The National Labor Relations Board (“NLRB” or “Board”) recently overruled previous decisions and adopted a new framework utilizing a secret-ballot election to determine whether a union has lost the majority support of employees. See Johnson Controls, Inc. (July 3, 2019). The new standard addresses issues that arose when an employer anticipatorily withdrew recognition of a union that lost majority support, but the union subsequently claimed it reacquired majority status before the employer actually withdrew.
Old Rule
If, within a reasonable time before a collective bargaining agreement (“CBA”) expires, an employer receives evidence that at least 50% of the bargaining unit no longer want to be represented by their union, the employer may give notice that it will withdraw recognition from the union when the CBA expires and may also refuse to bargain for a successor contract. This is known as anticipatory withdrawal.
Under the prior rule, if an employer withdrew recognition of the union after the CBA expired and the union challenged the withdrawal, the employer violated the National Labor Relations Act (“NLRA”) if it did not establish that the union lacked majority status at the time the recognition was actually withdrawn (rather than at the time the employer gave notice of the anticipatory withdrawal). This rule, however, led to employers, often unknowingly, violating the NLRA if the union reacquired majority status between the time of the anticipatory withdrawal and the actual withdrawal. It also led to “dual signers” where some employees signed both an anti-union petition and a pro-union counter-petition – whether because they changed their minds or they were confused. In order to resolve this and other issues with the old rule, the Board overruled prior decisions that allowed a union to defeat an employers’ withdrawal of recognition with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal.
New Rule
Under the new framework, if, within 90 days before a CBA expires, an employer receives evidence that the union lacks majority status, it can anticipatorily withdraw. The Board will no longer consider whether a union has reacquired majority status as of the time recognition was actually withdrawn.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 45 days from the date the employer announces its anticipatory withdrawal. The Board will then conduct a secret-ballot election to determine whether the union has reacquired majority status.
The Board decided this new standard should be retroactively applied to this case and any other pending cases.
Takeaway
This new framework provides more clarity and makes it less risky for employers to anticipatorily withdraw as long as they have evidence the union no longer enjoys majority support within 90 days prior to expiration of the CBA.