NLRB Creates New Framework for Employers to Anticipatorily Withdraw Union Recognition
On July 3, 2019, the National Labor Relations Board (“NLRB”) in Johnson Controls, Inc. created a new framework for employers to withdraw union recognition before the expiration of a collective bargaining agreement (“CBA”). If, within 90 days of CBA expiration, an employer receives objective evidence that at least 50 percent of represented employees no longer wish to be represented by the incumbent union, a conclusive presumption arises that the union no longer has majority status, and the employer may give the union notice of the employer’s anticipatory withdrawal of union recognition. The incumbent union then may, within 45 days of receipt of the notice of anticipatory withdrawal, file a petition for an election to determine majority status. If the union does not file the petition within the 45-day window, the employer may safely conclude the union has lost majority status. If, however, the union does file a timely petition, a secret-ballot election must be held to determine whether the union has reestablished majority status.
It is important to note that employers must still comply with the existing CBA until it actually expires. Additionally, employers should be aware that unilateral action following a lawful withdrawal of union recognition may still entail substantial risk depending on the situation.
If you have any questions regarding this decision or its impact, please contact your Labor and Employment Counsel at Smith, Gambrell & Russell, LLP.
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