Nlra Case Notes

• Citation: Vol. 33 No. 5
• Publication year: 2019
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

Board Overrules Levitz Furniture and Creates New Anticipatory-Withdrawal-of-Recognition Framework

Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019)

In a 3-1 decision, a Board majority overruled Levitz Furniture Co. of the Pacific¹ and its progeny, which held that an employer, upon receiving proof of an incumbent union's actual loss of majority support, is permitted to notify the union that it will withdraw recognition upon CBA expiration ("anticipatory withdrawal"), but the employer does so "at its peril" because if it fails to prove loss of majority support for the union at the time of actual withdrawal, the Board finds the withdrawal of recognition to be unlawful. As a less risky alternative to unilateral withdrawal, Levitz permitted employers to seek a Board election to test the union's majority status, where the union would nonetheless be protected by a continuing presumption of majority support unless it lost the election. In Johnson Controls, the Board majority ruled that existing precedent did not properly safeguard employee free choice or effectively promote labor relations stability and announced a new "risk-free" standard benefiting employers in anticipatory withdrawal cases.

In 2010, the union was certified as the exclusive representative following a Board election. The CBA between the union and employer expired on May 7, 2015. A few weeks before contract expiration, the employer received a petition signed by 83 of 160 employees stating the employees no longer desired union representation. The employer immediately notified the union that it would withdraw recognition as soon as the CBA expired. Following this anticipatory withdrawal, the union gathered authorization cards from 69 employees between April 27 and May 7, 2015 and offered to exchange its proof of support with the employer in an effort to prevent the employer's actual withdrawal of recognition following contract expiration. The employer declined the union's offer. Six of the employees who had signed the earlier union disaffection petition upon which the employer relied later signed cards authorizing the union to represent them. Under settled Board precedent at that time, these six "dual" signers could not be relied upon by the employer to show actual loss of majority support for the union, and because only 77 (83 minus six) of 160 employees could be counted on the union disaffection petition, the employer's withdrawal of recognition would have been unlawful under NLRA § 8(a)(5).

But in Johnson Controls, the Board majority found the employer's actions were lawful. To reach its conclusion, the majority overturned Levitz and several other Board cases spanning the last two decades and devised a new standard for anticipatory-withdrawal cases: if an employer receives evidence of an incumbent union's loss of majority support within 90 days prior to contract expiration, that evidence conclusively rebuts the union's presumptive continuing majority status following contract expiration, and the employer may withdraw recognition without risk of § 8(a)(5) liability. The burden then shifts to the union to reestablish majority support by petitioning for a Board election within 45 days from the notice of anticipatory withdrawal. The union may still challenge the anticipatory withdrawal through the unfair labor practice process on other grounds, such as if the employer unlawfully assisted the union-disaffection petition or based its withdrawal on invalid signatures. But the Board majority made clear that the Board will no longer consider the union's rebuttal evidence reaffirming majority support gathered after anticipatory withdrawal but before actual withdrawal of recognition. The Board majority applied its new holding retroactively even though the employer would have faced § 8(a) (5) liability under the law in effect at the time it withdrew recognition. Finally, the Board majority also engaged in a complicated analysis regarding whether an employer may or should make unilateral changes to working conditions following a withdrawal of recognition, noting that in some situations, unilateral action could constitute objectionable conduct if made after the union's election petition is filed or after a challenged election where the union ultimately prevails.

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Dissenting, Member McFerran opined: "Disregarding...