Hearst Trumps Master Slack in Good-Nite Union Decertification Case

By Robyn Hagan Cain on November 27, 2012 | Last updated on March 21, 2019

There are plenty of business owners who dislike dealing with unions, but bigwigs are limited in what actions they can take to dissolve their employees' unions.

For example: Cornering staff members and asking them to sign a union decertification petition? Not okay.

During a bargaining session, Unite Here! Local 2 demanded that SFO Good-Nite Inn, LLC discharge five new housekeepers unless they paid union dues pursuant to a union-security clause in the agreement. Days later, Good-Nite general manager Azfal "A.C." Chaudhry and banquet manager Naomi Grace Vargas met with two of those housekeepers. They told them about the outstanding dues, stated that the Union was "no good," and asked them to consider signing a "paper" to eliminate the Union.

The paper was actually a union decertification petition.

In the following weeks, Good-Nite management approached various staff about signing the petition. On September 14, 2005, Good-Nite withdrew recognition of the Union based on petitions signed by 13 of the 24 unit employees stating that they no longer wished to be represented by the Union.

On October 14, 2005, the Union filed an unfair labor practice charge with the National Labor Relations Board. The General Counsel of the Board issued a complaint on March 1, 2006. The Board concluded that Good-Nite had violated section 8(a)(1) of the National Labor Relations Act by soliciting employees to sign an anti-union petition with threats or promised benefits and by unlawfully withdrawing recognition of and refusing to bargain with the Union.

Here, the Board applied the Hearst presumption of taint based on "narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employees' representative."

Good-Nite, on appeal, argued that the Board should have applied the four-factor Master Slack test, instead of Hearst.

The Board, however, explained:

Hearst applies when an employer has engaged in unfair labor practices directly related to an employee decertification effort, such as here, whereas Master Slack applies to "other unfair labor practices distinct from any unlawful assistance by the employer in the actual decertification petition." A causal nexus must be shown in the Master Slack line of cases because "there is no straight line between the employer's unfair labor practices and the decertification campaign, and the Master Slack test must be used to draw one, if it exists." By contrast, in the Hearst line of cases, "the employer's unfair labor practices are not merely coincident with the decertification effort; rather, they directly instigate or propel it."

The D.C. Circuit Court of Appeals affirmed that decision, finding that the Board's Hearst presumption was reasonable and consistent with the Act, and that the Board's factual findings are supported by substantial evidence in the record.

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