By Kenneth R. Dolin

The U.S. Circuit Court of Appeals for the District of Columbia recently enforced a Board order finding that an employer may not withdraw recognition based on anti-union employee petitions that it unlawfully assisted, even absent specific proof of the misconduct’s effect on employee choice.  SFO Good-Nite Inn, LLC v. NLRB, 700 F.3d 1 (D.C. Cir. Nov. 20, 2012), enf’g 357 NLRB No. 16 (2011).

An incumbent union enjoys a continuing presumption of majority status, which is irrebuttable during a union’s first year following certification or for the first three years of a collective bargaining agreement.  When the presumption is rebuttable, an employer may withdraw recognition from an incumbent union upon receiving proof that an actual majority of its represented employees no longer desires union representation.  This privilege, however, is not absolute.  Rather, an employer may only withdraw recognition if the expression of employee desire to decertify represents the free and uncoerced act of the employees concerned.

In SFO Good-Nite, the employer unlawfully attempted to coerce three of its employees to sign employee decertification petitions and threatened another employee with discipline for opposing decertification.  Within a few weeks after committing these violations, the employer withdrew recognition based on petitions signed by 14 of the 24 unit employees.  The Board held that the employer was precluded from withdrawing recognition based on the “tainted” petitions, even absent specific proof of the misconduct’s effect on employee choice.  The Board reasoned that the employer’s violations tainted the resulting employee petitions and rendered the petitions an unreliable indicator of employee choice.

The Board stated that Hearst Corp., 281 NLRB 764 (1986) applies when an employer has engaged in unfair labor practices directly relating to an employee decertification effort, such as actively soliciting, encouraging, promoting, or providing assistance in the initiation, signing or filing of an employee petition seeking to decertify the bargaining representative.  Applying the Hearst standard, the Board stated in SFO Good-Nite that in those situations it irrebuttably presumes that the employer’s unlawful meddling tainted any resulting expression of employee disaffection, without specific proof of circumstances, and precludes the employer from relying on that expressed disaffection to overcome the union’s continued presumption of majority support.

By contrast, the Board in SFO Good-Nite found that the Master Slack Corp., 271 NLRB 78 (1974) four-part causation analysis to determine whether there is “a causal link” between decertification effects and unfair labor practices did not apply in this context because the test only applies to other unfair labor practices that are distinct from any unlawful assistance by the employer in the actual decertification petition.

The employer in SFO Good-Nite argued that its withdrawal of recognition was lawful because none of the three affected employees ultimately succumbed to its coercion and there was no evidence that any of the 14 employees who signed the petitions knew about the employer’s coercive acts.  However, the Board found that Hearst foreclosed any such employer defense.  It therefore rejected considering whether a majority of the petition signers were aware of the unfair labor practices, reasoning that an employer must be held responsible for the foreseeable consequence of its misconduct and that the predictable result of an employer’s unlawful, direct participation in an employee decertification effort is a petition plagued with uncertainty because of the very nature of the employer’s unfair labor practices.

Member Hayes dissented in part.  While agreeing that the employer’s unlawful involvement with the employee’s petition tainted its reliability as an indicator of disaffection with the union, he stated that the Hearst presumption of taint should be rebuttable rather than irrebuttable, thereby raising the possibility in future cases that the representational desires of a majority of employees unaffected by, or possibly even unaware of, unlawful employer involvement could be honored.

The D.C. Circuit rejected arguments made by the employer that the Board disregarded its own precedent by failing to apply the Master Slack test.  The court observed that the employer’s extensive involvement in circulating the anti-union petitions showed they were tainted under the Hearst test, and the Board’s articulated distinction between Master Slack and Hearst was rational and consistent with the Act.

Regardless of whether the Board had previously explained the distinction between Hearst and Master Slack, the D.C. Circuit has now affirmed the Board’s clear line for applying the Hearst irrebuttable presumption where the employer is directly involved in unlawfully instigating or propelling a decertification campaign.  The Master Slack test applies only when the employer committed unfair labor practices unrelated to the petition that may have contributed to the eroding of union support.

Thus, in light of SFO Good-Nite, employers must more strictly scrutinize their activities to ensure that they do not actively solicit, promote, assist, support or otherwise unlawfully encourage decertification.  Employers who are vulnerable in this area would be well advised not to withdraw recognition but instead inform employees of their right to file their petition at the Board (with only a 30% showing of employee support required) as well as consider quickly remedying any unlawful acts.