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NLRB Amends Process For Employers to Withdraw Union Recognition


On July 3rd, the National Labor Relations Board ("NLRB") issued a decision in Johnson Controls, Inc. which amended the test for determining the legality of an employer's withdrawal of union recognition prior to the expiration of a collective bargaining agreement ("CBA".)

Precedent had previously established that when an employer received evidence, within a reasonable period of time before the CBA expired that the union that represented the employees no longer had majority support, the employer could give notice that it would withdraw recognition of the union when the CBA expired and the employer could  suspend bargaining or refuse to bargain for a successor contract.  However, this was done at the employer's own peril.  If the union proceeded to produce evidence that a majority of employees had either changed their minds or otherwise wished to retain union representation, the employer could be subject to an unfair labor practice charge for refusing to bargain with the union.

In Johnson Controls, Inc., a 3 - 1 decision from the NLRB adopted a new standard that will apply to an employer's anticipatory withdrawal of union recognition.  Under this new test, an employer can lawfully withdraw recognition from an incumbent union and refuse to bargain with the union within  ninety days of the expiration of the CBA, once the employer has received evidence that the union has in fact lost majority support.  Now bear in mind that the union may still file an unfair labor practice charge, however the NLRB will no longer evaluate the merits of those charges by considering evidence that the union has reacquired majority status.  Rather, the union will be permitted to present evidence for a new representation election within forty five days from the date on which the employer first gave notice of the anticipatory withdrawal.

File this one under another victory for employers with an employer friendly NLRB.


For a copy of the NLRB decision:  https://apps.nlrb.gov/link/document.aspx/09031d4582c93aa6

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