NLRB: Settlement deal between employer and union officials cannot nullify workers’ legal right to hold a decertification election to remove union

Washington, DC (October 23, 2019) — With free legal aid from the National Right to Work Legal Defense Foundation, an Illinois-based employee of Pinnacle Foods Group LLC (a Conagra Brands subsidiary), Robert Gentry, has just won a decision from the National Labor Relations Board (NLRB) which affirms the right of workers to hold a vote to remove an unpopular union from their workplaces. The decision comes after union officials and Pinnacle Foods signed off on a settlement which the union and NLRB Regional Director claimed blocked Gentry and his coworkers from exercising their right to hold a union decertification election.

Gentry first submitted a petition for a decertification vote in August 2018. United Food and Commercial Workers (UFCW) Local 881 union officials immediately attempted to block the election by filing unfair labor practice charges against Pinnacle Foods. Despite UFCW officials’ allegations being unrelated to Gentry’s petition to remove the union, the NLRB Region 14 Director approved a settlement between UFCW officials and Pinnacle Foods which purportedly created a seven-month “bar” on decertification elections, on top of a previous one-year “bar.”

Although not mandated or even mentioned by the National Labor Relations Act (NLRA), prior NLRB actions have created the so-called “settlement bar” doctrine, which blocks workers for a period of time from exercising their statutory right to hold a vote to remove a union.

With legal representation by National Right to Work Foundation staff attorneys, Gentry submitted a request for review to the NLRB in Washington, DC, demanding that the Board reverse the dismissal by the Region 14 Director and allow the decertification vote to proceed. The request argued that the Regional Director was wrong to use the settlement – to which Gentry was never party – to approve a block on the decertification election. “[T]he Regional Director cannot seriously contend that the petition should be dismissed…for the simple fact that…it is Mr. Gentry’s and the employees’ petition” and not that of the union or employer, the request reads.

The request further pointed out that the settlement agreement being used to block the workers right to a decertification vote contained a “non-admission” clause which plainly stated that the settlement “[did] not…constitute an admission, finding, or adjudication” that Pinnacle Foods had violated the NLRA. It also said that such a “mere presumption” of employer wrongdoing “is not…sufficient to thwart a decertification election.”

The decision from the NLRB in Washington, DC, now orders the Region 14 Director to process Gentry’s request for a decertification vote. The three-member majority agreed with the reasoning in Gentry’s request for review, ruling that “[b]ecause [Gentry] did not consent to the settlement agreement, we find that the settlement agreement can neither waive [his] right to have his decertification petition processed nor delay” a decertification election.

Foundation staff attorneys have long urged the NLRB to eliminate such “bar” doctrines that are not mandated by the statute enacted by Congress, which block workers from holding decertification votes authorized by the NLRA. Though agency officials announced last year that they would work in rulemaking to address some of these barriers to workers holding decertification votes, Foundation Legal Director Raymond LaJeunesse wrote a letter last year encouraging the agency to go further and eliminate all “bars” which run contrary to the NLRA by trapping workers in union boss ranks where even large majorities oppose the union.

“Although it’s good news that Robert Gentry and his coworkers will belatedly be given the opportunity to exercise their right to remove a union they oppose, this case shows how the so-called ‘settlement bar’ and other ‘bars’ are manipulated by union bosses to trample workers’ statutory rights under federal labor law,” commented National Right to Work Foundation President Mark Mix. “Union bosses should not be able to trap workers in union ranks on the basis of a settlement to which the workers were not party and to which they had no say.”

“It’s long past time the NLRB put employee free choice back at the center of American labor law and eliminated the numerous ‘bars’ and doctrines that block workers from exercising their right to removing union officials they oppose,” added Mix.

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.