By: Ashley K. Laken, Esq.
On Monday, the NLRB held in a 3-0 decision that an employer unlawfully withdrew recognition from a union and that an affirmative bargaining order was warranted as a remedy. Pacific Coast Supply, LLC, 360 NLRB No. 67. Although the decision does not create any new law, it serves as a poignant reminder of the potential perils associated with unilaterally withdrawing recognition from a union, even if it appears that a majority of the bargaining unit no longer wants to be represented by the union for purposes of collective bargaining.
The Underlying Facts
The union and the employer had maintained an ongoing collective bargaining relationship since the 1960s, and the most recent collective bargaining agreement between the parties expired on February 28, 2012. The parties held their first negotiating session for a successor agreement on March 27, 2012, and their next session was scheduled for July 30, 2012. On July 20, 2012, however, the employer withdrew recognition from the union.
Under current Board precedent, an employer may lawfully withdraw recognition after the expiration of a collective bargaining agreement only if it can demonstrate that the union has actually lost the support of a majority of the bargaining unit employees. The employer’s withdrawal of recognition was based on the following statements signed by 8 of the 15 employees in the bargaining unit:
- “I resign from [the Union].”
- “I . . . do not wish to be a Union member.”
- “I . . . would like to exit the union. This is due to the union not doing any services for the cost that they are charging.”
- “I . . . wish to get out of the Union.”
- “I . . . do not wish to be a part of the Union now or in the future.”
- “I . . . do not wish to be part of the union.”
- “I no longer wish to be a part of [the Union].”
- “I do not wish to be part of the Union.”
There was no claim that supervisory involvement had tainted these statements, nor were any contemporaneous, unremedied unfair labor practices alleged.
Basis for the Finding that the Withdrawal of Recognition was Unlawful
In finding that the withdrawal of recognition was unlawful, the Board analyzed only the first four of the above eight employee statements. The Board found that the statements did not reflect that those employees no longer wanted to be represented by the union. The Board reasoned that statements of a desire to terminate union membership do not support a withdrawal of recognition, as termination of membership means only that an employee does not wish to pay union dues, not that the employee no longer wants the union to represent employees.
The Board also found irrelevant the fact that after recognition was withdrawn, the eight employees stated that what they meant in their statements was that they did not want to be represented by the union for purposes of collective bargaining. The Board reasoned that what matters is the objective evidence of loss of majority status that exists at the time of the withdrawal of recognition, not evidence that exists later.
The Board’s Rationale for an Affirmative Bargaining Order
The Board observed that in determining whether an affirmative bargaining order is warranted, it must weigh (1) the employees’ Section 7 rights, (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives, and (3) whether alternative remedies are adequate to remedy the violations of the Act.
The Board found that an affirmative bargaining order would not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the bargaining order was no longer than was reasonably necessary, that an affirmative bargaining order served the policies of the Act by removing the employer’s incentive to delay bargaining in the hope of further discouraging support for the union, and that a cease-and-desist order alone would be inadequate because it would permit another challenge to the union’s majority status before the taint of the employer’s unlawful withdrawal of recognition had dissipated. The Board therefore found that an affirmative bargaining order with its temporary decertification bar was warranted.
The Board also ordered the employer to, at the request of the union, adhere to any or all of the terms and conditions set out in the expired collective bargaining agreement, and to also make unit employees whole, with interest, for any loss of earnings and other benefits they may have suffered because of the employer’s repudiation of the collective bargaining relationship.
The decision highlights some of the risks associated with unilaterally withdrawing recognition from an incumbent union. Oftentimes, statements from employees that appear to provide support for an argument that a majority of employees no longer want to be represented by the union will be ambiguous at best. In such cases, employers may want to consider obtaining clarification from the employees (but not without the employees first signing acknowledgments regarding their Johnnie’s Poultry rights) before withdrawing recognition. Alternatively, employers might consider filing a petition for an election to determine whether there really is continuing majority support for the union. In any case, employers would be wise to consult with labor counsel when considering withdrawing recognition from an incumbent union.