On June 11, 2024, the National Labor Relations Board (NLRB) issued a very short but interesting decision in Governed United Security Professionals (Golden SVCS, LLC) and Sheldon N. Fraser, 373 NLRB No. 66 (June 11, 2024), affirming an administrative law judge’s (ALJ) finding that a union violated the National Labor Relations Act (NLRA) when it refused to recognize employees’ dues revocation requests after a successful deauthorization election. Deauthorization elections are rare, and this decision is a ripe opportunity to review the specific facts of this case and remind employers about this arcane but significant procedural NLRA vehicle.
The Parties and the Collective Bargaining Agreement (CBA)
The employer, an armed security guard service company, employed approximately 72 security guards in a bargaining unit working at the FCC headquarters in Washington DC. The parties’ CBA, which ran from April 1, 2021 to March 30, 2024, contained a union security clause requiring bargaining unit employees to become members of the union within 10 days following 31 days after the contract’s effective date or 30 days after hire date, whichever was later. The CBA also required the employer to deduct initiation fees and dues from employees’ regular wages and remit to the union. In August 2021, a unit employee filed a petition for a deauthorization election to rescind the CBA’s security clause.
What is Deauthorization?
Under the NLRA, employees who are subject to a union security clause have the right to call for a deauthorization election if 30 percent or more of the employees in the bargaining unit sign a “UD” petition. A deauthorization petition is not to be confused with a decertification or “RD” petition, in which employees seek a vote to remove the union as their collective bargaining representative. If employees win a deauthorization election, they remove any union security clause or requirement to pay dues from their CBA; however, the union remains as their exclusive bargaining representative, and all other terms of the CBA remain in effect.
Under the NLRA there are time restrictions on when a petition for a decertification can be filed. The NLRB ordinarily will not process any representation or decertification petition filed during the first three years of a valid CBA, save for petitions filed during a specified “window period” before the expiration date of the agreement. That window is the 30-day period that begins 90 days and ends 60 days before the agreement expires (there are different timelines for healthcare). And then petitions can be filed if the contract has expired. Deauthorization petitions, on the other hand, will be processed so long as there is a union security clause in place and it has been one year since the last election.
The Election in Golden SVCS, LLC
For the deauthorization election in this case, the bargaining-unit employees unanimously voted to deauthorize their CBA’s security clause requiring union membership as a condition of employment. A review of the election data shows the Region actually ran two elections, one in October 2021 and one in January 2022, and each time the unit employees voted unanimously to rescind the union security clause. The Regional Director certified the results, and thereafter, employees could withdraw from the bargaining unit and revoke their checkoff authorization without jeopardizing their employment; however, despite verbal and/or written requests from at least 30 employees, the union ignored all but five requests to rescind membership and their dues authorization, telling at least one employee, “No, we are going to stay on for a while.”
The ALJ and NLRB Decisions
The employer and the employee who filed the UD petition alleged unfair labor practices against the union, and following a one-day trial, the ALJ found the union unlawfully restrained employees’ Section 7 rights. The opinion explained, “Section 7 of the Act gives employees the right to ‘refrain from any or all of such [labor organizing] activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment. . .’ Consistent with that right, the Board recognizes the ability of employees to resign their union membership at any time without restriction.’” In this case, since the Region certified the results of the UD election, the contract provisions requiring employees to be members of the union and pay dues were void. Further, the ALJ made clear that unions unlawfully restrain employees’ Section 7 rights by failing to “‘promptly give effect’ to a member’s resignation when it is received. ‘When an employee mails his resignation notice to the union, the effective time and date of the resignation is 12:01 a.m. local time the day after it is mailed.’ Pattern Makers (Michigan Model Mfrs. Assn.), 310 NLRB 929, 930 (1993).” The judge ordered the union to make employees whole by paying them any dues or fees the employer deducted from their paychecks, less any already refunded amount, plus interest.
The NLRB agreed and adopted what it called an “expanded remedy” contained in the judge’s recommended Order even in the absence of exceptions; however, because the ALJ named the employees known at the time to be affected, the NLRB further expanded the remedy to clarify that “any employee who, on or after January 18, 2022, notified the [union] that the employee wished to revoke their dues-withholding authorization” should receive the make-whole remedy in case other employees were identified at the compliance stage.
Conclusion
Deauthorization “UD” petitions are uncommon; in 2023 only 20 were filed, as opposed to 1,525 RC Petitions (representation petitions unions/employees file when seeking an election for union representation) or 168 RD Petitions (decertification petitions employees file when seeking an election to remove a union as representative). For states with right-to-work laws, parties are already restricted from negotiating CBA terms that require all unit members to join a union and pay dues as a condition of employment. This recent NLRB case is a good reminder that employees who are subject to union security clauses and mandatory dues check off also have a right under the NLRA to petition for an NLRB deauthorization election regardless of the effective date listed on a CBA.
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