On July 3, 2019, the National Labor Relations Board (NLRB) issued a decision that overruled previous Board precedent used in determining whether a union has majority support of the bargaining unit, where an employer is provided evidence to the contrary near the expiration of the parties’ collective barging agreement.
In the Johnson Controls decision, the Board made significant changes to the process used where a majority of employees demonstrate they no longer wish to be represented by a union. The decision has also eased potential consequences for employers who anticipatory withdraw recognition of the union. Under this new framework, if a majority of employees demonstrate they no longer wish to be represented by a union an employer can anticipatorily withdraw recognition 90 days before the CBA expires. The union’s recourse to reestablish majority support is through a Board-conducted, secret-ballot election, which requires the union to file a petition for the election 45 days from the date an employer gives its notice anticipatory withdrawal.
This decision overruled the prior standard set in the Levitz decision, which allowed a union’s evidence that it re-acquired majority support between the “anticipatory” withdrawal of recognition and “actual” withdrawal to control by applying the “last in time” rule. Under this rule, the union’s evidence of a majority would control because it would postdate the employer’s evidence of the loss of majority. Essentially, an employer who anticipatorily withdrew recognition would open itself up to a barrage of unfair labor practice charges aimed at the remedy of a Board imposed affirmative bargaining order.
Under the new standard, the union may still potentially file an unfair labor practice charge alleging an employer initiated the union-disaffection petition or unlawfully assisted it, that the disaffection petition fails to make the employees’ representational wishes clear, that the petition is tainted by serious unresolved labor practices, or that the number of valid signatures fails to establish a loss of majority. However, and most notably, the Board will require the union to file an election petition for the Board to conduct a secret ballot election in order for the union to re-establish a majority.
If you have questions concerning the Boards recent decision, please feel free to contact one of our labor attorneys by calling (501) 371-9999.