When Is Objectionable Conduct Not Objectionable? When It Is Committed By The Union

In Community Options NY, Inc., 359 NLRB No. 165 (2013), the Board condoned the bribing of employees to vote against decertification by waiving union dues. Strong words, but no other conclusion can be reached after reviewing the Board's decision.

The facts are straightforward. The union was certified in November 2009. The parties bargained and reached a tentative agreement on the terms of the initial contract. The tentative agreement included a union security clause requiring employees to begin paying union dues 30 days following ratification of the agreement. The ratification vote was scheduled for October 20, 2011, but before it could be held, a decertification petition was filed and the decertification vote was scheduled for November 10, 2011. At the October 20 ratification meeting, employees voiced concerns regarding the limited wage increase, so the union promised to waive the payment of dues for six months. The contract was ratified and the Union used the six months' dues waiver as a campaign issue during the three weeks remaining before the election. Not surprisingly, the union was not decertified on November 10.

The hearing officer found the union's conduct objectionable. The Board overruled the objection. The Board found that the waiving of dues was not a financial benefit because at the time the offer was made, prior to the ratification vote, there was no contractual requirement to pay dues. The Board reasoned that the contractual requirement was controlled by the employees - meaning if the employees did not ratify the contract, there would be no obligation to pay dues.

Even if the dues waiver conferred a financial benefit, the Board said this was permissible under Gulf States Canners, 242 NLRB 1326 (1979). The Board in Gulf States...