NLRB General Counsel Makes it Easier to Attack Neutrality Agreements

In practice, though, some agreements require the employer’s active support. Not only that, but the NLRB’s standard for evaluating such agreements has also been amorphous and its decisions inconsistent.

On September 4, 2020, NLRB General Counsel Peter Robb issued a Guidance Memorandum adopting a uniform test for assessing neutrality agreements and making it easier to invalidate them. GC 20-13, Guidance Memorandum on Employer Assistance in Union Organizing (September 4, 2020).

According to Mr. Robb, in the past year, the NLRB Regions have sought advice on a series of issues relating to the amount of lawful support an employer can provide a union that is attempting to organize its employees. Some of these situations have involved self-described “neutrality agreements” between employers and unions that have not yet been selected as the exclusive collective-bargaining representative of the employer’s employees.

Section 7 of the Act protects the right of employees to choose to “form, join, or assist a labor organization … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” An employer violates Section 8(a)(2) and (1) by providing impermissible support to a union in organizing the employer’s unrepresented workforce, and a union’s acceptance of such support violates Section 8(b)(1)(A). Likewise, an employer violates Section 8(a)(1) when it provides impermissible support to employees who wish to decertify or withdraw from a union.

The Board has held that such employer support for a union organizing drive or a decertification campaign impacts the Section 7 rights of employees. The rationale for both violations is the same—that employees have been deprived of “that freedom of choice which is the essence of collective bargaining.” Nevertheless, the Board has applied two different legal standards to these two similarly coercive activities, creating different and incongruous outcomes.

In the former situation—employer support for a union’s organizing efforts—the Board uses “a totality of the circumstances” standard. In the latter situation—employer support of a decertification petition—the Board uses “the more than ministerial aid” standard. Mr. Robb reasoned that the “totality of the circumstances” standard is “difficult to apply because it is more amorphous, and, lacking clear guidelines as to what is lawful and unlawful conduct, yields inconsistent results.” Conversely, he claimed that the “more than ministerial aid” standard is stricter and less ambiguous and provides a brighter line with respect to lawful and unlawful conduct.

Mr. Robb reported that his office has seen allegations of impermissible employer support of union organizing activities emerge in the context of pre-recognition neutrality agreements. Although truly neutral pre-recognition “neutrality agreements” are lawful, Mr. Robb stated that “we have increasingly seen in neutrality agreements provisions that go beyond neutrality into the area of impermissible support.” These types of neutrality agreements “often contain provisions that sacrifice the statutory rights of employees for the commercial interests of unions and employers. Because the standards for review of these agreements have been unclear, extant Board law has effectively permitted interference with employee free choice by not carefully examining the provisions of neutrality agreements to determine whether they are, in fact, neutral or provide support to the union.” According to Mr. Robb, these provisions “should be examined under the lens of whether they provide ‘more than ministerial support’ to the union’s efforts to organize.”

Mr. Robb reasoned that to achieve these goals, “the Board should apply the same standard in assessing the lawfulness of employer support for union organizing drives as it does to such support for employee decertification efforts.”

Further, with respect to pre-recognition agreements, Mr. Robb said that “the Board should adopt a simple bright-line test that would find a violation of the Act whenever an employer and union enter into a pre-recognition agreement where: (1) the parties negotiate terms and conditions of employment prior to the union attaining majority status; (2) the parties agree to restrain employee access to Board processes and procedures; or (3) 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.”

Current Pre-Recognition Union Organizing and Neutrality Agreement Law

Currently, when determining whether an employer has rendered unlawful 8(a)(2) assistance to a union, the Board considers the totality of the circumstances, including pre-recognition and post-recognition conduct. Because of this doctrine, “[t]he quantum of employer cooperation which surpasses the line and becomes unlawful support is not susceptible to precise measurement.” This has led to confusion as to where the line exists and to inconsistent results.

The More than Ministerial Aid Standard in De-Certification Campaigns.

The Board applies the stricter and less ambiguous “more than ministerial aid” standard to determine whether an employer’s assistance to employees seeking to decertify or withdraw from a union constitutes an unfair labor practice. It has repeatedly held that a decertification petition is tainted if an employer provides “more than ministerial aid” in the initiation or collection of signatures in support thereof. The inquiry in deciding whether an employer has provided “more than ministerial aid” is whether “the preparation, circulation, and signing of the petition constituted the free and uncoerced act of the employees concerned.”

Application of the More than Ministerial Aid Standard to Pre-Recognition Union Organizing.

Mr. Robb reasoned that “the prohibited employer conduct at issue in the pre-recognition and de-certification contexts—unlawful assistance rather than neutrality—has, in both cases, the same impact on Section 7 rights of employee free choice.” There is no reason to treat the same or similar conduct, having the same or similar effect, differently in the pre-recognition and the de-certification contexts.

According to Mr. Robb, this standard should also be applied when analyzing certain provisions of neutrality agreements. “Neutrality agreements that are truly ‘neutral’ and do not interfere with employee rights—for instance, where an employer agrees to remain neutral during an organizing campaign in exchange for the union refraining from a corporate campaign—will remain lawful under the ‘more than ministerial aid’ standard.”

