NLRB Gives Employers More Freedom to Remove Unions at End of Contract
Employers who have evidence that a majority of their workers no longer support their union now have greater leeway to suspend bargaining and withdraw recognition of the union after a collective bargaining agreement (“CBA”) expires, under a recent National Labor Relations Board (“NLRB”) decision.FN1 Under the NLRB’s “anticipatory withdrawal” framework, an employer with evidence that a union representing its employees no longer enjoys majority support may notify the union the employer is withdrawing recognition from the union once the CBA expires, and can suspend bargaining or refuse to bargain for a later contract.FN2 Previously, giving anticipatory withdrawal was fraught with risk because the union could show that it had majority support based on new evidence of union support gathered after the notice of withdrawal. That is, an employer could properly withdraw recognition based on lack of majority support but still be in violation of the National Labor Relations Act if the union later gathered enough signatures to show support.
In the Johnson Controls decision, decided last week, a majority of the NLRB rejected this framework and required unions to file an election petition to re-establish majority support. Under the new standard:
Within 90 days before a CBA expires, an employer with evidence that the union has lost majority support can notify the union that it withdraws recognition and can suspend bargaining or refuse to bargain. As always, the employer must comply with the existing CBA before it expires.
Within 45 days after the employer gives notice, the union may file a petition for an NLRB secret-ballot election to re-establish majority status.
If the union does not file an election petition after receiving notice of withdrawal, the employer may withdraw recognition and make unilateral changes to the terms and conditions of employment after the CBA expires.
The new standard makes it easier for employees to oust a union that no longer has majority support, and will minimize union “gotcha” tactics (such as pressuring employees to sign authorizing cards) when employers have lawfully given notice of withdrawal. However, nothing in the decision changes the long-standing rule that employers may not solicit employees to withdraw their support from an existing union. Additionally, employers must be cautious in making unilateral changes to terms and conditions in employment after a CBA expires even if they have lawfully withdrawn recognition.FN3
FN1 - Johnson Controls, Inc., 368 NLRB No. 20 (2019); https://www.nlrb.gov/case/10-CA-151843.
FN2 – See Levitz v. Furniture Co. of the Pacific, 333 NLRB 717 (2001); Johnson Controls, 368 NLRB No. 20 (slip op. at 1.)
FN3 – Until there is absolute certainty the union lacks majority support (i.e., through an NLRB election that has not been challenged or when a union decides not to file an election petition), the employer makes unilateral changes “at its peril,” and making such changes may constitute an unfair labor practice charge. Employers are encouraged to consult with a labor attorney when considering how to proceed in withdrawal-of-recognition matters.