Employers Must Have Clear and Unequivocal Statements From Majority Of Employees Before Unilaterally Withdrawing From Their Union
By Stephen R. McCutcheon, Jr., Attorney at Law and Meg E. Wilson, Attorney at Law
What is the difference between an employee stating he or she wishes to “exit” or “resign” from the union, does not want to “be part of the union,” does not “wish to be a union member,” or wants to “get out of the Union?” Most people would understand all of these statements to mean that the employee does not wish to be represented by the union. However, an Administrative Law Judge (ALJ) for the NLRB disagreed in Pacific Coast Supply, LLC No. 20-CA-086308, and held that the employer committed an unfair labor practice by withdrawing recognition of the union based upon those statements. The case is now before the NLRB.
As a general matter an employer may unilaterally withdraw recognition of a union upon a showing that the union has lost the support of a majority of the employees. According to Board law, “an employer may rebut the continuing presumption of an incumbent union’s majority status, and unilaterally withdraw recognition, only on the showing that the union has, in fact, lost support of a majority of the employee in the bargaining unit.” Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). In Levitz, the Board noted that the evidence of loss of majority must be “objective” and based on a “preponderance of evidence.”
In Pacific Coast Supply, eight employees of a 15 employee bargaining unit submitted statements to their employer about their dislike for the union. Four of the employees stated that they wished to “exit” or “resign” from the union, “did not wish to be a Union member,” or “wish to get out of the Union.” The other four stated that they no longer “wish to be part of the Union.” The ALJ found the statements from the first four employees were ambiguous, and interpreted them to mean that the employees simply did not want to pay dues. According to the administrative law judge, if they wanted to terminate their representation by the union, the employees instead needed to state that they “do not wish to be a part of the Union.” The distinction between “I would like to exit the union” or “I wish to get out of the union” versus “I do not wish to be part of the union” is one only seen by the ALJ.
Even more troubling, the ALJ in this case refused to admit testimony evidence from the four employees whose statements were found to be ambiguous confirming that they intended, in fact, to withdraw from union representation. The judge found that such “after-acquired evidence” was not admissible because it was “subjective” and “post-dated the withdrawal of recognition” by the employer. However, the key purpose of the NLRA is to protect the freedom of employees to decide whether or not to organize, and to select representatives of their choosing, thus, by refusing consideration of what the employees state they intended, the ALJ effectively denied those employees their rights of self-determination under the NLRA.
Regardless of whether the NLRB agrees that the employer had a proper basis for withdrawing recognition of the union, this case demonstrates that employers must act carefully when evaluating whether employee statements indicate the union has lost the support of a majority of the employees, and should expect that statements will be given the narrowest of interpretations.