If at first you don’t succeed, try, try (and since you failed on your third try, you’ll have to) try again.
Here, a majority of employees filed a decertification petition in 2009. That petition failed. The employees tried again in 2011. That petition failed, too, because the Company unlawfully assisted the decertification.
On the third attempt, the Company mounted an anti-union campaign where threatened employees’ jobs and threaten closure if the workers did not decertify the union. The Company also installed cameras to conduct surveillance of employees’ union activities and encouraged them to report on such activities by co-workers. The Company also banned union representatives from the premises despite a collective bargaining agreement that permitted such visits. Needless to say, the NLRB found these efforts to be done with anti-union animus. Anti-union animus precludes decertification.
Without a doubt, the Region and the Board would find these acts were done with anti-union animus. But we have appeal rights. On appeal, the majority of the 8th Circuit also found anti-union animus with one judge dissenting. The dissenting judge said that the board and court misinterpreted or mischaracterized the company’s actions as unlawful threats and promises of benefits if employees decertified their union.
For example, executives’ statements that “we can’t survive” or “we can’t meet or beat the competition” were not threats because they were not predictions of a precise effect. Rather, the statements were opinions as to the potential economic repercussions that might accompany union retention.
Perhaps the newly constituted NLRB will agree with the dissenting judging in the coming years. Until then, the Company should seek and then follow its counsel’s advice on how to carry that decertification football across the goal line.
*I did not represent the Company but know labor lawyers in the firm that did represent it are competent at the laws of decertification and anti-union animus.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.