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NLRB Issues New Standard For Withdrawing Union Recognition

Volume: 18 | Issue: 15
August 1, 2019

The National Labor Relations Board (NLRB or Board) recently relaxed the rules applicable to an employer’s "anticipatory withdrawal" of union recognition. This decision in Johnson Controls, Inc. is good news for employers who have objective evidence that at least 50 percent of its bargaining unit employees no longer wish to be represented by their union.

"Anticipatory withdrawal" refers to an employer’s right to give a union notice that it will withdraw recognition from the union when the CBA expires if it receives evidence that the union representing its employees no longer enjoys majority support. If such evidence exists, the employer may also suspend bargaining or refuse to bargain for a successor contract. Since the Board’s decision in Levitz Furniture Co. of the Pacific (2001) and cases following it, however, engaging in an anticipatory withdrawal was fraught with difficulties because of the framework the Board used to analyze the employer’s actions. The new standard adopted by the Board in Johnson Controls relaxes this framework and eliminates some of these challenges.

Under the new Johnson Controls standard, an employer may announce its anticipatory withdrawal no more than 90 days before the CBA expires. If the union wishes to reestablish its majority status, it must now file an election petition within 45 days of the employer’s announcement. The election is to determine whether a majority of unit employees wish the union to continue to represent them after the contract expires. The employer may lawfully withdraw recognition when the CBA expires whether or not the union seeks an election.

The union can still file unfair labor practice charges against an employer who has announced an anticipatory withdrawal. The union can allege that the employer initiated the union-disaffection petition or unlawfully assisted it, that the petition fails to make the employees’ representational wishes sufficiently clear, that the petition is tainted by serious unremedied unfair labor practices, or that the number of valid signatures on the disaffection petition fails to establish loss of majority status. However, in analyzing such charges, the Board will no longer consider whether the union has reacquired majority status as of the time recognition was actually withdrawn. The only way for the union to reestablish majority support is via an election.

The Board correctly explains that its "new framework . . . is fairer, promotes greater labor relations stability, and better protects [employees’] Section 7 rights" to refrain from collective bargaining. Despite this favorable decision, anticipatory withdrawal remains a very complicated area of labor law. An employer must be extremely careful to ensure its disaffection evidence is objective and untainted. Moreover, making unilateral changes to terms and conditions of employment following a withdrawal remains a sticky area, and the involvement or presence of other unions will further complicate the analysis. If you suspect you may be entitled to withdraw recognition from a union, please contact a KZA attorney to discuss this area of the law in more detail.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.