Employment Law Daily 3-1 NLRB finds ‘last in time’ rule unworkable to determine continued union support, adopts new framework to apply retroactively
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Wednesday, July 10, 2019

3-1 NLRB finds ‘last in time’ rule unworkable to determine continued union support, adopts new framework to apply retroactively

By Ronald Miller, J.D.

Finding the “last in time” rule unworkable as a way to settle disputes over a union’s post-contract majority status in the context of anticipatory withdrawal of recognition, the NLRB adopts a new framework calling for a Board-conducted, secret-ballot election to determine employees’ preference.

In a divided four-member opinion, the NLRB created a new mechanism to settle questions concerning employees’ preference in the anticipatory withdrawal context through a Board-conducted, secret-ballot election. In so doing, the Board overruled precedent established in Levitz Furniture Co. of the Pacific and its progeny insofar as they permit an incumbent union to defeat an employer’s withdrawal of recognition in an unfair labor practice proceeding with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal. In this dispute, which involved a disaffection petition showing a union had lost majority support, the Board concluded that at the time an employer withdrew recognition the union had actually lost majority support, so the union’s complaint was dismissed. The Board will apply its new holding retroactively in this case and in other pending cases. Member McFerran dissented (Johnson Controls, Inc., July 3, 2019).

Disaffection petition. The employer is an automobile parts manufacturer. Since August 2010, its production and maintenance employees have been represented by a union, with the most recent collective bargaining agreement effective through May 7, 2015. Negotiations for a successor agreement began on April 20. However, on April 21, the employer notified the union that it had received a union-disaffection petition circulated by two employees. The petition was signed by 83 of the 160 bargaining unit employees. Later that same day, the employer notified the union that it would no longer recognize the union as the employees’ bargaining representative when the CBA expired. It also cancelled previously scheduled bargaining sessions.

In response, the union stated that it had not received the petition or any verifiable evidence that it no longer enjoyed majority support, and demanded that the employer return to the bargaining table. The employer refused to provide the petition or to continue bargaining. Thereafter, the union began soliciting authorization cards from unit employees. It collected 69 signatures, six of which were from employees who had also signed the disaffection petition (dual signers).

Withdrawal of recognition. On May 5, the employer informed the union that it had not received any evidence that the union continued to enjoy majority support, and that it would withdraw recognition upon expiration of the CBA. The following day, the union advised the employer that it had credible evidence that it retained majority support and would be happy to meet to compare evidence. The employer declined to meet.

On May 8, the employer withdrew recognition. Immediately thereafter, it announced improved terms and conditions of employment, including a three-percent wage increase and a match of employees’ 401(k) retirement contributions. On August 28, an employee filed a petition for a decertification election. That petition was blocked by an unfair labor practice charge filed by the union.

Dismissal of complaint. At the unfair labor practice hearing, four of the six dual signers testified that on May 8—the day the employer withdrew recognition—they did not want the union to represent them. Based on the disaffection petition and the testimony of the four dual signers, an administrative law judge concluded that at the time the employer withdrew recognition, the union had actually lost majority support. As a consequence, the ALJ found the withdrawal of recognition lawful and dismissed the complaint.

Here, the Board was faced with determining whether the employer had demonstrated that the union lost its majority status as of May 8, the date it withdrew recognition.

Dual signers. The Board considered how best to determine the wishes of employees concerning representation where the employer had evidence that at least 50 percent of unit employees no longer desire to be represented by the union, and the union has evidence that it reacquired majority status. In these situations, as in this case, some unit employees are dual signers.

Under current law, all six dual signers would be counted as supporting the union because they signed union authorization cards after having signed the disaffection petition. The signatures on the disaffection petition would be disregarded. However, the Board concluded that the existing framework does not effectively serve to balance the statutory goal of promoting labor relations stability against its statutory responsibility to give effect to employees’ wishes concerning representation. It determined that there is a better way to resolve anticipatory withdrawal cases.

New framework. Under the Board’s new framework, proof of an incumbent union’s actual loss of majority support, if received by an employer within 90 days prior to contract expiration, conclusively rebuts the union’s presumptive continuing majority status when the contract expires. However, the union may attempt to reestablish that status by filing a petition for a Board election within 45 days from the date the employer gives notice of an anticipatory withdrawal of recognition.

The Board will apply its new holding retroactively in this case and in other pending cases.

Election petition or 8(a)(5) charge? Turning to the current case, the Board acknowledged that the union would not have been aware that it had to file an election petition in order to reestablish its status as bargaining representative. However, under preexisting law, the union had the right to do so in response to the employer’s withdrawal of recognition. Filing an 8(a)(5) charge was not the only option available, the Board observed. Moreover, the union had an incentive to file a petition instead of, or in addition to, an 8(a)(5) charge: an election win would mean a full year of bargaining insulated from a challenge to its majority status. Even now, the union can still file a petition.

Here, the Board concluded that because a majority of unit employees no longer wished to be represented by the union at the time the employer withdrew recognition, it acted lawfully. Although the union had solicited authorization cards from 69 bargaining-unit employees, six of whom were dual signers, the Board declined to consider this evidence for the purpose of determining whether the employer’s withdrawal of recognition was lawful. The Board also did not consider the dual signers’ testimony about their true sentiments concerning representation on the date recognition was withdrawn, or testimony concerning other employees who did not sign the disaffection petition.

Dissent. The Board now permits an employer unilaterally to withdraw recognition from an incumbent union in the face of objective evidence that the union has not lost majority support among the employees that it represents, Member McFerran pointed out in dissent. To regain its representative status, the union is required to petition for and win an election. This result reversed precedent without being asked and without briefing by the parties, she noted.

Further, she added, the Board’s decision violates two foundational principles: first, that a recognized union is entitled to a continuing presumption of majority support; and second, “that elections are the best way to resolve questions of representation.”

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