When Does a Neutrality Agreement Provide Unlawful Assistance to a Union? The NLRB GC Weighs In

By Chad M. Horton - Shawe Rosenthal LLP

September 30, 2020

National Labor Relations Board General Counsel Peter Robb issued guidance concerning how he will analyze whether a neutrality agreement provides unlawful assistance to a union, in violation of Section 8(a)(2) of the National Labor Relations Act.

In GC Memo 20-13, the General Counsel directed Regions to apply a “uniform standard” to determine whether an employer is providing unlawful assistance to a union’s pre-recognition campaign or an employee decertification. Currently, the NLRB applies different standards depending on whether the assistance arose in the context of a pre-recognition union campaign (“totality of the circumstances”) or an employee decertification effort (whether the employer provided “more than ministerial aid”). Going forward, the General Counsel will apply the “more than ministerial aid” standard to pre-recognition campaigns, as well. In the GC memo, the General Counsel provides guidance concerning activities and neutrality agreement provisions that he will find provides “more than ministerial aid” and will violate Section 8(a)(2) of the NLRA. The General Counsel will seek an appropriate case to present to the Board where he will argue for the uniform standard, and seek the Board’s agreement that certain types of pre-recognition conduct constitutes unlawful assistance.

Employers sometimes enter into so-called “neutrality agreements” with a union or unions seeking to represent its employees. Generally, these agreements provide that the employer will neither assist nor oppose the union’s organizing efforts. Further, the employer typically agrees to recognize the union – absent a NLRB election – if the union demonstrates that a majority of employees in the proposed unit have signed an authorization card. An employer might enter into such an agreement in consideration for the union’s agreement not to wage a corporate campaign, or because one union may be the “lesser of two evils” in comparison to another union that may be seeking to represent its employees. But, in practice, these agreements may include provisions that assist the union in advancing their effort. The General Counsel will consider the following employer activities and neutrality agreements to constitute “more than ministerial aid” and, thus, unlawful assistance in violation of the NLRA:

•    Permitting non-employee union organizers access to employer facilities: According to the General Counsel, providing union representatives access to employer property or advising employees of union organizers’ presence will be considered unlawful assistance. Notably, this will be true even where the employer restricts the access to before and after the work day, or during non-work time such as employee meal breaks.
•    Allowing union solicitation during work time: The General Counsel concluded that doing so effectively provides employees with “time off from work to collect signatures in the workplace.” The General Counsel noted that an employer would provide “more than ministerial aid” to a decertification effort if it permitted anti-union employees to use working time to seek signatures for a disaffection petition.
•    Providing the union with employee contact information: An employer that gives a union a list of employee names as part of a neutrality agreement will have rendered unlawful assistance.
•    Statements of preference for a specific union: Often, pursuant to a neutrality agreement, the employer will post a notice announcing the agreement. Where the employer’s notice crosses the line into expressing preference for a specific union, the General Counsel has stated that such a statement will constitute unlawful assistance.
•    Negotiating terms and conditions of employment prior to the union obtaining majority support: Some neutrality agreements specify the substantive terms and conditions of employment that will go into effect if the union obtains majority support and the employer recognizes the union as employees’ bargaining representative. Inclusion of the following terms in a neutrality agreement or pre-recognition agreement violate the NLRA, according to the General Counsel:
   o    Wage Provisions: Either specifying the post-recognition wage rate or agreeing to “consider” the wage rates of unionized competitors.
   o    No-Strike Provisions: Any agreement waiving employees’ right to strike prior to the union engaging majority support. But provisions stating that the union will not call or cause a strike prior to obtaining recognition remain lawful.
   o    Agreeing to the Appropriate Unit: Such a provision ousts the Board of its authority to determine what constitutes an appropriate bargaining unit.
•    Restraints on employees’ right to seek Board assistance: Provisions requiring that both the employer and union request dismissal of any employee-filed petition with the NLRB create “mandatory opposition” to employees’ exercise of their statutory right to seek an election, and is “inconsistent with the Board’s compelling interest in protecting employee freedom of choice.”

While the General Counsel’s positions have not been adopted by the Board – and may never be depending on what happens in this year’s presidential election (a “Biden Board” would likely not adopt the GC’s policy positions espoused in this memo) – employers should think twice before agreeing to a union’s template neutrality agreement. Given the nuances of the General Counsel’s policy positions, we would recommend that employers contemplating neutrality agreements seek legal counsel to ensure that the agreement minimizes the employer’s exposure to liability.