NLRB Eases Employer Ability to Withdraw Recognition of Unions
August 2, 2019
On July 3, 2019 the National Labor Relations Board issued its decision in Johnson Controls, 368 NLRB No. 20, in which it made it easier for private sector employers to withdraw recognition of unions with which they have a collective bargaining relationship. Under the newly-announced standard, an employer may announce such an anticipatory, unilateral withdrawal of recognition of a union within a period starting ninety days before the expiration of a collective bargaining agreement between the employer and the union. In order to do so, the employer must have evidence that the union has lost the support of a majority of the employees it represents.
Under the new standard, unions maintain the ability to file charges of unfair labor practice(s) against the employer. However, even if a charge is filed, the union no longer has the opportunity to provide evidence that it has reacquired majority support prior to the CBA expiring in order to prevent the employer from withdrawing recognition and the Board will not consider this evidence during the adjudication of the ULP charge. Instead, if the union wishes to reestablish majority support, it must file an election petition within forty five days of the employer’s announcement of withdrawal. Only if the union wins that election does the employer have to again recognize the union as the exclusive bargaining representative of those employees. Note though, that if the union files an election petition, any rival union can intervene in that case if it makes a sufficient showing of interest, so the union may have to compete for majority support not only with the employer, but with a rival union as well. Additionally, the Board did not affect the long-standing ability of rival unions to file a representation petition within the thirty day open period prior to a contract expiring or any time after the contract has expired.
Even if the union files an election petition, the employer can proceed to withdraw recognition once the CBA between the parties expires and at that time the union’s presumption of majority status will cease to be recognized. If the union fails to file an election petition, the employer’s withdrawal will become effective and its evidence of the union’s loss of majority support will be treated as dispositive.
This change constitutes a continuation of the Board’s recent trend toward adopting pro-employer decisions. In adopting its new standard, the Board reversed precedent granting unions not only with the presumption of majority support, but also with the opportunity to make a showing of regained majority support prior to a withdrawal being permitted. The new standard will make it easier for employers to withdraw their recognition of unions and harder for unions to reestablish majority support once it has been lost.
In response to this ruling, private sector unions should emphasize organizing efforts in the final year of collective bargaining agreements in order to ensure majority support by the time the employer’s withdrawal window opens. If this is done effectively, employers should not be able to obtain the evidence they need in order to effectuate the withdrawal.