Labor & Employment Law Daily Wrap Up, LABOR NEWS—Union did not violate NLRA by demanding arbitration under pre-hire labor peace agreement, (Mar 31, 2025)

By Patricia K. Ruiz, J.D.

An employer becomes a perfectly clear successor when it states its intent to retain the predecessor employees but does not mention its intent to change terms and conditions of employment.

An advice memo released recently by the National Labor Relations Board (NLRB) found that Local 32BJ, Service Employees International Union did not violate section 8(b)(1)(A) of the National Labor Relations Act (NLRA) by negotiating and executing a pre-hire labor peace agreement (Agreement) with Westmoreland Protection Agency, Inc. (WPA) or by demanding arbitration under the agreement. The advice memo was issued under the Biden administration.

Local 32BJ, Service Employees International Union. The Union represents security officers employed by Allied Universal Security Services working at certain public facilities in Broward County, Florida (Group 1 sites). The Union entered into a master collective-bargaining agreement (CBA), which was effective January 1, 2022, to December 31, 2024. The agreement required an hourly wage and supplemental health care benefit contribution consistent with the Broward County Living Wage Ordinance. It also contained a most favored nations clause entitling signatory employers to more favorable terms and conditions if the Union entered into an agreement with another employer with such terms.

Agreement. In November 2022, WPA was awarded the Group 1 work formerly performed by Allied, and the Union and its members protested against the award. Prior to the Broward County Commission’s approval vote, WPA met with the union, refusing to agree to the terms of the CBA with Allied but indicating its willingness to negotiate a CBA once it was awarded the Group 1 contract and the workforce was hired. The Union asserted WPA agreed to hire all former Allied employees and that, in exchange, the Union agreed to remain neutral regarding the award of the Group 1 contract before the Commission. In December 2022, the Commission approved the award of the Group 1 contract to WPA. When WPA sent the Union a summary of benefits, some of the terms differed from Allied’s CBA, and the Union objected to the terms as inconsistent with the Agreement and demanded arbitration; WPA took the position that the Agreement violated the NLRA and continued to hire under its own terms. Once hiring was completed, a slim majority of the workforce consisted of former Allied guards. A September 2023 arbitral decision found WPA violated the Agreement by rejecting certain contractual terms from the Allied CBA, and the parties eventually executed a CBA effective January 15, 2024, to December 31, 2024. A decertification petition remains pending before the region.

Perfectly clear successor. The NLRB concluded the WPA is a perfectly clear successor; thus, its negotiation of the Agreement and its demands for arbitration under its terms were lawful. An employer becomes a perfectly clear successor when it states its intent to retain the predecessor employees but does not mention its intent to change terms and conditions of employment. In assessing an employer’s intentions with regard to workforce retention and establishment of initial terms, the NLRB considers statements made to employees directly or through their bargaining representative. A perfectly clear successor’s bargaining obligation arises on the date it states its intent to hire the predecessor employees without clarifying its intent to hire those employees on different terms. Thus, WPA was a perfectly clear successor based on the commitments it made in December 2022 to hire all of the Allied employees without mention of any new employment terms and conditions. The NLRB cited a provision of the Agreement representing a commitment to retain a sufficient number of Allied employees such that they would comprise a majority of the new workforce. It further found the Agreement did not announce any changes to working conditions.

Companies: Westmoreland Protection Agency, Inc.

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