Attorney Alex Robertson Embarrasses Right To Work Foundation In Successful Effort To Block Decertification Election At Cannabis Facility
On May 3, 2023, the Commonwealth Employee Relations Board issued a ruling upholding the state regulation that allows unions to block elections -- including decertification elections -- when the employer has committed significant unfair labor practices that might impact the outcome of the election. This case of first impression was successfully argued by Pyle Rome attorney Alex Robertson on behalf of UFCW, Local 1459.
Local 1459 became the certified bargaining representative for agricultural employees at Berkshire Roots' grow facility through the state's card-check law, which applies to public employees as well as agricultural workers. Nearly a year to the day after the Union was certified, an employee filed a petition seeking an election to decertify the Union. However, in the intervening time, the company made significant changes in working conditions without bargaining, leading the Union to file unfair labor practice charges against the company. The state labor board issued a five-count complaint against the company for these violations, and the Union then moved to block the decertification petition under the state regulation that allows for the blocking of elections in cases where an employer's unfair practices might tend to impair the employees' free choice in the election.
The Union's effort to block the election was challenged by both the company and by the employee who filed the petition, who in turn was propped up by the anti-union National Right to Work Foundation. Despite the vigorous efforts of the well-funded anti-union foundation, Attorney Robertson convinced the Board to uphold the important blocking-charge rule.
Belying their status as out-of-staters, the anti-union lawyers incorrectly asserted that the state labor law was passed in 1973 when in fact it was passed in 1937. And the rest of their claims fared no better. The Board held that the blocking-charge rule is an important tool to "ensure that employees can exercise their right to vote in a representation election freely and without coercion or interference." In this particular case, the Board held that the nature of the company's unilateral changes -- including changes in compensation, paid breaks, and the use of contractors -- having been made without union input, "could lead employees to believe . . . that there is no true benefit to having a union” and would thus be likely to taint employee free choice in an union election.
As a result of Attorney Robertson's efforts, the Board ordered that the decertification petition be placed in "inactive status" until after the outcome of the unfair labor practice proceedings, which are scheduled for trial in October 2023 and are unlikely to be finally resolved until some time in 2024. The Board further ordered that the company must continue to comply with its obligation to bargain with the Union for a collective bargaining agreement covering these workers while the proceedings continue.
