Workers’ brief blasts NLRB chairman McFerran for trying to enforce provision of the controversial ‘PRO-Act’ that has failed to be enacted

Washington, DC (August 3, 2021) – Workers at a Memphis branch of Geodis Logistics filed a brief with the National Labor Relations Board (NLRB) asking the Board to finally hold a union decertification election the workers have been requesting for over three years. The brief blasted a dissenting opinion by NLRB Chairman Lauren McFerran that argued the workers’ petition should be blocked and the NLRB should not even review their case.

In March 2018, Geodis employee Mary Alexis Ray collected the requisite number of her coworkers’ signatures and submitted a petition to NLRB Region 15 requesting a vote to remove officials of the United Steel Workers union from her workplace. Union officials initially signed an election agreement, but later filed unfair labor practice charges against Geodis, which the Region used as justification to cancel the election.

Because of those pending union “blocking charges” against Geodis, NLRB Region 15 would not grant an election under the presumption that Geodis’s alleged wrongdoing had impacted the workers’ opposition to the union. In response, Ray collected signatures on a second petition, but was again shot down by the Region.

Two years later, Geodis settled the unfair labor practice charges with no admission of wrongdoing. Given that the charges used to block the decertification petitions had been settled, Geodis asked Region 15 officials to reinstate the workers’ petition, but their request was rejected once again. Geodis then asked the full NLRB to review the Region’s decision, and the Board’s majority agreed to review the case and requested briefs from all parties. But NLRB Chairman Lauren McFerran dissented, arguing the workers’ petition should not be reinstated at the employer’s request.

With free legal aid from the National Right to Work Legal Defense Foundation, Ray, who previously had acted on her own without a lawyer, filed a response brief that excoriated McFerran, currently the Board’s lone Democratic appointee. McFerran is poised to soon lead a new Biden majority when two longtime union lawyers nominated by President Biden will both be seated.

In her dissent, McFerran wrote: “An employer has no statutory standing to seek the reinstatement and processing of a decertification petition that has been dismissed by a Regional Director.” She added that, because “the employee who filed these petitions has not sought their reinstatement,” the employer “is not free now to take over an employee-initiated decertification effort that employees themselves seem to have abandoned.”

That Ray filed a response brief disproves McFerran’s baseless assertion that the petition was abandoned by the workers. The brief took McFerran to task for her faulty reasoning: “The legal definition of abandonment requires intentionality…Petitioner Ray never contacted the Region and attempted to withdraw the petition and nothing suggests the unit composition had radically changed, or that the employees repudiated the original decertification effort.”

The workers did not know whether Geodis had complied with its settlement, and could not have known when it was appropriate to file for reinstatement of their petition. As Ray’s brief states, “The fact that Petitioners did not have their own labor lawyers to push the case forward when they did not have the necessary information or means to do so, does not show a lack of interest in, or an abandonment of, these proceedings.”

One party did have the requisite information to file for reinstatement: Geodis. Accordingly, the employer filed for reinstatement of the workers’ petition once it had settled the blocking charges. But McFerran objected, saying that employers lack the legal standing to call for such reinstatements.

Ray’s brief explains that exclusion of employers makes it nearly impossible for workers to carry out their own decertification efforts because they have little knowledge of the employer-union disputes that are blocking their elections. Instead, the brief argues, “the entity with the most knowledge of the underlying facts would be best suited to file a Request for Review and/or a request to reinstate the petition—and that entity is the employer, not the petitioning employee.”

“Chairman McFerran apparently desires to neuter employees’ decertifications by making it impossible for their petitions to be defended.” Employers are not supposed to interfere in employee decertification efforts, but that clearly is not the situation in this case. As Ray’s brief contends, “It is farcical to say that an employer ‘interferes’ ‘restrains’ or ‘coerces’ employees by filing a legal brief asking for reinstatement of the petition the employees themselves collected and filed.”

Given that McFerran’s arguments are “farcical” under current law, Ray’s brief suggests McFerran may have derived them from laws-yet-to-be. As the brief puts it, her dissent “appears to herald a backdoor administrative effort to adopt a provision of the so-called Protecting the Right to Organize Act (‘PRO Act’) that would disqualify employers as parties in all election cases―without regard to whether Congress ever passes such unprecedented and radical legislation.”

In the intervening three years since she filed her petitions, Ray was promoted to a management position outside the union’s control. Her brief therefore asks that Geodis employee Charyl Cathey be made the new petitioner, and asks the Board to schedule a decertification vote without delay.

“The workers at Geodis Logistics have waited over three years for a vote, but the NLRB Chairman wants them to wait even longer, and in fact probably never wants the employees to have any vote to remove the unwanted union,” said National Right to Work Legal Defense Foundation President Mark Mix. “Mary Alexis Ray went through the effort of collecting signatures on not one, but two, decertification petitions, and after years of NLRB-approved legal delays, Lauren McFerran had the nerve to suggest that employees have abandoned their petition.”

“McFerran’s position, like the so-called PRO-Act, is just another blatant attempt to rig federal labor law further in favor of union bosses to the detriment of rank-and-file workers opposed to union affiliation.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.