However, Mr. Robb opined that “some neutrality agreements may contain provisions, such as those described below, that permit or require conduct that under the ‘more than ministerial aid’ analysis is prohibited under the Act”:

A. Allowing non-employee union organizers access to employer facilities or informing employees of the presence of union organizers

According to Mr. Robb, “an employer committing in a neutrality agreement to provide a union with use of its private facilities before and after work, as well as during the employees’ meals and break times, to solicit employees to sign union authorization cards would typically rise to the level of more than ministerial aid.”

B. Allowing union solicitation during working time

Likewise, “permitting union solicitation during working time pursuant to a neutrality agreement is analogous to an employer providing employees with time off from work to collect signatures in the workplace—conduct found to exceed ministerial aid in the decertification context.”

C. Providing a union with employee contact information

Mr. Robb also found that “an employer’s provision of a list of employees’ names to a union during an organizing campaign, including personal identifying information, rises to the level of more than ministerial aid because the purpose of providing this information is to encourage the employee to engage, or refrain from engaging, in Section 7 activity, making it unlawful under Section 8(a)(1) of the Act.”

D. Certain statements of preference for a specific union

Often, neutrality agreements require the employer to post a notice or letter announcing the neutrality agreement itself. Mr. Robb admonished that “the content of this notice or letter must be closely scrutinized to determine whether it is lawful.” For example, “such a notice or letter in which the employer advises employees that union organizers will be on-premises to speak to employees and/or distribute authorization cards, or which contains certain language suggesting the employer’s preference for the union, would cross the line into unlawful support, as the conduct is akin to cases where the Board found it unlawful for an employer to direct employees to speak with other employees distributing a decertification petition.”

Negotiation of Terms and Conditions of Employment Before the Union Attains Majority Status.

Mr. Robb went on to opine that “neutrality agreements in which substantive terms and conditions of employment have been negotiated are unlawful… . Agreements that are vehicles for prematurely granting a union exclusive bargaining status affect employee rights under the Act and constitute unlawful support.” (Notably, Mr. Robb’s admonition does not apply to construction industry pre-hire agreements, which the Act permits.)

Pre-Recognition Agreement Provisions

A. Wage provisions

While a pre-recognition agreement that sets post-recognition wages is the most obvious example of prematurely setting terms and conditions of employment, pre-recognition agreements that otherwise deal with wages are also unlawful. For example, a pre-recognition agreement containing a comparable-wages provision that requires the parties to “consider” or “bear in mind” the wage rates of unionized competitors or the employer’s other facilities is also unlawfully coercive, since it fixes a range of acceptable proposals even when it does not establish precise wage rates.

B. Interest arbitration provisions

Mr. Robb reasoned that while interest arbitration is not a term and condition of employment itself, “when parties make a pre-recognition agreement to submit collective-bargaining disputes to interest arbitration, they have placed the decision as to what terms and conditions will ultimately be in the parties’ collective-bargaining agreement into the hands of a third-party arbitrator, which would constitute “dealing with.” Accordingly, “where an interest arbitration provision is negotiated before the union has attained majority status, it provides a ‘deceptive cloak of authority’ to the union and is unlawful.”

C. No-Strike/No-Lockout provisions

The Board has long held that an agreement that waives employees’ right to strike is a term and condition of employment. Thus, according to Mr. Robb, “any agreement that waives employees’ right to strike prior to the union gaining majority support is unlawful, even if the agreement expires upon recognition.” On the other hand, according to Mr. Robb, “where a union has not achieved lawful recognition, it may agree that the union will not itself call or cause a strike as part of a neutrality agreement.”

D. Access to Company Facilities provisions

Provisions in an agreement providing union organizers with access to employer facilities is “more than ministerial aid” as outlined above. The Board has also held that union access to an employer’s property is a mandatory subject of bargaining. Accordingly, any pre-recognition agreement that provides union organizers such access is also premature and unlawful.

E. Determination of Appropriate Unit Provisions

Mr. Robb went on to say that “although it is well settled that the scope of a bargaining unit is a permissive subject of bargaining, premature agreement on unit scope between the parties ousts the Board of its authority to determine the unit while at the same time giving the union ‘a deceptive cloak of authority with which to persuasively elicit additional employee support,’ thereby interfering with employee free choice.” Accordingly, “such a provision agreed upon before a union has achieved majority status is premature and unlawful.”

Agreements in Restraint of Employee Access to the Board or Otherwise Inconsistent with the Policies and Purposes of the Act.

Finally, Mr. Robb claimed that “pre-recognition or neutrality agreements between a union and employer that mandate opposition to employees seeking to vindicate their rights before the Board are also unlawful.” For instance, “a provision that requires both parties to request the Board dismiss any effort by a third party to petition for an election restrains employees’ access to the Board.”

Mr. Robb observed that “the Board and courts have recognized that NLRB-supervised elections provide a more reliable basis for determining whether employees desire representation. Requiring the parties to seek dismissal of a representation petition constitutes unlawful restraint by creating a mandatory opposition to employees’ exercise of their rights to seek a Board election, irrespective of the merits of such petition, and is inconsistent with the Board’s compelling interest in protecting employee freedom of choice.” Mr. Robb concluded by directing the NLRB’s Regions to follow the guidance provided in his memo when investigating charges involving pre-recognitional agreements.

Takeaway

Mr. Robb’s Memorandum profoundly changes the way that the Board has historically evaluated neutrality agreements, and is likely to lead to more successful legal challenges of such agreements before the Board.