An employer is only allowed to bargain with a union that has proven it represents a majority of employees in an appropriate bargaining unit. Otherwise the company violates the law by recognizing a non-majority union. This rule on majority status is tricky. If a company thinks a union has lost its majority status it is between a rock and a hard place. If it bargains with a non-majority union it is committing an unfair labor practice. On the other hand if it refuses to bargain with a union that does represent a majority it is also committing an unfair labor practice.
Historically employers in this situation had to options. They could file an RM petition (essentially a decertification petition filed by management). Or they could withdraw recognition by informing the union that the employer will not longer follow the collective bargaining agreement or negotiate with the union due to the doubt about its majority status.
The NLRB General Counsel released a memo in May that essentially takes away withdrawal of recognition as an option. It states that an employer is not allowed to withdraw recognition unless there was a prior RD or RM election. After a union loses an RD or RM election the union no longer represents anyone, so withdrawal of recognition becomes moot. If adopted by the NLRB this will overturn the 2001 Levitz decision which followed the historic rule that companies could withdraw recognition without an election
Withdrawal of recognition should remain an option. Regardless if a union has lost an RD or RM election, the employer is still committing an unfair labor practice if it recognizes and bargains with a minority union. That is part of National Labor Relations Act. There has to be some process that allows a company to protect itself when it is in this no-man’s land between a bargaining obligation and an actual RD or RM result.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.