On July 3, 2019, the NLRB made it a little less risky for an employer to kick out an incumbent union when a majority of its employees no longer wish to be represented by the union. Under Levitz Furniture, an employer could (90 days prior to the expiration of the union contract) inform the union that it will withdraw recognition when the party’s labor contract expires, if the employer has evidence that a majority of its workers no longer supported the union. The employer could also suspend negotiations with the union over a new contract based on its evidence of a lack of majority support.
However, this “anticipatory withdrawal” tactic wasn’t free from risk. Under Levitz Furniture, a union could reacquire majority status before the contract expired by pressuring employees to sign representation cards. Often the same employees who signed a petition requesting to oust the union would later sign a representation card feeling face-to-face pressure or intimidation from the union and its supporters. The vast majority of the time, the employer who withdrew recognition based on an employee petition, would not even know the union had reacquired majority status through the signing of new representation cards. An employer could thus unintentionally violate the Act in its withdrawal, since the union’s evidence of majority support occurred “last in time,” the evidence was considered the final word of the employees.
This would lead to the filing of unfair labor practices by the union and years of litigation surrounding the circumstances of the employer’s withdrawal of recognition. If the Employer was found to have violated the Act, the remedy for the violation will typically include an order precluding any challenge to the union's majority status for 6 months to 1 year, or longer if a new contract is reached between the parties in the interim. In the meantime, the actual employees’ desire regarding whether or not they want the union are lost in the background.
In Johnson Controls, 368 NLRB No. 20 (July 3, 2019), the NLRB overruled Levitz Furniture and adopted a more logical and sensible approach to this dilemma. The NLRB held that its new framework is fairer, promotes greater labor relations stability, and better protects Section 7 employee rights by creating a new opportunity to determine employees' wishes concerning representation through the preferred means of an NLRB-conducted secret ballot election. In a secret ballot election, employees can vote privately without pressure or coercion from the union or employer whether or not they want a union. It is the purest means we have of determining a union’s majority status.
Under Johnson Controls, the NLRB held that 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 its majority 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. So long as the employer’s evidence of lack of majority status is good, and it was not obtained through illegal means, the peril the employer would have faced under Levitz Furniture is now replaced by a secret ballot election.
If your employees are questioning whether or not they want union representation, feel free to contact one of our labor and employment attorneys to discuss the situation further.