NLRB Clears Path for Employers to Withdraw Union Recognition

​The National Labor Relations Board (NLRB) this month made it easier for employers to stop bargaining for future labor contracts when they have evidence that a union no longer has workers' support.

Employers generally have to recognize a union for the duration of a collective bargaining agreement (CBA)—which can cover up to three years. So what happens if the employer has evidence that at least half of the workers in a unit no longer want to be represented by the union?

The employer can notify the union—within a reasonable time before the CBA expires—that it plans to withdraw its recognition of the union when the contract ends. This is called anticipatory withdrawal.

After announcing its intent to withdraw recognition, the employer can decline to bargain for a new CBA. But there used to be catch when employees changed their minds between the time of the anticipatory withdrawal and the actual withdrawal: Even if an employer had proof that the union had lost its majority support, it still risked violating the National Labor Relations Act (NLRA) if it failed to bargain for a new contract and the union regained its support by the time the employer officially withdrew its recognition.

"This placed the employer in a tenuous position because, unbeknownst to the employer, employees could sign a new petition in which a majority supports the union," noted Henry Warnock, an attorney with FordHarrison in Atlanta.

Now, under the NLRB's July 3 decision in Johnson Controls, the employer must notify the union of its anticipatory withdrawal within 90 days of the contract's expiration. Then it can officially withdraw when the contract ends. However, the union has 45 days from the time the employer gives notice of the anticipatory withdrawal to re-establish its majority status by filing a petition for a new election.

The NLRB "will process the petition without regard to whether the parties' contract is still in force at the time the petition is filed," according to the decision.

"Today, we adopt a new framework that is fairer, promotes greater labor relations stability, and better protects [employees'] rights," the board said.

The decision "provides a much clearer and cleaner process that also safeguards the wishes of employees through a secret-ballot board election, if necessary," Warnock said.

Employer Takeaways

A union is presumed to represent the majority of workers in a bargaining unit for up to a year after the NLRB certifies the union and for the term of a collective bargaining agreement (if one is reached), which can last up to three years.

The U.S. Supreme Court has said, "These presumptions are based not so much on an absolute certainty that the union's majority status will not erode as on the need to achieve stability in collective-bargaining relationships."

The NLRB explained that it is required to "balance the statutory goal of promoting labor-relations stability against its statutory responsibility to give effect to employees' wishes concerning representation."

[SHRM members-only HR Q&A: How can we prevent a union from organizing in our company?]

Employers should note that a union's majority status remains intact for the duration of the CBA. "The election, however, is to determine whether a majority of unit employees wish the union to continue to represent them after the contract expires," the board explained.

Employers that receive proof of an incumbent union's actual loss of majority support can withdraw recognition following the expiration of a CBA with much more confidence than before, Warnock said. Employers will know, with certainty, if a union has challenged this loss of support because the union must file a petition for an election. If the union fails to do so, the employer can implement changes without fearing an unfair labor practices charge for failure to bargain, he added.

The new decision gives employers a road map for lawfully withdrawing union recognition prior to CBA expiration, said Micah Dawson and Todd Fredrickson, attorneys with Fisher Phillips in Denver, in a joint statement.

They noted that employers must still rely on "objective evidence"—as opposed to a good-faith belief—that the union has actually lost majority support.

"Such evidence has traditionally derived from a proper disaffection petition—containing validated signatures and dates—from a majority of bargaining unit employees," Dawson and Fredrickson said, "although employee polls or other objective evidence may suffice in limited circumstances."

Employers still have a duty to bargain in good faith. So an unfair labor practice charge against the employer that is deemed to have caused the underlying employee disaffection will likely invalidate the withdrawal, Dawson and Fredrickson noted.