NLRB Ruling Eases Way for Employers to End Union Recognition

Author: Robert S. Teachout, XpertHR Legal Editor

July 11, 2019

A new National Labor Relations Board (NLRB) ruling makes it easier for employers to withdraw recognition of the union representing its employees when its contract is close to expiring. The Johnson Controls, Inc. ruling clarifies the law concerning "anticipatory" withdrawals of union recognition and lays out a new framework for determining whether a union retains majority support at the end of a collective bargaining agreement.

Under Johnson Controls, an employer can announce its "anticipatory" withdrawal of recognition within 90 days of a collective bargaining agreement's expiration if it has evidence (such as employee signatures on a disaffection petition) that a union no longer has the majority support of represented employees. When the CBA expires, the employer can suspend bargaining for a successor contract.  In order to overcome the withdrawal of recognition, a union must then petition for a new NLRB secret ballot election within 45 days to prove it still has majority status.

The Johnson Controls ruling overturns longstanding precedent under which an employer risked a successful unfair labor practice charge for refusing to bargain if the union showed evidence that it had reacquired majority support - through signed union authorization cards, for example - at the time the employer actually withdrew its recognition. The remedy for a refusal-to-bargain unfair labor practice claim typically includes an affirmative bargaining order and bars any challenge to the union's majority status for a reasonable period of time, usually six months to a year. In addition, employers might make unilateral changes that would then have to be reversed.

The NLRB concluded in Johnson Controls that the previous framework failed to properly safeguard employee free choice by requiring employees to testify at unfair labor practice proceedings and failed to promote labor relations stability. It stated that the new framework is fairer and better protects employees' organizing rights by "creating a new opportunity to determine employees' wishes concerning representation through the preferred means of a secret ballot, Board-conducted election."

Unions may still file an unfair labor practice alleging flaws with a union disaffection petition, including claims that:

  • The employer initiated or unlawfully assisted the petition;
  • The petition was not sufficiently clear; or
  • It was tainted by other employer unfair labor practices.