Under the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) may not certify a union to represent a bargaining unit if the union admits into membership both guards and non-guards. (29 U.S.C. Section 159(b)(3)). However, an employer may voluntarily recognize such a union. For the past thirty-two years, the NLRB has held that an employer which voluntarily recognized a mixed-guard union to represent its employees may, in its sole discretion, withdraw such recognition provided there was no collective bargaining agreement (“CBA”) in effect. In other words, at the expiration of a CBA with a mixed-guard union, an employer was permitted to withdraw its recognition of the union as the representative of the employees covered by the CBA.

Recently, in Loomis Armored US, Inc., 364 NLRB No. 23 (2016), the NLRB overruled this long-standing precedent and held that once a mixed-guard union is voluntarily recognized by an employer, the employer may not withdraw recognition unless the mixed-guard union has lost the majority support of the employees. While it is too late for employers that have already voluntarily recognized a mixed-guard union, employers contemplating such a move should be mindful of the change in the law.  

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