The 9th U.S. Circuit Court of appeals has held a Washington state medical center in violation of federal labor law for withdrawing recognition of a union during a protected certification period. Virginia Mason Medical Center v. NLRB, 9th Circ., No. 07-73851, Feb. 25, 2009.

Once a labor union is certified as the exclusive bargaining representative of a unit of employees, that union is entitled to a non-rebuttable presumption of majority status for a reasonable amount of time (the “certification period”), which typically is one year. Throughout the certification period, the employer must recognize the union and must bargain with it in good faith, whether or not the employer believes that the union has lost its majority status with the unit’s members during that time.

In 2000, the United Staff Nurses Union Local 141 (Union) won certification as the representative of unit employees at one of 20 medical clinics run by Virginia Mason Medical Center (VMMC) in the Puget Sound area. VMMC tested that certification by initially refusing to bargain with the Union. The NLRB ordered VMMC to bargain and stated that, to ensure that the employees were allowed the “services of their selected bargaining agent for the period provided by law,” the certification period would be deemed to begin on the date that VMMC “begins to bargain in good faith with the Union.”

VMMC’s petition for review of that order was denied in May of 2002, and in late August of that year, the Union requested a meeting to begin negotiations. VMMC accepted October 1, 2002 as the date of the first bargaining meeting. The parties met over 20 times during the following months. However, on September 23, 2003, the clinic manager received a decertification petition from 8 of the 19 unit members. Three days later, on September 26, VMMC withdrew its recognition of the Union, asserting that the Union no longer had the support of the employees. In response, the Union filed an unfair labor practice charge, alleging that VMMC had hired/fired employees based upon their relationship with the Union, had encouraged a decertification campaign, and had not bargained with the Union in good faith.

In the course of that case, the Administrative Law Judge (ALJ) raised the issue of VMMC’s withdrawal of recognition of the Union during the certification period. Although VMMC argued that the certification period began in the Spring of 2002 when its petition for review was denied, the ALJ disagreed, and determined that the certification period began (according to the 2000 NLRB Order) when good-faith bargaining began between the parties – in this case, on October 1, 2002. The ALJ held that VMMC had violated the National Labor Relations Act by withdrawing its recognition of the Union within the defined certification period. In response to VMMC’s argument that it should be excused from penalty because it withdrew recognition only four days before the expiration of that period, the 9th Circuit specifically held that “there is no de minimis exception for technical noncompliance with Board orders.”

The impact of this decision could be increased by the anticipated passage of the Employee Free Choice Act, anticipated to occur this year. That Act could dramatically change the union organizing process and the established steps in the process of union formation by eliminating secret ballot voting and by establishing unions based solely on the number of authorization cards signed. In that instance, as now, an employer will be obligated to bargain with a union during the certification period, but under EFCA, will face increased penalties for any failure to do so. That, coupled with this case’s holding regarding the employer’s duty to strictly observe the certification period, is likely to lead to an increase in the number of legal challenges related to union activity and bargaining in the near future.