The typical way a union gets into a workplace is through a secret ballot election. Yet, there is no typical way to get a union out of a workplace. Rather, employees can decertify the union through a secret ballot election or the employer can stop recognizing the union as representative of its employees – this is called withdrawing recognition of the union.
When an employer has objective evidence that a union has lost majority support, such as a petition signed by a majority of the employees in the bargaining unit, it may unilaterally withdraw recognition.
But, an employer may not rely on an employee petition when the employer’s unfair labor practices significantly contributed to the loss of majority status by undercutting the employees’ support of the union. So before withdrawing recognition, make sure no unremedied ULPs exist.
Every time I have been involved in helping companies withdraw recognition of a union, the union files an unfair labor practice charge alleging employer interference; and every time the employer has won. So before withdrawing recognition willy-nilly (a labor law term) make sure that a charge of employer interference will not stick. If it sticks, the union automatically gets back into the workplace.
The National Labor Relations Board has a four-factor test to determine whether unfair labor practices have caused employee disaffection with the union or at least had a meaningful impact in bringing about that disaffection. The Board’s four-factor test includes consideration of:
- The length of time between the unfair labor practice and the employee petition;
- The nature of the unfair labor practices, including whether they are of a nature that would cause a detrimental or lasting effect on the employees;
- The tendency of the unfair labor practices to cause employee disaffection with the union; and
- The effect of the unlawful conduct on the employee’s morale, organizational activities, and membership in the union.
Regarding the first factor, there is no bright line definition of what is a long enough time to separate the ULP from the withdrawal activity. For example:
- 8 – 15 days was not long enough
- 2 – 6 weeks before the petition for withdrawal was not long enough
- 3 months indicated long enough
- 5 months weighed in favor of being enough time
So it appears that somewhere between 2 ½ months and 3 months is the cut off – but each case is different, and each case should be analyzed on its own merits.
The second and third factors above go hand-in-hand because unfair labor practices that have a lasting effect on employees are likely to be serious enough to cause disaffection with a union. Since some violations of the National Labor Relations Act are less significant than others, it is important to know whether your company’s violations could jeopardize a lawful withdrawal of recognition.
The Board regularly holds that the following types of violations are serious because they have detrimental and lasting effects:
- Violations involving coercive conduct like discharge, withholding benefits, and threats to shutdown the company.
- Discharging three union adherents and suspending another were considered hallmark serious violations.
- Threatening employees with closure and job loss.
- Discharging active union supporters and unilaterally changing hours and vacation.
- Granting an unprecedented wage increase is a hallmark serious violation.
Whether the fourth factor is met depends largely on the nuances of each specific case, so broad rules of thumb are not available for a blog post like this.
Withdrawing recognition is, like declaring impasse, one of the most difficult parts of being a labor lawyer. Many of you will understand when I equate those parts of practicing labor law to the legal definition of pornography – you know it when you see it. I know when a union is ripe for withdrawal and I know when to declare impasse. Sure there are textbooks and blog posts like this one talking about elements needed to successful withdraw recognition, but you don’t fully comprehend when is and is not the correct time to withdraw recognition of a union until you live through the process many times over.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.