April 18, 2018 DC Circ. Puts Union Blocking Charges On Chopping Block

By Kevin Brown and Hollis Peterson April 18, 2018, 11:43 AM EDT, Law360.com

In an unpublished judgment in T-Mobile v. National Labor Relations Board, the D.C. Circuit recently affirmed the NLRB’s 2001 holding in Levitz Furniture Co[1], confirming that an employer with objective proof that a union has lost majority support has only two choices — withdraw recognition completely or continue to bargain while awaiting the final results of a board election. Not wanting to risk the potential remedies associated with an unlawful withdrawal charge and facing interminable delays due to the union’s filing of a blocking charge, T-Mobile created a third option for itself — bargaining on “imminent issues” only and refusing to bargain over a successor contract, while awaiting resolution of an employee-filed decertification petition. But in a 2-1 decision, the D.C. Circuit held that a “middle-ground” approach — including good-faith negotiation of limited issues — violates the National Labor Relations Act.[2]

Notably, the dissent offered a strong rebuke of the board concerning the lengthy delays created by its “blocking charge” policy, which allows unions to hold decertification petitions and election results in abeyance for long periods of time by filing unfair labor practice charges. Indeed, both the court of appeals opinion and the underlying board opinion cited delays in the special election process as a reason to change the board’s current blocking charge policy. In his dissent, Senior Judge David Sentelle, noted that the employee’s decertification petition in T-Mobile had been held in abeyance by a meritless blocking charge for four years, and chastised, “If there is unfair prejudice in this case, it is by the board, not the employer.” The majority declined to formally consider T-Mobile’s objection to the policy, however, because T-Mobile failed to challenge it before the board, but noted that the board can revisit the policy in a future case. Now that John Ring’s confirmation has effectuated a Republican, pro-business majority on the board, this “continuing problem” is likely to be addressed sooner rather than later.

T-Mobile Highlights The Paradoxical Effect of Blocking Charges

Blocking charges are one of a union’s most powerful tools to delay decertification, but permitting their unrestrained use has created unintended consequences for a board charged with ensuring labor stability and the free exercise of employee rights. The facts in T-Mobile are illustrative. Presented with a petition signed by 13 of its 20 employees, stating they no longer wished to be represented by the union, T-Mobile could have withdrawn all recognition of the union after the contract expired. The employee petition was submitted to the company after an individual employee had filed an RD petition (a petition for decertification) with the board, which had come to a standstill upon the union’s filing of a blocking charge. T-Mobile was faced with two options: withdraw recognition or continue to honor its bargaining obligations during the pendency of the blocked decertification election. Levitz instructs employers that withdrawal of recognition is a “high-stakes option” chosen at their peril, and that “board-conducted elections are the preferred way to resolve questions regarding employee’s support for unions.”

After considering these two options, T-Mobile came up with a third. The company continued to negotiate “imminent” items with the union while waiting for the election results, but refused to bargain over a successor collective bargaining agreement. The D.C. Circuit held this was an unlawful middle ground. In following the Levitz precedent, the majority clearly shared the NLRB’s concern about “selective bargaining” by employers, even though there was no evidence of bad faith by T-Mobile. In other cases, though, the majority reasoned that employers could create an unbalanced playing field by unilaterally deciding to bargain over areas in which they had an advantage, thereby weakening unions. As noted above, the majority declined to consider T-Mobile’s challenge to the “blocking charge” policy because the issue was not raised with the board, reserving the question for a future case.

This ruling demonstrates the Hobson’s choice that employers face between: (1) riding out the special election process for what could be years, while continuing to recognize and negotiate with the union on behalf of employees who do not wish to be represented by it; and (2) withdrawing recognition from the union, which “would likely be subject to protracted litigation under the Levitz standard.”[3] And though unintentional, the D.C. Circuit’s decision combined with the board’s long delays in resolving blocking charges and election objections may result in an increase in employers willing to engage in the “high-stakes” option of recognition withdrawal — at least until the current blocking charge policy is revised by the board.

With no permissible middle ground, employers will likely be reluctant to allow their employees to be held hostage by a union during protracted litigation over blocking charges and election objections. In addition to the process being costly, such litigation creates instability in the workforce and is contrary to both the employer’s and employee’s interests. Thus, any employer with objective evidence of a loss of union support should consider withdrawing recognition from the union upon expiration of the current contract, keeping in mind the burden of proof, evidence required and almost-certain litigation that will follow. Therein lies the paradox; the board’s current policies cause inevitable disruption for employers and employees, wholly contrary to its goal of promoting labor stability.

Policy Changes Are Likely

The National Labor Relations Board laid out a road map of future policy changes in the months leading up to the T-Mobile decision. Trump-appointed General Counsel Peter Robb rescinded General Policy Memorandum 16-03 in December 2017, which required employers to utilize elections before withdrawing support instead of merely having “objective evidence” under Levitz. And the Republican members of the NLRB took the unusual step of signaling their intention to modify the blocking charge policy last year in a footnote: “Member [Marvin] Kaplan … would consider revisiting the board's blocking charge policy in a future appropriate case. Member [William] Emanuel agrees that the determination to hold the petition in abeyance in this case was permissible under the board's current blocking charge policy, but he believes that the policy should be changed. Specifically, he believes that an employee's petition for an election should generally not be dismissed based on contested and unproven allegations of unfair labor practices.”[4]

While those changes were not possible with an evenly split board, the NLRB is now back to full strength with a GOP majority, and it seems clear that the blocking charge policy is on the list of Obama-era policies and decisions that have been targeted for change by the new board. While the blocking charge waits for its turn in line, employers should abide by the Levitz framework when a union has lost majority support and work closely with labor counsel to consider the available options.

Kevin M. Brown is an associate and Hollis R. Peterson is a partner at Paul Plevin Sullivan & Connaughton LLP in San Diego.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Levitz Furniture Co. of the Pac. Inc., 333 NLRB 717 (2001).
[2] T-Mobile USA Inc. v. National Labor Relations Board, No. 17-1065 (D.C. Cir. March 27, 2018).
[3] T-Mobile USA Inc. & Commc'n Workers of Am., Afl-Cio & Commc'n Workers of Am., Local 1298, Afl-Cio, 365 NLRB No. 23 (Feb. 2, 2017) (Miscimarra, dissenting).
[4] Adt Sec. Servs. Employer & Ibew Local 110 Union & Lance Oelrich Petitioner, 18-RD-206831 (Dec. 20, 2017).