The National Labor Relations Board (NLRB) recently issued an opinion making it easier for employers to withdraw recognition of a union. The NLRB issued its opinion in Johnson Controls, NLRB, 10-CA-151843, on July 3, 2019, upholding the employer’s anticipatory withdrawal of recognition of a union that represented 160 of its workers.
Anticipatory withdraw is a statement by an employer — made within a “reasonable time” before a collective bargaining agreement (CBA) expires — stating its intent to withdraw recognition of a union upon expiration of the CBA. The employer can only announce such an intent when it has credible and uncoerced evidence that a majority of employees no longer desire union representation. Prior Johnson Controls, an employer could announce its anticipatory withdraw, present evidence of union disaffection, and actually withdraw recognition of the union, and a union could present evidence gathered after-the-fact demonstrating it still had majority support. Unions often did this by mounting “re-organizing” campaigns and having all union members sign new union authorization cards. The union would then present this as evidence that was more recent in time than the employers to demonstrate it had majority support. Such evidence was held to supersede the employer’s evidence and rendered the employer’s anticipatory withdrawal unlawful. This presented obvious issues with employers being held liable unfair labor practices even though their actions that were entirely lawful at the time and were only rendered unlawful by the union’s actions after-the-fact.
Johnson Controls sought to remedy this scenario. Under Johnson Controls, an employer must announce an anticipatory withdrawal no more than 90 days before a CBA expires. The union must then file an election petition within 45 days of the employer’s anticipatory withdrawal. If the union timely files an election petition, an election is held to determine whether the union maintains majority support. If, however, the union does not timely file a post-anticipatory withdrawal election petition, the employer may rely on its evidence and terminate its relationship with the union upon expiration of the CBA. Unions may still challenge an employer’s evidence of union disaffection by filing an unfair labor charge alleging that the employer unlawfully initiated or assisted in circulating a disaffection petition, that the petition does not make employees’ representation preference sufficiently clear, or that the petition was tainted by unfair labor practices. Johnson Controls did not change any standards with respect to how evidence of union disaffection is gathered.
The Johnson Controls opinion changes the previous procedure for anticipatory withdrawal of union recognition in three important ways: 1) it eliminates reacquired majority status as a basis for an unfair labor practice; 2) it defines the “reasonable time” within which an employer can announces its anticipatory withdrawal as no more than 90 days before a CBA expires; and 3) it establishes that a union must file an election petition within 45 days of an anticipatory withdrawal to re-establish its majority status. In reaching its opinion and overturning the prior anticipatory withdrawal procedures, the NLRB stated, “It ends the unsatisfactory process of attempting to resolve conflicting evidence of employees’ sentiments concerning representation in unfair labor practices . . . . Instead, such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”
Written by Attorney Allison C. Pearson at Friday, Eldredge & Clark, LLP. She is an associate in the Labor and Employment Practice Group.
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