Employer’s Refusals to Meet Don’t Prevent Withdrawal of Recognition

October 12, 2006 by Beeson Tayer & Bodine

The NLRB has long held that an employer may not lawfully withdraw recognition from a union where it has committed unfair labor practices that are likely to affect the union’s status, cause employee disaffection, or improperly affect the bargaining relationship itself.

But in Garden Ridge Management, 347 NLRB No. 13, the Board upheld an employer’s withdrawal of recognition even after concluding that the employer unlawfully refused the union’s demands for more frequent bargaining sessions. The employer refused without explanation the union’s repeated demands for addition- al bargaining sessions in the year following the union’s certification. Once the one-year certification period expired, and with negotiations still not concluded, the employer withdrew recognition after receiving an employee petition indicating a majority no longer wanted union representation. The union filed charges with the Board, asserting the employer’s refusal to meet on a more frequent basis undermined the union’s strength and led to the employee petition. The Board agreed the employer committed an unfair labor practice by refusing the union’s demands for additional bargaining sessions. But the Board ruled the employee petition remained a valid basis for the employer to withdraw recognition.

According to the Board, “not every unfair labor practice … will taint evidence of a union’s subsequent loss of majority support. … [W]here the unfair labor practice does not involve a general refusal to recognize and bargain … there must be specific proof of a causal relationship between the unfair labor practice and the ensuing events indicating a loss of support.” Because the union gav eup requesting additional bargaining sessions during the final five months of negotiations, the Board concluded the union failed to prove a link between the employer’s unfair labor practice and the employee petition.

Employers often avoid bargaining sessions to string out the process, wear down the union, and foment employee dissatisfaction. Unions facing protracted bargaining with stubborn employers, whether for a first or a successor contract, are well advised to pursue the bargaining process and not let up on the bargaining demands.

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