With a new NLRB ruling on employer withdrawals of recognition, the International’s Legal Department is helping locals understand and navigate the policy.
Earlier in 2019, the NLRB ruled that a company may lawfully withdraw recognition of a union after its contract expires if the company receives evidence that a majority of workers no longer want the union to represent them.
The NLRB ruled that the company can withdraw recognition even if the union then provides the company with evidence showing that a majority of workers continue to support the union. Specifically, the NLRB ruled that a company can withdraw recognition if the company receives evidence that the union has lost majority support within 90 days before the contract expires.
If the union rebuts that evidence, the union may file a petition within 45 days for an election. As a result of the NLRB’s ruling, it is no longer an unfair labor practice for the company to withdraw recognition in the face of the union’s evidence. So, in this case, the NLRB empowered companies to require unions to win elections to continue to represent the workers.
Alternatively, before the contract expires, the union could file a grievance and demand expedited arbitration so an arbitrator can rule on whether the company will violate the contract if the company withdraws recognition. This is called an “anticipatory breach” of contract, that is, based on the company’s statements or actions, there is anticipation that the company plans to violate the contract in the future.
The NLRB emphasized that it would permit the company to withdraw recognition only if the company did not improperly influence or assist workers in compiling the evidence showing that the union lost majority support.
In the case the NLRB ruled on, a majority of workers signed a petition saying that they no longer wanted the union to represent them. Workers presented the petition to the company about two weeks before the contract expired. That same day, the company told the union that the company would withdraw recognition when the contract expired and cancelled all remaining bargaining sessions. The company then refused to meet with the union to discuss the union’s evidence showing that the union retained majority support.
At the NLRB hearing, the union proved that a majority of workers – including several who had also signed the petition — signed authorization cards. The NLRB ruled that this no longer made any difference. The decision is called Johnson Controls, 368 NLRB No. 20 (Jul. 3, 2019).
This is an important case for all locals to be aware of. If your local has any questions or needs more information about this rule, contact George Wiszynski in the Legal Department at firstname.lastname@example.org.
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