Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer assistance of decertification petition occurred after majority of unit employees had signed, (Sep 10, 2026)

By Ronald Miller, J.D.

The employer did not violate the NLRA by failing and refusing to recognize and bargain with the union, by unilaterally granting wage increases, by ceasing to deduct and remit union dues, or by removing material from and ceasing access to union bulletin boards.

A divided three-member panel of the NLRB reversed an administrative law judge’s finding and dismissed a complaint allegation that an employer violated NLRA Section 8(a)(5) and (1) by withdrawing recognition from a union absent a valid showing of loss of majority status. The record established that 53 percent of bargaining unit employees had already signed a decertification petition prior to the date the employer engaged in conduct that tainted additional signatures. However, the Board adopted the ALJ’s findings that the employer violated Section 8(a)(1) by prohibiting employees from talking about the union during working time, threatening employees with discipline and reassignment if they talked about the union at work, soliciting employees to sign a petition to decertify the union, promising employees higher pay if they signed a petition to decertify the union, and providing more than ministerial assistance to a petition to decertify the union. Member Prouty filed a separate opinion dissenting in part (Catholic Health Initiatives Colorado dba Centura Health—St. Mary Corwin Medical Center, 375 N.L.R.B. No. 37 (Sept. 9, 2026)).

The employer operates two medical facilities in Pueblo, Colorado. Since November 11, 1974, it has recognized the union as the exclusive representative of approximately 151 nonprofessional employees at the facilities and has entered into numerous collective-bargaining agreements (CBAs) with the union, with the most recent CBA expiring on September 30, 2020. Just prior to the expiration of this CBA, the parties began negotiations for a successor agreement.

Decertification petition. On February 16, 2021, an employee filed a decertification petition for the Pueblo facilities. The employee, along with coworkers, solicited signatures for the decertification campaign. By February 23, they had collected signatures from 53 percent of the unit. On February 24 and 26, the employer promised employees higher pay if they signed the decertification petition and solicited signatures. Also on February 26, the employer prohibited an employee from discussing the union during working time and threatened discipline and reassignment for discussing the union while at work.

On the morning of March 5, the employee delivered approximately 30 pages of decertification signatures. The employer’s human resources personnel immediately began verifying signatures and concluded that a majority of unit employees had signed the decertification petition. Subsequently, the employer notified the union that it was withdrawing recognition because it had received “credible, objective evidence” the union had lost majority support. For its part, the union asserted that the employer had a continuing obligation to bargain in good faith.

On March 9, the employer announced wage increases for unit employees effective retroactively to March 7 without providing the union notice or an opportunity to bargain. Later in March, the employer also ceased deducting and remitting union dues and removed union bulletin boards from the facility.

Withdrawal of recognition. An administrative law judge found the employer withdrew recognition of the union “absent a valid showing of actual loss of majority status.” However, the Board determined that the ALJ’s finding that the employer’s withdrawal of recognition, and subsequent actions based on that withdrawal, did not violate Section 8(a)(5) and (1).

Regarding what qualifies as evidence of actual loss of majority support, the Board usually presumes an employer may not rely on a disaffection petition “it unlawfully assisted, supported, or otherwise unlawfully encouraged” to withdraw recognition. The Board has also implicitly recognized that there is no logical basis to apply that presumption where the record establishes that a majority of unit employees signed the petition prior to any employer conduct that would taint their signatures.

Here, the record established that, beginning on February 24, the employer unlawfully aided or otherwise tainted additional signatures on the decertification petition. However, the record also established that 53 percent of the bargaining unit had already signed the petition prior to that date. Moreover, there was nothing in the record to suggest that any unlawful action on the part of the employer had tainted the validity of those employees’ signatures expressing their loss of support for the union. Accordingly, at the time the employer withdrew recognition, it possessed untainted evidence the union had lost the support of the majority of employees in the bargaining unit.

Prohibiting employees from talking about union. In the last week of February 2021, a supervisor prohibited employees from talking about the union during working time while permitting employees to talk about other nonwork subjects; threatened employees with discipline if they talked about the union at work; and threatened employees that they could be reassigned to a different work location because they talked about the union at work.

It was established in the record that the employer did not prohibit its employees from discussing other nonwork related topics during working time. Nor was there any evidence of a work rule prohibiting employees from speaking to each other during working time. Accordingly, the prohibition would reasonably tend to interfere with the employee’s exercise of his Section 7 right to speak to others about the union during working time.

Threatening employees. During a conversation, a supervisor told an employee that he could be “written up” for speaking to clinic employees about the union. This threat of discipline would have the obvious effect of causing the employee or any employee to refrain from engaging in such Section 7 conversations going forward.

Similarly, the supervisor threatened employees that they were being reassigned to a different work location because they talked about the union at work. This statement was plainly coercive and the fact that the threat was not carried out that did not erase the fact that the threat was made. Thus, the employer violated Section 8(a)(1) where a supervisor made unlawful prohibitions and threats.

Promises and solicitation. On February 24, an agent for the employer promised employees that they would get 5-percent raises and a “pay analysis” if they signed the decertification petition. On February 26, she offered to calculate the pay raise an employee would receive, implicitly if the employees decertified the union. Therefore, the employer violated Section 8(a)(1) by promising employees higher pay if they signed the decertification petition.

Unlawful assistance. The credible facts showed that the employer provided more than ministerial assistance to an employee on February 24 and 26. An employer agent directly participated in the decertification process. The agent visited a clinic for the purpose of answering questions about the decertification process. Although the agent was absent from her workstation at the beginning of her scheduled shift, she was not disciplined in any way for spending hours in the clinic. Based on these facts, the employer plainly provided more than ministerial assistance to efforts to decertify the union.

Partial dissent. Member Prouty would affirm the ALJ’s findings that the employer violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the union on March 5, 2021, based on a tainted petition and absent a valid showing of actual loss of majority status. The dissent would find that the employer acted unlawfully by failing and refusing to recognize and bargain with the union as the exclusive collective-bargaining representative of the unit, and by granting wage increases to employees in the unit, ceasing to deduct dues from unit employees and remitting those dues to the union, and removing materials from the union’s bulletin boards while ending union access to those boards.

The slip opinion is 375 NLRB No. 37.

Attorneys: Julia M. Durkin for General Counsel. Patrick R. Scully (Foley Hoag) for Catholic Health Initiatives Colorado dba Centura Health—St. Mary Corwin Medical Center. William Reinken (Rosenblatt & Gosch) for Communications Workers of America, AFL-CIO.

Companies: Catholic Health Initiatives Colorado dba Centura Health—St. Mary Corwin Medical Center; Communications Workers of America, AFL-CIO

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