Employer can withdraw recognition of Union only if majority of Union members have withdrawn support at time of withdrawal

For the week of March 17, 2008

Under the National Labor Relations Act (NLRA), it is an unfair labor practice for an employer to refuse to bargain collectively with the union representing its employees. Once the employees comprising a particular bargaining unit have elected a union to represent them, the union enjoys a "rebuttable presumption" of majority support during the term of its collective bargaining agreement, if that agreement is for three years or less. An employer can rebut that presumption – and may unilaterally withdraw its recognition of the union – only on a showing that the union has lost the support of a majority of employees in that bargaining unit at the time of that withdrawal.

The 4th U.S. Circuit Court of Appeals has addressed one health care industry employer’s attempt to withdraw recognition of a union after a number of members signed a "disaffection petition" stating that they no longer wanted to be represented by the union. NLRB v. HQM of Bayside, LLC, 4th Cir., No. 06-2253, March 10, 2008. The issue came to the Court’s attention because the withdrawal became effective in spite of the fact that a second petition was filed a month after the first one, stating that a majority of the employees "DO NOT wish to withdraw recognition or representation" of the union.

HQM of Bayside owns and operates Bayside Care Center (Bayside), a nursing home in Lexington Maryland. In 1998, the National Labor Relations Board certified the United Food & Commercial Workers as the exclusive bargaining representative for Bayside employees other than nurses, clerical employees, managers, guards, and supervisors. Bayside and the Union entered into a collective bargaining agreement (CBA) effective from December 1, 2001 through November 30, 2002.

In September 2002, a majority (34) of Bayside’s 61 employees signed a petition stating that they no longer wanted to be represented by the Union. On October 30, Bayside informed the Union that it would withdraw its recognition on December 1, after the expiration of the CBA. In early November, another petition was filed, again signed by 34 of the employees, including 13 who had signed the original disaffection petition, who this time stated that they wanted continued representation by the Union. In spite of the subsequent petition, Bayside withdrew its recognition of the Union on December 1, 2002, and refused to bargain with them after that date.

The National Labor Relations Board issued a complaint and notice of hearing, based upon Bayside’s refusal to bargain. An Administrative Law Judge conducted the hearing, and found Bayside to be in violation of the NLRA, and imposed an affirmative bargaining order. Bayside filed exceptions, but the Board affirmed the ALJ’s findings. When Bayside continued its refusal to bargain with the Union, the Board petitioned the Fourth Circuit for enforcement of its order. That petition was granted.

Bayside could unilaterally withdraw recognition of the Union without violating the NLRA only if it was able to show that at the time of its withdrawal, the majority of employees in the bargaining unit no longer supported the Union as their bargaining representative. Both the ALJ and the Board determined that although Bayside had signatures from a majority of employees in the bargaining unit on the initial petition, Bayside was not entitled to rely on the signatures from the 13 employees who also signed the subsequent petition that supported the Union. The Fourth Circuit affirmed that decision, finding that those 13 employees "clearly manifest[ed] that [they] had changed their sentiments about the Union." Without those 13 signatures, Bayside was not able to show that a majority of employees in the bargaining unit no longer supported the Union, and therefore violated the NLRA by refusing to recognize the Union.

In its opinion, the Fourth Circuit stressed the fact that because an employer has the burden of showing, by a preponderance of the evidence, that a union has lost majority support at the time that the employer withdraws recognition of that union, the preferred method for resolving the question of that support is through "Board conducted elections." In this case, an election would clearly have settled the issue of the employee’s support, or lack thereof, for Union representation at the time of Bayside’s withdrawal of recognition, and would have avoided this lengthy litigation.