Voluntarily Recognized Guard Units Have A Protected Right To Bargain
The National Labor Relations Board (NLRB) has ruled that going forward voluntarily recognized guard units will have the same protected right to bargain as other voluntarily recognized bargaining units in Loomis Armored USA, Inc. 364 NLRB No. 23 (June 9, 2016). This case arose when the Loomis Armored withdrew recognition from six Teamster locals which had represented Loomis Armored employees for at least 10 years, and in some cases as many as 47 years. Loomis did not claim that it doubted the Union’s majority status but rather based its withdrawal of recognition and refusal to bargain on a case which was decided by the NLRB in 1984, during the presidency of Ronald Reagan, Wells Fargo Corp. 270 NLRB 77 (1984). In that case, the Reagan Board permitted the employer to withdraw recognition from the union representing guards because the union was a mixed union including both guards and other employees. Under Section 9(b)(3) of the National Labor Relations Act, mixed guard Union cannot be certified to represent guards. Section 9(b)(3), however, does not prohibit voluntarily recognition of a mixed guard union as representative of a guard unit and does not address what happens if an employer withdraws recognition from that union and refuses to bargain. Nonetheless, in 1984 the Reagan Board allowed an employer to do just that, creating an exception to the general rule that an employer remains bound to bargain with a voluntarily recognized union unless the union loses majority support.
Under the new holding in Loomis Armored, in the future, guard units which are represented by mixed guard unions will have the same protection as in other voluntary recognized bargaining units. When a contract terminates the employer will have to maintain the terms and conditions of employment and bargain in good faith with their union unless the union loses majority support. Only one board member dissented from the decision and he acknowledged that the interpretation adopted by the majority of NLRB members on June 9th “is supported by the literal wording of Section 9(b)(3)” and that “it furthers the Board’s interest in fostering stable bargain relationships by preventing employers from withdrawing recognition after contract expiration where the union continues to enjoy majority support.” Decision p. 9
Unfortunately, the four Board member majority decision is not retroactive but will only apply cases which arise from the time of the decision going forward. As a result, the employees at Loomis Armored still lost the protection which voluntarily recognized guard units will enjoy in the future.