A union “interfere(d) with employee free choice” during the run-up to an NLRB election to decertify the union by seeking the discharge of the decertification Petitioner for alleged non-payment of dues and fees to the union, the National Labor Relations Board has held in an unpublished opinion. Bio-Medical Applications of New Jersey, Inc., Case 22-RD-114233 (Apr. 29, 2015).

According to the NLRB, Local 1199J, AFSCME falsely claimed to the employer and other bargaining unit voters that the Petitioner had not paid initiation fees and dues under the union contract, and then failed to inform the voters of its mistake after it dropped its demand for the employee’s discharge. When the union narrowly won the decertification election (15-13), objections were filed to the union’s conduct.

The Board found the union had sent the decertification petitioner letters on successive days claiming he owed $666.30 in unpaid dues and initiation fees, and asserting that under the collective bargaining agreement he could be discharged if he failed to pay. The letters did not explain how the union calculated this amount, but it is undisputed that it was inaccurate. The union also posted one of these letters on the employer’s premises in the employee lunchroom.  The union sent a letter to the employer, as well, requesting that the decertification petitioner be discharged for this non-payment. Two weeks later, the union Vice President met with the bargaining unit employees/voters and told them of the union’s demand to the have the decertification petitioner terminated. However, after the employer challenged the union’s discharge request, the union withdrew its request. It did not inform prospective voters (other than the decertification petitioner) that it had dropped its demand.

Applying its nine-factor test from Cedars-Sinai Medical Center, 342 NLRB 596 (2004) to evaluate whether the union’s conduct during the critical pre-election period interfered with employees’ freedom of choice in the election, the Board held the union’s conduct was objectionable and interfered with employee freedom of choice. Although the union had the right to seek the decertification petitioner’s discharge under the CBA, its claim was inaccurate, and although the union withdrew its demand for his discharge, that fact was not communicated to other bargaining-unit employees.

The Board infrequently finds that a union engaged in unlawful conduct. However, in this case, “[g]iven the severity of this incident, the extent of dissemination, the closeness of the election, and the Union’s failure to effectively disseminate its withdrawal of the threat,” the Board set aside the first election and directed a rerun.

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Photo of Robert J. Guidotti Robert J. Guidotti

Robert J. Guidotti is an Associate in the White Plains office of Jackson Lewis P.C. He is admitted to practice in New York and New Jersey state courts.

Mr. Guidotti received his B.S. in Marketing, magna cum laude, from Fairfield University in…

Robert J. Guidotti is an Associate in the White Plains office of Jackson Lewis P.C. He is admitted to practice in New York and New Jersey state courts.

Mr. Guidotti received his B.S. in Marketing, magna cum laude, from Fairfield University in 2008, where he was a member of the Beta Gamma Sigma Business Honors Society. Mr. Guidotti received his J.D. from St. John’s University School of Law, where he served as a senior staff member with the American Bankruptcy Institute Law Review, in 2011.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.