Since 2001, an employer presented with evidence that at least 50 percent of its unionized bargaining unit no longer wanted to be represented by the union could anticipatorily withdraw recognition from that union. The union, however, could rebut that evidence by showing that, subsequent to the employer’s pronouncement and prior to the actual withdrawal, it regained majority status. Levitz Furniture, 333 NLRB 717 (2001). Now, in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), the National Labor Relations Board (NLRB) has overturned Levitz’s “last in time” rule, under which the union’s evidence controlled the outcome because it postdated the employer’s evidence. Instead, the NLRB created a procedure by which employees’ wishes will be determined by a secret-ballot election.
Home > Federal Law Articles > Labor Law > Union Organizing > Labor Board Corrects ‘Unjustified Asymmetry’ in Anticipatory Withdrawal of Union Recognition Doctrine