The NLRB’s General Counsel recently issued a memo that demonstrates his hostility toward neutrality agreements.  Generally, neutrality agreements contain a promise from an employer that it will remain neutral in a union organizing campaign.  These agreements often contain other provisions, such as allowing unions access to employer property to address employees and providing unions with employee contact information.  In return, a union often promises employers that employees will not strike.

Initially, it is extremely important to note that the General Counsel’s views are not binding as NLRB precedent.  Only the Board itself can change its precedent, either by way of its decisions in NLRB cases or through rulemaking.  It is also unclear what the composition of the Board will be if/when any cases come before it under the theories set forth in the General Counsel’s Memo.   While the General Counsel cannot change NLRB law, he is in charge of brining cases before the NLRB by way of issuing complaints.  In this regard, the memo signals that he will prosecute cases based on neutrality agreements deemed to be unlawful.

The NLRA prohibits employers from providing assistance to a union seeking to organize its employees.  That said, the NLRB has historically allowed cooperation between employers and unions regarding organizing, but has prohibited certain forms of assistance.  “Cooperation” crosses the line to unlawful “assistance” when it interferes with employees’ free choice in selecting whether a union will represent them or not.

Somewhat surprisingly, the topic of neutrality agreements as tools of unlawful assistance has not frequently come before the Board in the past.  Aside from ruling that an employer and union cannot bargain for a full collective bargaining agreement before the union represents a majority of employees, the Board has generally left unions and employers free to enter into neutrality agreements.

The memo marks an important turn in this area of the law.  The General Counsel provides examples of neutrality agreement provisions that would be considered violations of the NLRA under his proposal.  Some examples include provisions that are common in most, if not all, neutrality agreements.  Examples include:

  1. Allowing union organizers to access employer facilities (even during non-working time).
  2. Allowing union solicitation (by employees or non-employees) during working time.
  3. Providing unions with employee contact information.
  4. Agreeing to some limited CBA terms before certification that a majority of employees support the union, including: (a) interest arbitration to set the terms of a CBA if bargaining fails and (b) no-strike / no lockout provisions (although the union could agree that it would not call for or encourage employees to strike).

If adopted by the Board, the proposals contained in the memo would render common provisions of neutrality agreements unlawful.  Even prior to a Board ruling, however, unions and employers could be subject to unfair labor practice charges from objecting rival unions or employees pursuant to the General Counsel’s memo.  Again, the General Counsel decides which cases to bring before the Board, so the signal contained in this memo strongly indicates that he is prepared to prosecute cases that involve these types of neutrality agreements.

But, what about the election?  Wouldn’t President-Elect Biden replace the General Counsel?  As it turns out, the General Counsel’s five-year term overlaps any change in Presidential administrations.  The current General Counsel will be in his position until 2022, and will have the power to bring neutrality agreement cases before the Board anytime during his tenure.

Andrew MacDonald is a partner in the firm’s Labor and Employment Department, resident in its Philadelphia office.