor organization that represents both security guards and other nonguard employees. Section 9(b)(3) of the National Labor Relations Act (“NLRA” or the “Act”) expressly prohibits the Board from certifying mixed-guard unions as the collective bargaining representative for security guards.  However, the Board has long held that an employer may voluntarily recognize a mixed-guard union as the representative of its employees.

In 1984, in Wells Fargo, the Board held that if an employer voluntarily recognizes a mixed-guard union, it may later withdraw recognition from the union for any reason as long as there was no contract in effect. Wells Fargo Corp., 270 N.L.R.B. 787 (1984).  The Board’s holding was based in part on the legislative intent behind Congress enacting Section 9(b)(3) of the Act, which was aimed “to shield employers of guards from the potential conflict of loyalties arising from the guard union’s representation of nonguard employees or its affiliation with other unions who represent nonguard employees.”

In Loomis, the Board completely overruled Wells Fargo. The Board held that once an employer voluntarily recognizes a mixed-guard union, it may only withdraw recognition if the union loses majority support among the employees. This rule applies to all other bargaining units, and the Board reasoned that the same rule should apply to guards as well – – placing an emphasis on the importance of preserving “stability in collective bargaining,” a tenet of the NLRA.

The Board dismissed the presence of any inconsistencies between its holding and the “conflict of loyalties” that concerned Congress when enacting Section 9(b)(3). The Board explained that employers recognizing mixed-guard unions will trade their ability to remove the union with whatever advantage recognizing the union brings the employer:  “An employer of guards thus may conclude that the potential conflict that concerned Congress either is not present or is outweighed by the potential advantages of entering into a collective-bargaining relationship with a mixed-guard union. And, in fact, a significant number of employers have availed themselves of this option.”  (Of course, those employers voluntarily recognized when they knew they could withdraw that recognition without challenge in the future.)

Importantly, though, the Board refused to apply its holding retroactively. Therefore, the Board’s rule from Wells Fargo will apply to all past and current cases, and the new Loomis holding will only apply to future cases.

Board Member Miscimarra dissented from the majority, arguing that the Board’s holding in Wells Fargo is more in line with the Congressional intent behind Section 9(b)(3) of the Act.  He stated  that “[i]f Congress deemed it objectionable to have guards represented by ‘certified’ mixed guard/nonguard unions, such an arrangement would appear equally objectionable when provided by a mixed guard/nonguard union that received voluntary recognition.” Thus, Member Miscimarra found that it would be most consistent with Congressional intent to never allow mixed-guard unions to represent guards.  Still, he acknowledged some countervailing reasons for permitting voluntary recognition of mixed-guard unions, such as the need for unions to expand their membership.  Ultimately though, Member Miscimarra held that the Board in Wells Fargo applied Section 9(b)(3) in the “most appropriate manner.”  He further concluded that after thirty-two years of the Wells Fargo rule, the Board lacked compelling reasons to reverse the rule.

This case is very important for companies that employ security guards. Employers that currently recognize a mixed-guard unit/union must understand their continuing obligation to recognize the union, even after contract expiration – – a change which may materially impact bargaining leverage in future negotiations.  Moreover, employers with non-union security guards should also be cognizant of the shift in the law, which may limit the likelihood of future voluntary recognitions. If a mixed-guard union seeks voluntary recognition, the employer should be aware that agreeing to that request will now bind the employer unless and until the union loses majority support.

© 2019 Proskauer Rose LLP.

TRENDING LEGAL ANALYSIS


About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm
Partner

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

212-969-3217
David Bayer, Proskauer, labor relations attorney, employment lawyer, NHL, NBA legal, sports counsel, collective action groups
Associate

David L. Bayer is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation & Arbitration Groups. He represents a diverse range of clients across many industries, including professional sports leagues and teams, real estate and construction companies, private universities, financial institutions, retail companies, media outlets, not-for-profits and hospitals, among others. David has represented clients in all aspects of labor-management relations, including collective bargaining, administration of collective bargaining agreements, arbitration, matters before the National Labor Relations Board and related litigation. He has also advised clients on the labor and employment aspects of corporate transactions.

In addition, David has represented and counseled clients on a wide range of employment matters, including those involving claims of employment discrimination, sexual harassment, retaliation, wage and hour violations and breach of restrictive covenants. He has also assisted clients in workplace investigations, updating workplace policies and handbooks, providing antidiscrimination and antiharassment training and general advice and counsel on compliance with federal, state and local employment laws.

Prior to joining Proskauer, David interned in the Labor Relations Department of Major League Baseball and was also a legal intern at the Brooklyn Nets and Barclays Center. While in law school, David interned for the Honorable Michael H. Dolinger, U.S. Magistrate Judge in the Southern District of New York.

212-969-3443