By: Samuel Sverdlov, Esq.  & Howard Wexler, Esq.

Seyfarth Synopsis: In Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the NLRB abandoned its long-established precedent from Wells Fargo Corp., 270 NLRB 787 (1984), and held that employers may not refuse to bargain with a “mixed-guard” union whom the employer has voluntarily recognized.

These days, employers are having a harder time relying on well-established law from the NLRB. On June 9, 2016, the Board issued its decision in Loomis Armored US, Inc., abandoning the standard it adopted more than 30 years ago in Wells Fargo Corp., regarding the withdrawal of recognition of “mixed-guard” units.

Loomis Armored US, Inc. (“Loomis”) had voluntary bargaining relationships with 10 “mixed-guard” units, at least one of which dated back 47 years. In 2010, Loomis refused to bargain with the union and withdrew recognition from six of these mixed-guard units. Despite the clear precedent in Wells Fargo, the NLRB took the position that “once an employer has voluntarily recognized a mixed-guard union for a unit of guards, the employer’s bargaining obligation should continue until the union is shown to have lost the majority support in the unit.” Id. slip op. at 1-2.

The Board found that the employer had an obligation to bargain with the union. The Board noted that “Wells Fargo has been the object of continued criticism, including from the federal appellate courts.” Id. slip op. at 1.  The Board found that while the statutory language of Section 9(b)(3) of the National Labor Relations Act (“NLRA”) prohibits the Board from certifying a mixed-guard unit, the language neither limits an employer’s right to voluntarily recognize such a unit (and in-fact, the Board has repeatedly endorsed this employer-right), nor considers when an employer can withdraw recognition of a voluntarily recognized mixed-guard unit. The Board concluded that it would not be contrary to the NLRA for the Board to apply “otherwise universal rules of collective bargaining to a collective-bargaining relationship voluntarily entered into by the employer itself.” Id. slip op. at 5.  Accordingly, employers who voluntarily recognize mixed-guard units “remain[] bound by the collective-bargaining relationship into which it voluntarily entered unless and until the union is shown to have actually lost majority support among unit employees.”

The Board’s holding will not be applied retroactively.

Implications for Employers

The implications of Loomis for employers who have “mixed-guard” units cannot be understated.  Although employers have voluntarily recognized mixed-guard units based in part on the understanding that they can freely withdraw recognition at the end of the bargaining relationship, under Loomis, employers will no longer be able to withdraw recognition absent a showing that the union lost the majority support of the unit.  Thus, moving forward, employers considering a voluntary recognition of a mixed guard unit should be aware that ordinary rules of collective-bargaining will apply to them if they choose to withdraw recognition down the road.