Employees who want to remove unions from their workplaces have limited options. One is to pursue the complicated process of petitioning the National Labor Relations Board (the “Board”) for a decertification election. Another is to present the employer with a petition signed by a majority of employees in the bargaining unit, demanding that the employer withdraw recognition from the union as the employees’ exclusive bargaining representative.
Under current law, an employer legally may withdraw recognition from a union at the end of the term of a collective bargaining agreement (CBA) (or three years, whichever is sooner) when the employer has objective evidence of the union’s lack of majority status. A petition signed by a majority of the employees in the bargaining unit clearly demanding that the employer withdraw recognition of the union as the employees’ collective bargaining agent can constitute such evidence. However, both the Board and the courts will review these petitions very carefully. Two recent 2008 cases provide both guidance and warnings to employers receiving petitions demanding withdrawal of recognition.
HQM Decision
In NLRB v. HQM of Bayside, LLC, 518 F.3d 256 (4th Cir. 2008), the Fourth Circuit upheld the Board’s conclusion that the employer violated Section 8(a)(1) and (5) of the National Labor Relations Act (refusal to bargain) when the employer withdrew recognition from the union. In this case, the employees presented the employer with a “disaffection petition” signed by a majority (34) of employees in the bargaining unit. Three days later, the employer notified the union that it believed (based on the petition) that the union no longer represented a majority of the employees in the bargaining unit. It also informed the union that it was going to withdraw recognition when the CBA expired. Before that occurred, the union notified the employer that it had a petition that was also signed by 34 employees. The union said that its petition stated that the employees wanted to keep the union. The union did not give a copy of the petition to the employer. The employer withdrew recognition when the CBA expired.
An Administrative Law Judge (ALJ) and the Board both concluded that the employer withdrew recognition of the union illegally. The ALJ and the Board concluded that “crossover” employees (that is, employees who signed the union petition after they signed the disaffection petition) could not be counted by the employer as supporters of withdrawing recognition.
The Fourth Circuit agreed with the Board. The Court observed that the lack of majority status must be determined at the time an employer can withdraw recognition legally. Since there is an irrebutable presumption of majority status during the term of a CBA, legal withdrawal of recognition can occur only when the agreement expires. Thus, it is appropriate to look at who supported withdrawal when the CBA expires and not when the employer received the first disaffection petition. The Fourth Circuit agreed that crossovers could not be counted. Since a majority of employees signed the union’s petition after the first petition, there was no objective evidence that a majority of the employees supported withdrawal of recognition at the time the CBA expired. It did not matter that the employer was not provided with a copy of the union’s petition.
Parkwood Decision
Similarly, the District of Columbia Circuit found that an employer violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from the union. In Parkwood Dev. Ctr., Inc. v. NLRB, 521 F.3d 404 (D.C. Cir. 2008), the employer received a petition signed by a majority of employees in the bargaining unit stating that they no longer wished to be represented by the union. The employer notified the union the same day that it would cease dealing with the union upon expiration of the CBA. Further, the employer told the union that it would not bargain for a successor agreement. On the day before the contract expired, the union presented the employer with a counter-petition signed by a majority of employees. This petition stated that employees wanted to continue union representation. The employer ignored the second petition and withdrew recognition when the CBA expired.
The ALJ concluded that the employer did not violate the Act. The Board disagreed and concluded that receipt of the petition from the employees indicating a continued desire to be represented prior to the expiration of the CBA prohibited a legal withdrawal of recognition upon expiration of the CBA.
The District of Columbia Circuit agreed with the Board. The Court stated that it was important to draw a distinction between an “anticipatory withdrawal” and complete withdrawal. The former occurs before the CBA expires and does not extinguish the existing obligations of the CBA before it expires. By contrast, withdrawal of recognition occurs after the CBA expires and frees the employer of contractual obligations.
The D.C. Circuit found it was legal to refuse to bargain for a successor agreement because the employer had objective evidence of lack of majority support for the union. When the new petition was presented indicating that the employees changed their minds before the CBA expired, the employer was no longer free to withdraw recognition upon expiration of the CBA.
Employer Take Aways
These cases should remind employers to be cautious and act prudently when employees seek to remove their unions so that employees’ right to do so can be protected from inadvertent interference. Remember:
- Employers cannot provide assistance to employees who seek to remove a union from their workplace.
- Employers cannot solicit petitions or signatures on petitions.
- Employers who receive petitions should check signatures against W-2 forms or similar documents to verify the authenticity of signatures.
- Employers should not ignore evidence that the union has regained majority status.
- The burden of proving loss of majority status rests on the employer; evidence about which the employer was not aware at the time it withdrew recognition can be used after the fact to show that the union maintained its majority status.
- Employers should fully understand the applicable law so that they do not inadvertently compromise or complicate the exercise of employees’ rights by taking actions that might give rise to unfair labor practice claims.
Withdrawing recognition of a union is a complicated process requiring careful navigation through a minefield of hidden legal issues. Employers should always proceed with caution and with counsel.
For assistance in addressing requests by employees to withdraw recognition of their unions, union decertification requests or any other labor issues, please contact any member of the McGuireWoods Labor & Employment or Employee Benefits teams.