Employers Cannot Unilaterally Decide to Recognize Union for Some Purposes but Not Others

April 17, 2017

In a recent case, the NLRB addressed the issue of an employer recognizing a union for certain purposes but not for others. In a 2- to- 1 decision, the National Labor Relations Board reversed the administrative law judge (ALJ) and held that an employer violated the National Labor Relations Act (NLRA) when it refused to bargain over a successor collective bargaining agreement pending a decertification election, while continuing to recognize and deal with the union in all other respects.

Employer refuses to bargain over contract in light of petition

In T-Mobile USA, Inc., the National Labor Relations Board (NLRB) considered a case that involved both representational issues and substantive unfair labor practices. The employer, a cellular telephone service provider, had a facility in Connecticut represented by CWA Local 1298. The union was first recognized in 2011 and the employer and union were parties to a collective bargaining agreement from July 31, 2012 through May 31, 2014. On March 28, 2014 a member of the bargaining unit filed an RD (decertification) petition, asking for an election to see if the bargaining unit wished to continue to be represented for collective bargaining purposes by Local 1298. Shortly thereafter, 13 of the 20 employees in the bargaining unit signed a petition stating that they no longer desired to be represented by Local 1298 and provided it to the employer.

The employer and Local 1298 had attended two bargaining sessions for a successor collective bargaining agreement in August of 2014. In October of 2014 the employer notified the union that it was suspending bargaining over a successor contract until the representation (decertification) issue was resolved. The employer also notified Local 1298 that it would continue to recognize it as the collective bargaining representative for its bargaining unit employees, abide by the terms of the collective bargaining agreement, and bargain over issues that arose in the interim. Thereafter, the employer did in fact negotiate with Local 1298 over issues that arose in the interim including stock grants, changes to the fleet policy, changes to mileage reporting, and tax implications for the use of company vehicles. The employer also continued to process grievances, furnish information requested by Local 1298, and speak with the union over issues affecting bargaining unit employees.

As a result of the employer’s decision to suspend negotiations, the union filed unfair labor practice charges against it alleging, among other things, that the employer violated Sec. 8(a)(5) of the National Labor Relations Act by refusing to bargain with the union over a successor collective bargaining agreement. The administrative law judge who heard the case ruled in the employer’s favor, finding that it did not violate the NLRA by suspending negotiations over the collective bargaining agreement. In so holding, the ALJ noted that an employer may unilaterally withdraw recognition from an incumbent union if it has objective evidence that the union has lost majority support. The ALJ believed that the decertification petition, in conjunction with the separate petition, presented evidence of loss of majority support, thereby entitling the employer to withdraw recognition from the union. In light of this, the ALJ determined that the employer was entitled to take the “lesser path” of suspending negotiations over the successor collective bargaining agreement on a temporary basis.

NLRB decides the employer cannot recognize union only for certain purposes but not others

In reviewing the ALJ’s decision, the NLRB disagreed with his reasoning. It noted that when faced with evidence that a union has lost majority support, an employer may unilaterally withdraw recognition from the union. However, the Board noted that the employer does so at its own peril. Alternatively, the NLRB pointed out that an employer that has evidence of actual loss of majority status, has the option to seek an RM election (petition for representation) to determine whether or not the union continued to enjoy majority support, rather than withdraw recognition. The Board noted that during the pendency of an RM election, the employer remains obligated to continue bargaining.

Both the ALJ’s decision and the NLRB decision were predicated upon a previous decision by the Board. The NLRB pointed out that the previous decision did not specifically address whether an employer that continues to recognize a union could nevertheless unilaterally refuse to bargain over a successor contract. The NLRB was critical of the fact that, in this particular case, the employer continued to recognize the union but then unilaterally chose which parts of the bargaining relationship it would honor, effectively refusing to fulfill all of its normal bargaining obligations. The NLRB stated that it could not “countenance this selective approach to a collective-bargaining relationship.” Instead, the Board stated that it finds that, so long as the employer continued to recognize the union, it was obligated to fulfill all aspects of its bargaining obligations.

The underlying reasoning of the Board was that when an employer has a duty to bargain, it has a duty to fulfill all of its mandatory bargaining obligations. An employer that fails to do so, according to the Board, destabilizes the bargaining process in two important aspects. First of all, by unilaterally choosing which parts of the bargaining relationship it would honor, the employer could gain an advantage by excluding those subjects on which it was more likely to give concessions to the union, thereby reducing the likelihood that the parties would find common ground. Secondly, the NLRB stated that such an approach would allow the eEmployer to continue to recognize and bargain with the incumbent union only in those areas where the employer held an advantage, either legal or economic, thus reducing the possibility of compromise and the ability of the relationship to function effectively. Finally, the NLRB pointed out that allowing an employer to unilaterally dictate which subjects the parties could bargain over would undermine the union, making it appear ineffective and weak to the employees. It found that all of these were wholly inconsistent with the Act’s policy to foster stable collective bargaining relationships. T-Mobile USA, Inc., 365 N.L.R.B. 23 (2017)

Bottom line

When an employer is in the situation where it has a good faith doubt of majority status, it essentially has two choices. It can, at its peril, refuse to recognize the union, and defend an unfair labor practice charge by demonstrating that in fact there has been a loss of majority status. Alternatively, the employer can file an RM petition for an election to determine whether its employees wish to continue to be represented for collective bargaining purposes by the incumbent union. However, during the pendency of such a petition and the outcome of any such election, the employer is required to recognize the union in all respects. While it might be wise for an employer, under the facts of this case, to approach the incumbent union to see if it makes sense to mutually agree to suspend negotiations pending the outcome of a board election, the NLRB has made it clear that the employer cannot unilaterally implement this as an option while continuing to recognize the union for other purposes.

This article, slightly modified to note recent updates, was featured in the March 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.