What is an Anticipatory Withdrawal?

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If you manage a unionized workforce, an anticipatory withdrawal is something for which you may be hoping. Particularly if your next collective bargaining session is approaching. In fact, nothing in life is permanent, so during the current contract, you may have worked to increase employee engagement levels, trained your managers and supervisors to effectively communicate with employees, reviewed all Human Resources policies and procedures to ensure they are equitable and unbiased, and developed an employee-focused webpage dedicated to discussing employee benefits and the advantages of working for your company. The pièce de résistance could easily be a new grievance procedure put in place to ensure employees have a way to directly communicate their issues to management should they so desire.

Surprise! Your employees show up in your office to let you know they don’t want to be in a union anymore. The first question you ask them is: “Do at least 50 percent of the bargaining unit want to stop being represented by the union?”

If they were to answer “yes” and present a decertification petition, you might let them know you can withdraw recognition of the union in advance of the collective bargaining contract expiring in a few months. This is called “anticipatory withdrawal” meaning the employer is giving notice it will be suspending bargaining over a new contract.

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The Story Continues

That should be the end of the story, but it wasn’t in the case of Johnson Controls, Inc. versus a variety of unions representing its employees (Case 10-CA-151843). Not surprisingly, the unions claimed they had regained a majority status between the anticipatory withdrawal and the actual withdrawal of union recognition. It can happen fast, too. Maybe you get busy and don’t immediately withdraw recognition, believing a few days won’t matter. It does. Unions will not retreat without a strong effort to maintain their status, especially in an organization the size of Johnson Controls.

Based on precedent, in the past the National Labor Relations Board (NLRB) has previously applied a “last in time” rule in which the union’s claim of regaining support of a majority of employees was considered because it came after the employees informed their employer. The implication of this rule is that, if the union challenges the employer’s withdrawal of recognition as an unfair labor practice (refusal to bargain), the employer will be found in violation of Section 8(a)(5) of the National Labor Relations Act, if unable to prove the union’s claim is wrong.

The remedy for losing such a case is that the NLRB would issue an affirmative bargaining order which means the employer cannot challenge the union’s majority status claim for 6 months to a year. The employer is forced to bargain with the union, a new contract is put in place, and the union is staying unless the employees vote the union out in a decertification election.

“Last in Time Rule” is Out and NLRB-Conducted Election is In

This process is obviously skewed towards the union and places employees in a difficult position. Is the union telling the truth? If so, it means some employees have signed an anti-union petition and later a pro-union counter-petition. Of course, this sets the stage for employees to be fearful of retaliation if anyone finds out who they are. Do your employees trust your business leaders to act fairly in this situation? This is not the kind of situation you want to find yourself in because it undoes so much of the goodwill so carefully cultivated with employees.

In considering the Johnson Controls case, the NLRB decided the “last in time” rule presents serious problems, including potentially forcing employees to stay with the union for years in violation of their Section 7 rights should the union’s unfair labor practice charge stand. The rule also, in effect, forced the employer to accept that the union really did regain majority support or face an ULP charge of refusing to bargain.

So the NLRB decided to change the rule. The new rule says that, if more than 50 percent of employees indicate they don’t want to be represented by the union when the contract expires, and if the employer anticipatorily withdraws recognition, there will not be an unfair labor practice proceeding should the union seek recourse.

Instead, the union will only be able to reestablish majority support through a secret ballot election conducted by the NLRB. This ends the ability of the union to immediately claim it reestablished majority support, and stops the employer from being put in a position of automatically facing an unfair labor practice charge.

Anticipatory Withdrawal Rule Returns Power to the Employees

This process applies when your employees show evidence, like a decertification petition, to you within a reasonable amount of time (90 days or less) before the contract expires. You can refuse to bargain or suspend bargaining, and rest assured the union is very likely to claim the petition is falsified or employees were not clear on what they were signing or that there are not enough valid signatures on the petition.

With the new rule, the NLRB won’t consider whether the union said it reacquired majority status after you withdrew recognition. Instead, the union will have to file an election petition to regain majority status within 45 days after the anticipatory withdrawal is announced. Employees are the people who state the truth of their case via a vote, rather than the unions claiming an employer violated the law and putting the employer on the defensive.

Weigh the Options As An Employer

“While this new ruling from the NLRB does restore some balance to the employees’ ability to regain a union free status, it is important to recognize that Anticipatory Withdrawals are a strategy,” Ricardo Torres of Permanent Solutions Labor Consultants said, “and any strategy may backfire. If the union moves forward with an RC election to remain as the employees’ third-party representative and you lose, you have a big problem.

“You will be forced to negotiate,” Torres continued, “and will potentially have to wait out the entire contract term before you have any hope of removing the union again. Because of this risk, you should look at all your options before proceeding with the withdrawal. While it seems like the easiest way out, the unions are unlikely to go down without some sort of a fight. You should also remember that traditional decertification (RD petition) is still an option. It is also critical to gauge whether taking the withdrawal route could result in infighting within the facility (employee vs. employee and employee vs. management). It might be better to simply allow a decertification to take place and let the employees vote on it. Either way, this decision must be made with eyes wide open and a clear understanding of your workforce.”

Be Careful to Act Within the Law

It’s important to remember that you can’t suddenly act as if there is no union just because a majority of employees want out. You can’t encourage decertification, offer to help get more signatures on a petition, promise to reward the employees if they will follow through to the end and not sign a new pro-union petition, or tell employees to not talk to the union representatives any more. You can show UnionProof’s “Decertification, Explained” video that explains the process, and you can reinforce all the positive aspects of your company.

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“This new ruling is definitely a step towards a more fair process for the employees and helps level the playing field for employers,” said Torres, “but my experience with over 24 years as a high-level union official has shown me time and time again that unions will find a way to work around any new rules from the NLRB. I am sure they are working on a solution now.”

The new anticipatory withdrawal rule only applies within 90 days of the union contract’s expiration which fits nicely with rules concerning decertification elections. When more than half of your employees sign a decertification petition within 90 days, they can skip the election, and naturally the employer will withdraw recognition. If the union agrees, then end of story.

However, it’s not likely the union is going to give up so easily in most cases, so now there will be an NLRB-conducted election to settle the matter. It’s so much better than defending the company against an unfair labor practice charge. The pendulum of fairness is swinging back to the middle, and that’s good news for employers. Now it’s time to strengthen employee engagement even more.

About the author

Walter Orechwa

Walter is Projections’ CEO and the founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.