On July 3, 2019, the National Labor Relations Board issued an important decision in Johnson Controls Inc., 368 NLRB No. 20. The Board decided that within 90 days before the expiration of a collective bargaining agreement, employers faced with objective proof that a majority of employees no longer desire union representation can “anticipatorily” withdraw recognition from the union. The Board further held that unions faced with this “anticipatory” challenge to their monopoly representational status have 45 days to file for a secret ballot election to prove they retain majority support. If they do not file for such an election the withdrawal of recognition becomes fully effective at the expiration of the 45-day period.       

The main takeaways from this case are: 1) employers can lawfully withdraw recognition of a union when presented with objective evidence (like an employee signature petition) that the union has lost majority support, and they now face less legal jeopardy for honoring the wishes of their employees than they did under the prior regime; 2) secret ballot elections remain the favored method for determining employees’ representational desires, so if the union is “anticipatorily” ousted based upon a majority employee petition but believes it actually possesses majority support, it cannot litigate its way back to power using the slow and prolonged unfair labor practice process, but must file for a secret ballot election; and 3) as noted in the dissenting opinion of Obama appointee Lauren McFerran, the Johnson Controls decision could open the door to periodic recertification elections for unions.

Many employee advocates have long urged that recertification elections are desirable. Unlike politicians who must automatically face periodic elections (a.k.a “recertifications”), current NLRB law “presumes” that unions retain majority status in perpetuity. Yet statistics show that 94% of unionized workers have never voted for the union representing their workplace. James Sherk, Union Members Never Voted for a Union, Heritage Foundation, August 30, 2016. If the NLRB adopts a recertification process, unions could not rely upon outdated doctrines granting them perpetual majority status, but would have to periodically prove their majority support. As National Right to Work Foundation attorneys have long argued, permanently encrusting a labor union on a bargaining unit, with no showing of current employee support, does not lead to workplace stability or protect employees’ right of free choice.   

After Johnson Controls was issued, pro-union former NLRB members and academics complained about the process used by the NLRB majority to resolve the case. They alleged that the Board’s new rules for dealing with challenged withdrawals of recognition (essentially representational disputes) were not advocated by any party in the case and were made without public comment. See Labor Board Repeatedly Topples Precedent Without Public Input, Bloomberg BNA, Jul. 12, 2019.

Such claims are designed to sully the current Board’s reputation and undermine the legitimacy of its decisions. These claims also ignore the fact that the Johnson Controls employees who collected the majority petition against the UAW successfully intervened as full parties in the unfair labor practice case, and that their National Right to Work Foundation attorneys specifically asked the Board to resolve any disputes over the UAW’s majority status with a secret-ballot election—the very remedy adopted by the Board majority. Indeed, the intervening employees filed for a decertification election after their petition got bogged down in the UAW’s unfair labor practice process precisely to show their willingness to resolve the representational dispute via a secret-ballot election. 

Those intervening employees made this point repeatedly in their brief to the NLRB. That brief advocated that the Board order a secret ballot election to resolve the representational dispute because that is the only way to effectively protect workers’ rights to freely choose whether to be represented by a union or not. As the workers’ brief stated, “Fairness to employee Section 7 rights dictates that if [Johnson Controls] is required to recognize the UAW and/or bargain with it in any way, the Region should also be ordered to simultaneously reinstate Brenda Lynch’s decertification petition and hold a prompt secret-ballot election.”

It is worth noting that National Right to Work Foundation attorneys have been urging this approach for well over a decade, doing so in cases such as Dana Corp., 351 NLRB 434 (2007), and Lamons Gasket Co., 357 NLRB 739 (2011). They have long argued that disputes over whether a union retains majority employee support should be treated as representation cases to be resolved with a prompt secret-ballot election, not as unfair labor practice cases against employers that get dragged out for years―which is precisely what occurred in the Johnson Controls four-year litigation odyssey.

Finally, there is more than a little irony to criticism of the current Board’s decision-making process, coming from the same former Board members who overturned hundreds of years of precedent when they ran the NLRB during the Obama years, often without the notice, outside briefing and amicus filings they now disingenuously champion.