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Anticipatory withdrawal of recognition didn't work
August 28, 2006 by Ross Runkel at LawMemo
Q: At what point in time do you look to see whether an incumbent union has lost its majority support, so the employer can withdraw recognition?
A: When the current collective bargaining agreement expires.
Levitz Furniture, 333 NLRB 717 (2001) allows an employer to withdraw recognition of a union only if it can prove that the union had, in fact, lost majority support.
But what if the tide keeps shifting?
In Parkwood Development Center, NLRB (08/22/2006), the employer-union contract was set to expire on March 8. During the previous December the employer received a petition from a majority of employees saying they no longer wished to be represented by the union.
So, in December, the employer told the union that it would honor the existing contract but would not negotiate for a successor agreement.
Later, the union gathered signatures on a petition and also gathered authorization cards that indicated that the union had majority support. The union gave these to the employer on March 7 - the day before the contract expired.
The employer followed through on its statement that it would not negotiate.
The NLRB said the employer committed an unfair labor practice. The key date was March 8, when the contract expired. On that date, all the employer had was conflicting evidence.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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