NLRB Rules Decertification Votes Must Be Counted Despite Union-Employer Settlement

When an employer and a union settle unfair labor practice charges, the signature on that agreement does not automatically invalidate a workforce's pending vote to decertify the union. The National Labor Relations Board ruled on September 1, 2026, that regional directors cannot dismiss employee decertification petitions simply because the company and the union reached a bilateral settlement that excludes the workers. In a divided decision regarding the McDowell County Commission on Aging, the Board majority ordered regional officials to open and count ballots that had been impounded since July 2024, establishing that a settlement without an admission of employer liability does not constitute evidence of unlawful interference.[1][3]

The dispute originated in June 2024, when John Reeves, an employee at the West Virginia-based senior homecare nonprofit, filed a petition to remove Service Employees International Union (SEIU) District 1199 as the workplace representative. The petition gathered the required signatures following the expiration of the collective bargaining agreement, and an election was scheduled and held on July 9, 2024. However, the ballots were never tallied. Shortly before the vote, the SEIU filed unfair labor practice charges alleging that the employer had improperly assisted and solicited the decertification effort.[1][2]

Under the NLRB procedures active at the time, the regional director impounded the ballots pending the resolution of the union's charges, leaving the election outcome in limbo. In January 2025, six months after the workforce cast their votes, the McDowell County Commission on Aging and the SEIU reached a bilateral settlement agreement to resolve the unfair labor practice allegations. Crucially, the settlement contained no admission of wrongdoing or liability by the employer. Yet, as a condition of the agreement between the company and the union, the regional director was required to dismiss the employees' decertification petition entirely, effectively nullifying the election.[1][2]

Following the execution of the settlement, the regional director issued a formal dismissal letter that discarded the July 2024 votes, citing the settled allegations as evidence that the decertification process had been tainted. Reeves, who initiated the petition and was not a party to the settlement between the employer and the union, appealed the decision to the NLRB in Washington, D.C. Supported by the National Right to Work Legal Defense Foundation, Reeves argued that the regional office had improperly rubber-stamped a collusive deal designed to disenfranchise the workforce without ever proving the underlying allegations.[1][2]

In the 375 NLRB No. 33 decision, Board Chairman James Murphy and Member Scott Mayer reversed the regional director's dismissal. The majority anchored their ruling in the 2007 precedent set by TruServ Corp., explaining that a settlement of unfair labor practice charges without an admission of liability does not, by itself, provide substantial evidence that the employer actually engaged in misconduct. Because the employer never admitted to the charges, the settlement alone could not justify throwing out the petition.[1][2]

The majority acknowledged that a decertification petition can still be lawfully dismissed if a regional director makes an actual, independent administrative finding that the employer instigated the petition or directly solicited the showing of interest. However, the Board found that the regional director in the McDowell County case failed to do so. The dismissal letter, the majority noted, did nothing more than recite the settled complaint allegations without articulating a specific finding of direct employer involvement.[1][2]

Member Prouty issued a dissenting opinion, arguing that the regional director's letter did, in fact, reflect an administrative finding rather than a mere recitation of charges. Prouty contended that the employer had directly solicited employee support for the petition by polling workers at a mandatory meeting and directing them to sign decertification materials. In his view, this conduct fell squarely within the TruServ exception for petitions tainted by direct employer solicitation, meaning the dismissal should have been upheld regardless of the parallel settlement.[1]

The ruling restricts a tactical maneuver where unions and employers could theoretically use unproven unfair labor practice charges and subsequent no-fault settlements to block worker-led decertification efforts. By mandating that regional directors conduct an independent investigation and articulate specific findings of taint, the NLRB has raised the evidentiary bar required to discard employee ballots. The immediate consequence is that the impounded ballots from the July 2024 election at the McDowell County Commission on Aging will finally be opened and counted, determining whether SEIU District 1199 retains its representation status.[1][2]