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NLRB Law Memo 07/12/2019
LawMemo - First in Employment Law

NLRB Staff summarized the following decisions:

Johnson Controls, Inc.  (10-CA-151843; 368 NLRB No. 20)  Florence, SC, July 3, 2019.

A Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) by withdrawing recognition and dismissed the complaint.  Further, the majority modified the Board’s anticipatory withdrawal doctrine under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), in two respects.  First, the “reasonable period of time” prior to contract expiration within which recognition may be anticipatorily withdrawn is now defined as no more than 90 days before the parties’ contract expires.  Second, once an employer announces that it is withdrawing recognition anticipatorily, the incumbent union may file, within 45 days from the date of that announcement, an election petition (and a rival union may intervene in that representation case based on a sufficient showing of interest).  If such a petition is timely filed, the incumbent union’s (or rival union’s) representative status following contract expiration will be determined through a Board-conducted secret-ballot election.  If no such petition is timely filed, the employer may rely on the disaffection evidence to affect withdrawal.  That evidence—assuming it establishes actual loss of majority status—will be dispositive of the union’s lack of majority status at the time of actual withdrawal; and the withdrawal of recognition will be lawful assuming no other grounds exist to find it unlawful.  Thus, the majority overruled Levitz Furniture, and its progeny, insofar as an incumbent union could previously defeat an employer’s withdrawal of recognition in an unfair labor practice proceeding with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal.

The majority’s new framework resolves questions concerning representational preference without reliance on “dual signers” signatures.  Under prior precedent, and the Board’s “last in time” rule, a union could show reacquired majority status, notwithstanding prior disaffection evidence showing that it had lost that status, upon reliance on “dual signers” signatures.  Such employees sign both an anti-union petition and, subsequently, a union authorization card or pro-union counter-petition, and the Board relied on the later signed card to find that the union had reacquired majority status.  Thus, an employee’s disaffection signature was automatically invalidated by his or her subsequent reauthorization signature.  Parties sometimes sought to ascertain dual signers’ representational wishes by asking them, at unfair labor practice hearings, what their sentiments were on the date recognition was withdrawn.  Here, the judge allowed such questions and relied on the testimony of four dual signers to find actual loss of majority status notwithstanding the Union’s documentary evidence to the contrary.  The majority refused to endorse this practice and instead held that a Board-conducted secret ballot election was the preferred means for resolving this question concerning representation.  In affirming the judge’s dismissal of the complaint, the majority did not consider dual signers’ testimony about their true sentiments concerning representation on the date recognition was withdrawn, or testimony concerning the sentiments of other employees who did not sign the disaffection petition.

Dissenting, Member McFerran would find that the Respondent violated Section 8(a)(5) by withdrawing recognition where it failed to carry its Levitz burden to prove that, at the time it withdrew recognition, the Union had lost majority support, and would not have overruled the Board’s anticipatory withdrawal precedent.  To the extent that she would consider modifying Levitz, she would prohibit employers from unilaterally withdrawing recognition and instead require them to seek Board elections whenever they are otherwise free to challenge the union’s majority status.

Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its affiliated Local Union No. 3066.  Administrative Law Judge Keltner W. Locke issued his decision on February 16, 2016.  Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.

Michigan Laborers District Council, an affiliate of The Laborers’ International Union of North America, AFL-CIO (Ram Construction Services of Michigan, Inc.)  (07-CD-221111; 368 NLRB No. 18)  Detroit, MI, July 3, 2019.

In this Section 10(k) jurisdictional dispute, the Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) awarded the work in dispute to employees represented by Michigan Laborers District Council, an affiliate of the Laborers’ International Union of North America, AFL-CIO, based on the factors of employer preference and past practice and economy and efficiency of operations.  Dissenting, Member McFerran argued that the Board should have quashed the notice of hearing because all parties, including the Employer, were bound to a voluntary method for adjustment of the dispute.

Charge filed by Ram Construction Services of Michigan, Inc.  Chairman Ring and Members McFerran and Kaplan participated.



Editor: Ross Runkel, Ross@LawMemo.com. Copyright 2019 by LawMemo, Inc., PO Box 9182, Portland, OR 97207, (503) 227-1500. We are sending NLRB Law Memo approximately once a week. To unsubscribe, reply to this email with the word "REMOVE" in the subject line.



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