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NLRB General Counsel Issues Memo to Urge Change to Standard When Evaluating Employer’s Involvement In Union Organization/Decertification

 

On September 4th, National Labor Relations Board (“NLRB”) General Counsel Peter Robb issued a guidance memo and urged the NLRB to create one standard when considering whether an employer’s assistance in union organizing violates the National Labor Relations Act (“NLRA”).

An employer violates Section 8(a) of the NLRA when it provides impermissible support to a union that is attempting to organize unrepresented employees.  Conversely, an employer violates Section 8(b) of the NLRA when it provides impermissible support to employees that are seeking to decertify or withdraw from a union.

NLRB precedent applies two different standards when considering what constitutes “impermissible support” under Section 8(a) and 8(b) of the NLRA.  When an employer is accused of impermissibly supporting a union’s organizing efforts, a “totality of the circumstances” standard is applied to consider if a violation of the NLRA occurred.  However, when an employer is accused of impermissibly supporting a decertification, a “more than ministerial aid” standard is applied to consider if a violation of the NLRA occurred.

It goes without saying that as currently applied, these two standards used to consider an employer’s behavior can yield inconsistent results for what constituted “impermissible support.”  The General Counsel’s memo has urged the NLRB to adopt the “more than ministerial aid” standard for both situations.

Whether the memo will spur change remains to be seen.  For the time being, however, the two different standards remain in place.


For a copy of the General Counsel’s Memo:  https://apps.nlrb.gov/link/document.aspx/09031d4583220da3

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