Recently, in Johnson Controls, Inc.1, the National Labor Relations Board (NLRB) announced a new framework for a little-used method for employers to make a lawful anticipatory withdrawal recognition of a union who has been representing its workforce.
Specifically, the decision forces a union seeking to demonstrate that it has reacquired majority status to do so in a secret ballot election conducted by the board, rather than in an unfair labor practice proceeding. For employers and those employees seeking to no longer be represented by a union, this provides clarity to a historically muddy process.
What is a Lawful Anticipatory Withdrawal of Recognition?
Withdrawal of recognition, generally, is when the employer informs a union that it no longer believes that the union has support from a majority of its members and, therefore, the employer no longer recognizes it as the bargaining representative.
This process is starkly different from a decertification election petition being filed with the NLRB. Additionally, an employer’s ability to voluntarily withdraw recognition during the term of a contract is severely limited.
Kevin Terry, Marquette 2011, is a senior associate with Michael Best & Friedrich in Milwaukee, where he focuses primarily on matters related to labor and employment, municipal issues, and education.
A line of cases do establish an option for employers who wish to notify the union prior to expiration of the contract that they will be withdrawing recognition. This is called anticipatory withdrawal of recognition. Under the anticipatory withdrawal line of cases, an employer faced with evidence that an incumbent union has lost majority support during the term of a collective bargaining agreement may lawfully refuse to negotiate a successor agreement and announce (during the life of the CBA) that it will not recognize the union after the contract expires, provided that it complies with the existing contract in the interim.
However, an employer’s withdrawal of recognition is as to – and only as to – negotiating a successor contract to the existing agreement. Such an employer may not completely withdraw recognition until the contract expires.
Up until the Johnson Controls decision, there was still significant risk involved in an employer’s decision to actually withdraw recognition upon the expiration of the contract, even if the employer had made a lawful anticipatory withdrawal of recognition based on evidence that at least 50% of the bargaining unit no longer wished to be represented by the union.
This is because under the old “last in time” rule, an incumbent union could defeat an employer’s withdrawal of recognition in an unfair labor practice proceeding with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal. Hence, the union’s evidence often controlled the outcome of the board’s determination simply because it postdated the employer’s evidence.
What are the Rules after Johnson Controls?
The new framework established in Johnson Controls is far more favorable to employers than the “last in time” rule, because it means that the board will no longer consider, in an unfair labor practice case, whether a union has reacquired majority status as of the time recognition was actually withdrawn. Instead, if the union wishes to re-establish its majority status, it must file an election petition within the requisite timeframe.
Additionally the new framework clearly establishes when it is a “reasonable time” prior to the expiration of the contract for an employer to consider exercising this option of anticipatory withdrawal. Proof of an incumbent union’s actual loss of majority support, if received by an employer within 90 days prior to contract expiration, conclusively rebuts the union’s presumptive continuing majority status.
The board will apply the new framework to all pending cases.
There are other issues which may impact an employer’s withdrawal of recognition under Johnson Controls, including risk in the timing and nature of any unilateral changes made in employees’ terms and conditions of employment, and the potential for the filing of rival union or employee election petitions and their impact on whether the employer may take advantage of a safe harbor if it withdraws recognition.
For these and other reasons, an employer contemplating such a withdrawal should consult with labor relations counsel to explore all aspects of the situation before taking any action.
1 368 NLRB No. 20 (July 3, 2019)