October 08, 2019

NLRB Announces Change to Anticipatory Withdrawal Framework

On July 3, 2019, the National Labor Relations Board (NLRB) issued its decision on Johnson Controls, Inc., 368 NLRB No. 20 (2019) holding that if an employer receives notice that the union has lost majority support within 90 days of the expiration of the contract, it will rebut the presumption that the union has continuing support once the contract expires. A union can try to reestablish its majority status if it files a petition for a Board election within 45 days of the date the employer gives notice of an anticipatory withdrawal of recognition.

Under the established precedent of “anticipatory withdrawal,” an employer may give notice that it will withdraw recognition from the union if it receives objective evidence that the union representing its employees does not have majority support and gives notice within a reasonable period before its existing collective bargaining agreement expires. However, an employer will be found to have violated the National Labor Relations Act (NLRA) if the union challenges the withdrawal of recognition and the employer fails to show the union lacked majority support at the time the withdrawal took place. The problem then becomes “dual signers” – those who first signed an anti-union petition and later indicate their preference to join the union.

The new Johnson Controls standard modifies the “anticipatory withdrawal of recognition” in two ways. First, the 90-day period explicitly defines what “reasonable time” is. Second, if the union seeks to reestablish its majority status after an anticipatory withdrawal of representation, it must file an election petition within 45 days after the employer announces its anticipatory withdrawal, regardless of when the employer gave notice of it. If a union does not file the election petition, the employer can rely on the evidence it received and effectuate the withdrawal. The evidence it received of the union’s loss of majority status will be made dispositive. This new standard allows employers to withdraw recognition at the time the contract expires, even if there is a post-anticipatory withdrawal election petition filed. The employer can then withhold recognition until a union reestablishes its majority status.

The NLRB’s new framework solves the “dual signor” problem and creates more certainty (and less risk) if an employer engages in an anticipatory withdrawal.

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