Johnson Controls, Inc. v. Agricultural Implement Workers of America, AFL-CIO, 10-CA-151843

• Court: National Labor Relations Board
• Writing for the Court: JOHN F. RING, CHAIRMAN
• Parties: Johnson Controls, Inc. and International Union, United Automobile, Aerospace v. Agricultural Implement Workers of America, AFL-CIO, and its affiliated Local Union No. 3066 and Brenda Lynch and Anna Marie Grant.
• Decision Date: 03 July 2019
• Docket Number: 10-CA-151843

Johnson Controls, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its affiliated Local Union No. 3066 and Brenda Lynch and Anna Marie Grant.

No. 10-CA-151843

United States of America, National Labor Relations Board

July 3, 2019

DECISION AND ORDER

JOHN F. RING, CHAIRMAN

This case involves what happens when employees- with no improper influence or assistance from management-provide their employer with evidence that at least 50 percent of the bargaining unit no longer wishes to be represented by their union, the employer tells the union that it will withdraw recognition when the parties' labor contract expires, and the union subsequently claims that it has reacquired majority status before the employer actually withdraws recognition.^[1] Under extant precedent, the Board determines the union's representative status and the legality of the employer's action by applying a “last in time” rule, under which the union's evidence controls the outcome because it postdates the employer's evidence. As we shall explain, this framework has proven unworkable and does not advance the purposes of the Act. Today, we adopt a new framework that is fairer, promotes greater labor relations stability, and better protects Section 7 rights by creating a new opportunity to determine employees' wishes concerning representation through the preferred means of a secret ballot, Board-conducted election.

Under well-established precedent, an employer that receives evidence, within a reasonable period of time before its existing collective-bargaining agreement (CBA or contract) expires, that the union representing its employees no longer enjoys majority support may give notice that it will withdraw recognition from the union when the CBA expires, and the employer may also suspend bargaining or refuse to bargain for a successor con-tract.^[2] This is called an “anticipatory” withdrawal of recognition.

When the contract expires, however, an employer that has made a lawful anticipatory withdrawal of recognition still withdraws recognition at its peril. If the union challenges the withdrawal of recognition in an unfair labor practice case, the employer will have violated Section 8(a)(5) if it fails to establish that the union lacked majority status at the time recognition was actually withdrawn.^[3]In making this determination, the Board will rely on evidence that the union reacquired majority status in the interim between anticipatory and actual withdrawal, regardless of whether the employer knew that the union had reacquired majority status.^[4] As a result, an employer that properly withdraws recognition anticipatorily, based on evidence in its possession showing that the union has lost majority status, can unexpectedly find itself on the losing end of an 8(a)(5) charge when it withdraws recognition at contract expiration. Moreover, the remedy for that violation will typically include an affirmative bargaining order, which precludes any challenge to the union's majority status for a reasonable period of time-at least 6 months, as long as 1 year.^[5] And if, within this insulated period, the parties reach agreement on a successor contract, the union's majority status will again be irrebuttably presumed for the duration of that contract, up to another 3 years.^[6]

The facts of this case and others like it highlight the crux of the problem. Where the union possesses evidence that it has reacquired majority status notwithstanding prior disaffection evidence showing that it had lost that status, some unit employees necessarily must be “dual signers.” That is, some employees must have signed both the anti-union petition and, subsequently, a union authorization card or pro-union counter-petition. And where this happens, unions and employers are generally unwilling to disclose the identities of signers on their respective sides, for fear that the other party may retaliate against them. Although one may wish it were otherwise, we cannot say this mutual concern of retaliation is wholly groundless.

Further, we believe there are better ways to settle disputes over a union's postcontract majority status than by relying on the “last in time” rule. In what often may be a contentious and confusing time for employees who are being repeatedly asked to express their representational preference, the “last in time” rule strikes us as ill-suited for making such an important determination. Moreover, we are concerned that the union's ability to gather its counter-evidence secretly, together with the “peril” rule of Levitz, creates an opportunity, if not an actual incentive, for incumbent unions to take advantage of the “last in time” rule to extend the bar against challenges to its representative status for years to come, to the detriment of employees' Section 7 right to choose a different bargaining representative or to refrain from union representation altogether.

