NLRB Reminds Employers that Providing More than Ministerial Aid Can Taint a Decertification Petition
In Narricot Industries, LP, 363 N.L.R.B. No. 82 (2009), the National Labor Relations Board (NLRB) reminded employers of the limited amount of "ministerial aid" they can permissibly provide to employees seeking to decertify their union representative. The NLRB held that Narricot Industries LP violated Section 8(a)(5) of the National Labor Relations Act by withdrawing recognition from Local 2316 of the Carpenters and Joiners of America because Narricot had based its repudiation of the union on a decertification petition that was prepared and distributed with the assistance of Narricot management.
Narricot and the union had signed a collective bargaining agreement that was to expire on October 2, 2007. In the months leading up to October 2007, the parties unsuccessfully attempted to reach a new agreement. In late September 2007, Narricot informed the union that it was withdrawing recognition because a majority of the bargaining unit employees had signed a petition stating that they no longer wished to be represented by the union.
The NLRB held that Narricot unlawfully withdrew recognition because the petition on which it had relied was tainted, in that Narricot's supervisors had gone too far in helping the employees with the petition. First, in response to a question from an employee who wanted to know how to decertify the union, human resources managers prepared the petition, gave it to the employees for circulation and informed the employee that at least 220 signatures would be needed to remove the union. Second, the supervisors also gave copies of a list of bargaining unit employees and the petition to another employee, as well as spoke with her daily regarding the need for her to obtain more signatures. Third, a supervisor told an employee that the employees would receive a pay raise if they decertified the union and invited the employee to sign a copy of the petition located in his office.
The NLRB found that Narricot's supervisors "provided more than the permissible 'ministerial aid' in the initiation and circulation of the decertification petition." While not passing upon whether an employer's "mere provision" of an employee list was unlawful, the NLRB reasoned that the totality of Narricot's actions was sufficient to taint the petition, which in turn, tainted the withdrawal of recognition. Additionally, the NLRB affirmatively ordered Narricot to recognize and bargain with the union to remedy these violations, notwithstanding the employees' apparent desire to be unrepresented. The NLRB reasoned such an order was necessary to fully remedy the violation.
This decision highlights the general rule that any decertification petition must be an employee-driven effort and confirms that the employer's role must be confined to providing truly "ministerial aid," such as directing the employees to the local NLRB office or giving basic information regarding what an employee petition must contain. The decision also highlights the risks of mishandling employees' expressions of interest in decertifying the union — a bargaining order.
Narricot and the union had signed a collective bargaining agreement that was to expire on October 2, 2007. In the months leading up to October 2007, the parties unsuccessfully attempted to reach a new agreement. In late September 2007, Narricot informed the union that it was withdrawing recognition because a majority of the bargaining unit employees had signed a petition stating that they no longer wished to be represented by the union.
The NLRB held that Narricot unlawfully withdrew recognition because the petition on which it had relied was tainted, in that Narricot's supervisors had gone too far in helping the employees with the petition. First, in response to a question from an employee who wanted to know how to decertify the union, human resources managers prepared the petition, gave it to the employees for circulation and informed the employee that at least 220 signatures would be needed to remove the union. Second, the supervisors also gave copies of a list of bargaining unit employees and the petition to another employee, as well as spoke with her daily regarding the need for her to obtain more signatures. Third, a supervisor told an employee that the employees would receive a pay raise if they decertified the union and invited the employee to sign a copy of the petition located in his office.
The NLRB found that Narricot's supervisors "provided more than the permissible 'ministerial aid' in the initiation and circulation of the decertification petition." While not passing upon whether an employer's "mere provision" of an employee list was unlawful, the NLRB reasoned that the totality of Narricot's actions was sufficient to taint the petition, which in turn, tainted the withdrawal of recognition. Additionally, the NLRB affirmatively ordered Narricot to recognize and bargain with the union to remedy these violations, notwithstanding the employees' apparent desire to be unrepresented. The NLRB reasoned such an order was necessary to fully remedy the violation.
This decision highlights the general rule that any decertification petition must be an employee-driven effort and confirms that the employer's role must be confined to providing truly "ministerial aid," such as directing the employees to the local NLRB office or giving basic information regarding what an employee petition must contain. The decision also highlights the risks of mishandling employees' expressions of interest in decertifying the union — a bargaining order.
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