In our blog post last week titled, “NLRB Continues Its March To The Left” , we noted that in recent weeks, the NLRB, the agency charged with enforcing the National Labor Relations Act, has issued several controversial, union-friendly decisions, including rulings that assist unions to organize smaller sectors of an employer’s workforce and retain their exclusive representation rights for already organized workforces. We also noted that because the current NLRB is dominated by members appointed by President Obama, it comes as little surprise that the NLRB has issued these pro-union decisions. However, even in this era of a left-leaning NLRB, in a recent decision, the Board has reminded employees dissatisfied with their union representation they retain a potent, if not well known, means to express their dissatisfaction with an entrenched union: the “deauthorization petition.”
Employers with organized workforces are familiar with the “decertification petition,” a process by which employees can rescind a union’s legal authority to represent by filing a petition and participating in a secret ballot election. However, decertification petitions are subject both to the NLRB’s “contract bar” and “election bar” doctrines, which can prohibit them while a collective bargaining agreement is in effect (depending on the length of the agreement) and in the first year after a union wins a representation election. While a decertification petition can be a useful means for employees to voice their dissatisfaction over union representation, the opportunities to file it are often limited.
However, in Los Angeles Times Communications, LLC, the Board has reaffirmed the force of a deauthorization petition. In the case, the Board reiterated that any time a collective bargaining agreement contains a “union security provision” requiring membership in the union and/or payment of dues to the union as a condition of employment, disgruntled employees can bring a deauthorization petition which, if successful will remove employees’ obligations to pay dues to the union — even while the collective bargaining agreement remains in effect. The NLRB further found that the National Labor Relations Act gives employees this right even if they will not actually lose their employment by failing to financially support or become a member of the union. In other words, the mere fact that the collective bargaining agreement required membership in and/or financial support of the union was sufficient to allow employees to file a deauthorization petition.
The Board’s decision in Los Angeles Times reminds employers that once a year has passed since a representation election, if employees feel that a union is no longer doing its job, they can express their dissent by means other than a decertification petition. If supported by 30 percent of the bargaining unit employees, the filing of a deauthorization petition will require the Board to conduct a secret ballot election. If a majority votes against the union, the union will continue to legally represent employees, but the vote will likely signal that the union’s days are numbered. Even if a deauthorization petition does not result in a majority vote against a union, it can still act as leverage to force an entrenched union to curb activities employees do not support.
That the current NLRB has chosen not to limit this process, and that the mere existence of a union security provision itself is sufficient to give employees the ability to file a deauthorization petition, is a good sign that even in these pro-union times, disgruntled employees retain one significant option to express their discontent.