General Practice, Solo & Small Firm DivisionMagazine

Labor and Employment Law

Withdrawal of Recognition: The Impact of Allentown Mack and Lee Lumber

By James M.L. Ferber and R. Scott Ferber

By analyzing Allentown Mack Sales & Service, Inc. v. NLRB and Lee Lumber & Bldg. Material Corp. v. NLRB, this paper explores recent developments involving the standards for judging withdrawal of recognition of an incumbent union and polling, and suggests how an employer can tailor its actions to fit the changing landscape.

Methods of Withdrawing Recognition of an Incumbent Union. An employer may withdraw recognition of an incumbent union if it can establish either: (i) that the union no longer enjoys majority status in fact; or (ii) that the withdrawal is predicated on a reasonably grounded doubt as to the union’s continued majority status, which doubt was asserted in good faith, based upon objective considerations, and free of employer unfair labor practices.

An employer may poll bargaining unit employees to determine whether an employer has a good faith doubt of an incumbent union’s continued majority status if it can demonstrate reasonable grounds, based on objective considerations, for believing that the union has lost its majority status. In conducting this poll: (i) its purpose must be to determine the truth of the union’s claim of majority; (ii) this purpose must be communicated to employees; (iii) assurances against reprisals must be given; (iv) the poll must be by secret ballot; and (v) the employer may not engage in unfair labor practices.

An employer can also withdraw recognition: by filing a petition requesting that the Board determine whether the incumbent union continues to possess majority status; if its employees obtain, circulate, and file a decertification petition, where the employer has not interfered with, restrained, or coerced the employees in the petition or election process; or if presented with a "disaffection" petition signed by a majority of employees in the bargaining unit indicating that they no longer support the union, provided the petition is free from unlawful employer assistance or support.

Allentown Mack Sales & Services v. NLRB. In Allentown, a union represented 45 employees at Mack Truck’s Allentown, Pennsylvania, facility. Mack sold its Allentown truck dealership, retaining 32 of the 45 bargaining unit employees. After the sale, the union demanded recognition. Relying on statements from seven employees expressing a desire not to be represented by the union, Mack conducted a post-certification poll by secret ballot which revealed that 19 employees opposed union representation while 13 employees favored it. Mack withdrew recognition. Finding that Mack lacked sufficient objective considerations on which to base a reasonable doubt about the union’s continued majority status, the ALJ ordered the company to recognize and bargain with the union. The Board affirmed.

The Supreme Court upheld the NLRB’s good-faith "reasonable doubt" standard, but eased the burden on employers for proving this doubt. The Court stated that a good-faith doubt is a "genuine, reasonable uncertainty about whether [the union] enjoy[s] the continuing support of a majority of unit employees." Reversing the Board, the Court found that Mack had a good-faith doubt about the union’s majority status thereby justifying its decision to conduct the poll.

Lee Lumber & Bldg. Material Corp. v. NLRB. In Lee Lumber, several bargaining unit employees expressed to the employer their discontent with the union before their collective bargaining agreement’s expiration, circulated a petition seeking another election, and obtained signatures from over 80 percent of the employees in the bargaining unit. Lee Lumber allowed the employees to take paid time off from work to deliver the petition to the Board’s regional office. The union sought to block the decertification election, alleging that Lee Lumber had sponsored or assisted in the filing of the petition. The company declined to bargain until the union was shown to represent a majority of the employees. After the collective bargaining agreement expired, an employee presented the company with a document signed by a majority of the employees declaring that they no longer desired to be represented by any union. The company severed all contact with the union.

The court upheld a new rebuttable presumption standard advanced by the Board in which a causal nexus between an employer’s unlawful refusal to bargain and its subsequent repudiation of the union was automatically presumed, regardless of whether the employees were aware of the employers’ unlawful behavior. The court ruled that an unlawful refusal to recognize and bargain with an incumbent union would be presumed to taint any subsequent loss of support for the union, without any particularized demonstration of a causal relationship between the two.

Under Lee Lumber, an employer that unlawfully refuses to bargain with a union must show that em-ployee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time. Determining whether a reasonable period of time has elapsed does "not depend on either the passage of time or on the number of meetings between the parties, but instead on what transpired and what was accomplished during the meetings." The reviewing judiciary body should consider the degree of progress made in negotiations, whether or not the parties were at an impasse, and whether the parties were negotiating for an initial contract.

Recent Decisions in the Wake of Allentown Mack and Lee Lumber. In Beverly Farm Foundation v. NLRB, the court upheld the Board’s decision that Beverly Farm unlawfully withdrew recognition from the union, finding that an alleged lack of employee participation in union-sponsored activities did not constitute a "reliable symptom of disaffection."

In Wire Products Mfg. Corp., the Board held that Wire Products unlawfully assisted its employees in obtaining signatures for a disaffection petition because the employer: (i) had distributed a letter to employees stating that they would fare better without the union; and (ii) had engaged in unfair labor practices during the petition’s circulation. Wire Products could not rely on the petition to assert a good-faith doubt as to the union’s continued majority status. The Board disregarded the ALJ’s analysis concerning the numerical sufficiency of the signatures on the disaffection petition and, instead, relied on circumstantial evidence in finding that Wire Products had failed to establish a good-faith reasonable doubt.

In Quazite Corp., the Board found that although Quazite had committed several prestrike unfair labor practices, none of these involved a general refusal to bargain and were too remote in time to have caused the employees’ later disaffection with the union, such that these unfair labor practices did not taint Quazite’s withdrawal of recognition. With respect to a supervisor’s comments to two striking employees that they would be subjected to harsh working conditions if they returned to work, the Board concluded that the comments did not constitute the kind of unfair labor practices that "would have likely caused the Union’s loss of majority support."

In Pirelli Cable Corp., after unit employees went on strike, working employees obtained signatures from more than one-half of those employed on a petition to decertify the union. Pirelli withdrew recognition from the union. The court held that the disaffection petition signed by over half of the bargaining unit’s members was sufficient objective evidence to rebut the union’s presumed majority status and constituted sufficient grounds for withdrawal of recognition.

James M.L. Ferber is a partner and chair of the Labor and Employment Department at Schottenstein, Zox & Dunn in Columbus, Ohio. The author was aided by R. Scott Ferber, an associate in the same firm.

- This article is an abridged and edited version of one that originally appeared on page 339 in The Labor Lawyer, Fall 1998 issue (14:2).

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