The framework we announce today addresses all these concerns and creates a mechanism that settles questions concerning employees' representational preference in the anticipatory withdrawal context through a Board-conducted, secret-ballot election, the preferred means of resolving such questions.^[7] In doing so, we overrule Levitz, supra, and its progeny insofar as they permit an incumbent union to 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.^[8] Instead, we hold that proof of an incumbent union's actual loss of majority support, if received by an employer within 90 days prior to contract expiration, conclusively rebuts the union's presumptive continuing majority status when the contract expires. However, the union may attempt to reestablish that status by filing a petition for a Board election within 45 days from the date the employer gives notice of an anticipatory withdrawal of recognition. Consistent with the Board's usual practice, we shall apply our new holding retroactively in this case and in other pending cases. Accordingly, we will adopt the judge's recommended Order and dismiss the complaint.

Facts

The Respondent manufactures, distributes, and sells interior automobile components from its facility in Florence, South Carolina. Since August 18, 2010, the Union has represented a unit of production and maintenance employees employed at the Florence facility. The parties' most recent collective-bargaining agreement was effective from May 7, 2012, through May 7, 2015.^[9]Negotiations for a successor agreement began on April 20. However, on April 21, the Respondent was presented with a union-disaffection petition circulated by employees Brenda Lynch and Anna Marie Grant. The petition, titled “Union Decertification Petition, ” was signed by 83 of the 160 bargaining-unit employees and stated, in pertinent part:

WE, THE UNDERSIGNED, EMPLOYEES OF Johnson Controls, Florence facility, DO NOT WISH TO CONTINUE TO BE REPRESENTED BY THE United Auto Workers, LOCAL UNION NO. 509 3066 (Local 509 3066) FOR PURPOSES OF COLLECTIVE BARGAINING OR ANY OTHER PURPOSE ALLOWED BY LAW. WE UNDERSTAND THIS PETITION MAY BE USED TO OBTAIN AN ELECTION SUPERVISED BY THE NATIONAL LABOR RELATIONS BOARD OR TO SUPPORT WITHDRAWAL OF RECOGNITION OF THE UNION.^[10]

There is no allegation that any of the disaffection signatures were tainted by supervisory involvement.

Later that same day (April 21), the Respondent notified the Union that it had received the petition and would no longer recognize the Union as the employees' bargaining representative when the parties' collective-bargaining agreement expired on May 7. The Respondent also stated that it was cancelling the previously scheduled bargaining sessions for a successor agreement. In its April 22 response, the Union stated that it had not received a petition or any verifiable evidence that it no longer enjoyed majority support, and it demanded that the Respondent return to the bargaining table. On April 24, the Respondent refused to provide the petition or to continue bargaining.

The Union thereafter began soliciting authorization cards from bargaining-unit employees. The authorization cards stated:

UAW AUTHORIZATION CARD

I, ___ authorize the United Auto Workers to represent me in collective-bargaining.

The cards included signature lines for the employee and a witness. Between April 27 and May 7, the Union collected 69 signed authorization cards, six of which were signed by employees who had also signed the disaffection petition. We will refer to these six employees as the “dual signers.”

On May 5, the Respondent informed the Union that it had not received any evidence from the Union that the Union continued to enjoy majority support among the bargaining-unit employees and that, in the absence of such evidence, it would withdraw recognition upon expiration of the parties' current contract. Although not mentioned by the judge, the Union responded by letter the following day, advising the Respondent that it “ha[d] credible evidence” that it retained majority support and was “happy to meet” to compare evidence. By letter dated May 7, the Respondent acknowledged the Union's request to meet but stated that it was “not willing … to share the names of the employees who signed the [disaffection] petition.” The Respondent further stated:

You indicate that despite the evidence the [Respondent] has received from our employees, the [U]nion has evidence it has not lost majority support. However, while the employees provided the [Respondent] with their evidence, to date the [U]nion has not provided any substantiated evidence supporting its position. Absent contrary evidence, we must rely upon the evidence in our possession and proceed as previously indicated

The Respondent withdrew recognition from the Union on...