Withdrawing Union Recognition? - Not So Fast!

Volume 13, Issue 6
May 14, 2014

After the expiration of a collective bargaining agreement, an employer may withdraw recognition of a union as the bargaining representative of its employees if it can demonstrate that the union has actually lost the support of a majority of the bargaining unit employees. While certain circumstances can make demonstrating such a loss of support appear easy, employers should be aware that it is harder than it seems.

Recently, in the case of Pacific Coast Supply, LLC, 360 NLRB No. 67 (Mar. 24, 2014), the National Labor Relations Board (NLRB) found that an employer unlawfully withdrew recognition from a union and imposed an affirmative bargaining order on the employer despite what appeared to be facts demonstrating that the union had lost the support of a majority of the bargaining unit employees. The employer in question withdrew recognition of the union based on the following written statements from eight of the fifteen bargaining unit employees after the expiration of the applicable collective bargaining agreement:

  1. "I resign from the [Union]."
  2. " not wish to be a Union member."
  3. "I...would like to exit the union. This is due to the union not doing any services for the cost that they are charging."
  4. "I...wish to get out of the Union."
  5. " not wish to be part of the Union now or in the future."
  6. " not wish to be part of the union."
  7. "I no longer wish to be a part of [the Union]."
  8. "I do not wish to be part of the Union."

Significantly, there was no evidence that the written statements were tainted by supervisory involvement or by contemporaneous unfair labor practice charges. Nevertheless, the NLRB held that the withdrawal of recognition was unlawful because the written employee statements did not actually reflect that the employees no longer wanted to be represented by the union. Instead, in analyzing the first four statements, the NLRB found the statements merely meant the employees did not wish to pay union dues and did not mean the employees did not want the union to represent them. Even though the employees subsequently clarified after the withdrawal of recognition that they meant their statements to indicate they did not want to be represented by the union in collective bargaining, the NLRB refused to consider the same because the "objective evidence" at the time of the withdrawal could not be so interpreted. The NLRB then imposed an affirmative bargaining order on the employer, with its accompanying temporary decertification bar, and ordered the employer to adhere to the terms of the expired collective bargaining agreement and make the bargaining unit employees whole, with interest, for any lost earnings and other benefits they may have lost due to the employer's withdrawal of recognition from the union.

Given the NLRB's findings, employers should be cautious when attempting to withdraw recognition from a union. Indeed, while some employee statements may, at first glance, appear to provide support for the employer's actions, such statements may in the end be considered ambiguous at best, thus undermining the employer's actions. Accordingly, employers should sufficiently consider employee (hopefully written) statements and how such statements may be interpreted before taking action to withdraw recognition from a union. Employers may also consider filing an petition for an election with the NLRB to definitively determine whether or not the union continues to enjoy majority support by the bargaining unit employees. Regardless of the employer's approach, labor counsel should be consulted.

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.