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Statements that employees wanted out of union did not support employer’s unilateral recognition withdrawal

By Kathleen Kapusta, J.D.

The NLRB did not unreasonably find that a lumber company “ran aground on the shoals of an unfair labor practice” when it unilaterally withdrew union recognition based on the statements of eight out of 15 bargaining unit employees, ruled the D.C. Circuit. Although four of the employees stated that they wanted to resign, get out of, or exit the union, the Board found this did not show that they no longer wanted the union to represent them for purposes of collective bargaining. In denying the employer’s petition for review and granting the Board’s cross-application for enforcement, the appeals court observed that “we can overturn the Board only if it was unreasonable for it to read all four of the statements as referring to union membership rather than union representation. We cannot make such a determination” (Pacific Coast Supply, LLC dba Anderson Lumber Co. v NLRB, September 18, 2015, Garland, M.).

Let me out. Despite a long relationship with the union going back to the late 1960s, the employer unilaterally withdrew recognition in 2012 while bargaining for a successor agreement. In doing so, it relied on one- or two-sentence, handwritten statements from eight of the 15 bargaining unit members, which were written in English even though five of the eight spoke or wrote primarily Spanish. The union filed an unfair labor practice charge and the Board found that the company violated the NLRA by withdrawing recognition where four of the statements did not show that the employees no longer wanted the union to represent them for the purposes of collective bargaining. In those statements, the employees wrote: “I resign from [the Union];” “I … do not wish to be a Union member;” “I … wish to get out of the Union;” and “if it is all possible I … would like to exit the union. This is due to the union not doing any services for the cost they are charging.”

Rejecting the employer’s argument that the NLRB erred in finding that the four statements did not show those employees opposed continued union representation, the D.C. Circuit observed that the Board has long maintained a distinction between an employee’s desire to be represented by a union, and his or her desire to be a member of a union. Only the desire of a majority not to have union representation warrants withdrawal of recognition.

Ambiguous. The employer did not dispute that the four employee statements were ambiguous with respect to the desire for continued union representation. Instead, it insisted that each statement was “inherently ambiguous because it could mean either that the employee does not want to pay Union dues but still wants the Union to represent him (as the ALJ found), or that the employee does not want to be a Union member because he does not support the Union.” While it contended that the better interpretation was that they were statements of non-support, to the court, the employer’s argument was flawed because it was aimed at the Board’s standard of review, not the court’s. Explaining that its job was not to determine whether the employer was right but rather whether the Board was at least reasonable in concluding otherwise, it refused to find that the Board was unreasonable. Each of the statements mentioned only union membership and none mentioned union representation. Given their focus on membership rather than representation, it was not unreasonable for the Board to read them that way, and thus to conclude that the employer did not meet its burden of showing that the employees wanted to end representation.

Specific statements. Rejecting the employer’s argument that the statement “I resign from the union,” should be read more broadly than it was written because the employee who wrote it did not read or write English, the court found that his “lack of facility with English renders the meaning of his English-language statement, which is itself textually ambiguous, even more so.” And while the employer argued that the statement from a new hire that “I do not wish to be a Union member,” showed that he did not support the union, the court disagreed, finding that the fact that he was new hire did not make a difference either as a matter of textual construction or of labor law. As to the statement “I … wish to get out of the union,” the court explained that where the most that could be said about a statement is that one reading of it may give rise to “doubt” about a union’s support, “it is not unreasonable for the Board to read it the other way.” Finally, as to the fourth statement, the court observed that the Board has historically read statements of dissatisfaction with union services or with the cost of union dues as indicating a desire to end union membership rather than representation.

Even if the NLRB’s interpretation was unreasonable with respect to any one statement, because the company relied on statements from only eight of the 15 unit employees to prove a lack of majority support, it had to prove that each of the eight statements showed that the employee in question rejected union representation and that the NLRB’s construction of each of the four statements upon which the Board independently relied was unreasonable. “In light of the long line of Board cases distinguishing between union membership and union representation, and our obligation to defer to the Board’s understanding of the workplace, we cannot say that the Board was unreasonable in concluding” that the employer failed to meet its burden, said the court.

Union security agreement. Nor did it matter that the employer operated under a union security agreement. While it argued that in these circumstances, when the employees said they did not want to be members of the union, they must have been saying that they wanted to abolish the union otherwise they were effectively firing themselves because the union security agreement required all employees to become dues-paying members of the union within 31 days of being hired, the court explained that even with a union security agreement in place, an employee cannot be fired simply for refusing to be a “member” of a union.

Post-withdrawal evidence. As to the employer’s argument that the NLRB wrongly barred it from bolstering its position with post-withdrawal evidence, specifically testimony from the eight employees that their intent had been to convey a desire that the union no longer represent them, the court pointed to the Board’s decision in Highlands Hospital Corp., in which it held that the testimony of 30 nurses who wanted to explain the reasons they signed a petition was irrelevant because the only evidence on which the employer relied in deciding to withdraw recognition was the petition itself. In addition, in Highlands Hospital Corp. v. NLRB, the appeals court affirmed the Board’s decision not to address the post-withdrawal testimony.

Supposed dilemma. Finally, the employer argued that interpreting Levitz Furniture Co.—the Board’s seminal decision barring an employer from withdrawing recognition from an incumbent union unless it can show, by a preponderance of the evidence, that at the time of the withdrawal the union had in fact lost the support of a majority of unit employees—in the way the Board did in this case created an impossible dilemma for an employer that thinks a majority of employees do not support the union: It cannot withdraw recognition without risking one kind of unfair labor practice finding, yet it cannot continue to recognize the union without risking another, continued recognition of a union known to have lost majority support. Disagreeing, the court pointed out that this was precisely the “no-win situation” argument that the Board rejected in Levitz.

Safe harbor. Observing that raising the bar for unilateral withdrawal of recognition does mean that an employer “withdraws recognition at its peril,” the court explained that the Board intended that result, expecting that it would create less temptation for employers to act unilaterally. However, as the Board explained in Levitz, the supposed “dilemma . . . is more apparent than real” because the employer’s ability to petition for an RM election provides it with a “safe harbor.” An employer with reasonable good-faith uncertainty regarding the union’s continuing majority status can petition for such an election, and the Board “‘would not find that the employer [committed an unfair labor practice] by failing to withdraw recognition while the representation proceeding was pending.’” Here, the employer did not seek safe harbor, said the court, noting that instead, it proceeded at its peril to unilaterally withdraw recognition.