A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.

In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.

Royal Laundry filed a petition for an election to determine which union it needed to recognize. In this type of election, the employees also could choose not to be represented by a union at all. The Regional Director, as affirmed by the Board, ultimately denied Royal Laundry’s petition on the grounds that Local 75 (now of Workers United) remained the employees’ certified bargaining representative. The decision reasoned that the same standard used to determine whether an employer must recognize a union in the event of a union affiliation or merger, should be applied. According to the decision, the choice to disaffiliate from a union is “merely the flip side of the affiliation coin.” In the case at hand, because Local 75 continued to operate much as it had before deciding to disaffiliate, it would remain the bargaining representative.

By using this rationale, the Board avoided any discussion as to whether a schism had occurred in the union, which would entitle employees to hold an election to determine which union would represent them. If the Board were to rule that a schism had occurred, it would likely face hundreds of such elections throughout the country, which would be tremendously disruptive to the Board and employers alike.

As a result of this week’s NLRB order, the Board presumably will uphold decisions by other Regional Directors, which have been fairly uniform and have come to the same conclusion with respect to UNITE HERE / Workers United employer petitions. Additionally, on June 18, the Board issued an operations-management (OM) memorandum to NLRB regional directors and officers on how to process unfair labor practice charges arising out the UNITE HERE, Workers United and SEIU dispute. In essence, this OM stated that decisions related to the UNITE HERE dispute must be cleared by the NLRB General Counsel’s office. On a related note, the above affirmation also may allow the field offices to begin processing the Unfair Labor Practice charges filed in connection with the UNITE HERE split.

In the longer term, employers may have recourse in the event the Board certifies a bargaining unit and orders an election. At least one employer will likely challenge the certification or “test cert” before a Federal Circuit Court of Appeals. Given the Board has avoided any discussion of schism, a federal court may be more willing to overrule the Board’s decision based upon prior Board law. Moreover, although the decisions by NLRB Regional Directors have been fairly consistent in deciding that disaffiliation is the flip side of affiliation, this argument is somewhat thinly supported by the law, and is ripe for challenge.
 

This article was written by H. Tor Christensen.