A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards.

Adopting a new rule proposed by the NLRB General Counsel and the six Teamsters-affiliated unions which represented Loomis employees at various California locations, the Board holds that an employer of security guards, like other employers, remains bound by a collective-bargaining relationship into which it voluntarily entered unless and until the union is shown to have actually lost majority support among unit employees. Loomis Armored US, Inc., 364 NLRB No. 23 (June 9, 2016). 

Section 9(b)(3) of the National Labor Relations Act prohibits the NLRB from “certifying” any union which represents both guards and non-guards as the bargaining representative of a unit of security guards, but does not prohibit an employer from voluntarily recognizing such a union. Historically, the NLRB has held if an employer did so, it could still withdraw recognition from such a “mixed-guard union” if no bargaining agreement is in place, even if the union had not lost majority support among employees.

The Board articulated three reasons for its decision. First, although Section 9(b)(3) prohibits such mixed-guard unions from being certified by the Board, it does not expressly address the situation where an employer voluntarily recognizes a mixed-guard union for a unit of guards, but then seeks to withdraw such recognition.  Second, the Supreme Court has observed that exemptions from NLRB coverage should be narrowly construed so as not to deny the protections of the NLRA to workers.  Third, the new rule will promote the statutory purpose of fostering stable labor-management bargaining relationships.

The new standard will not be applied retroactively. For the foreseeable future, the rights of any employer which is a party to a mixed-guard bargaining relationship are as set forth in Loomis.  As with any other unit of employees, once an employer voluntarily recognizes a mixed-guard union as the representative of its security guards, the employer must continue to recognize and bargain with the union unless and until it can be shown that the union has actually lost majority support among unit employees.  Absent that showing, the Board will hold that an employer’s unilateral withdrawal of recognition from the union will violate the employer’s duty to bargain under the NLRA.

 

 

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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.

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.