Refusing to Bargain Over Successor CBA with Union that Lost Majority Support Unlawful: NLRB | Practical Law

Refusing to Bargain Over Successor CBA with Union that Lost Majority Support Unlawful: NLRB | Practical Law

On February 2, 2017, in T-Mobile USA, Inc., the National Labor Relations Board (NLRB) held that it is unlawful for an employer to refuse to bargain over a successor collective bargaining agreement (CBA) with a union that lost majority support.

Refusing to Bargain Over Successor CBA with Union that Lost Majority Support Unlawful: NLRB

by Practical Law Labor & Employment
Law stated as of 27 Mar 2018 • USA (National/Federal)
On February 2, 2017, in T-Mobile USA, Inc., the National Labor Relations Board (NLRB) held that it is unlawful for an employer to refuse to bargain over a successor collective bargaining agreement (CBA) with a union that lost majority support.
In T-Mobile USA, Inc., the panel (Board) heading the NLRB's judicial functions held that an employer violated the NLRA by refusing to bargain over a successor collective bargaining agreement (CBA), where the employer continued to recognize the union despite objective evidence that the union had lost majority support. The Board reversed the decision of an NLRB administrative law judge (ALJ), who had concluded that the employer had presented sufficient evidence of the union's loss of majority support to allow a complete withdrawal of recognition from the union, which therefore entitled the employer to suspend negotiations over the successor CBA on a temporary basis. (365 N.L.R.B. No. 23 (Feb. 2, 2017).)

Background

Cell phone service provider T-Mobile recognized Communications Workers of America and Local 1298 as the exclusive collective bargaining representative for a unit consisting of certain technicians employed in Connecticut. T-Mobile and the union entered into a CBA effective from July 2012 through May 2014.
In March 2014, a unit employee filed a decertification petition supported by a showing of interest. T-Mobile soon received a separate petition signed by 13 of the 20 bargaining unit employees stating that they no longer wanted to be represented by the union. In April 2014, the two sides began negotiating a successor agreement. On October 8, 2014, T-Mobile informed the union that it was suspending bargaining over the successor agreement until the resolution of the representation issue. However, T-Mobile would continue to recognize the union, negotiate with the union over interim matters, and abide by the terms of the expired CBA.
An ALJ:
  • Dismissed the union's allegations that T-Mobile violated NLRA Section 8(a)(5) and (1) by refusing to bargain with the union over the successor CBA.
  • Noted that an employer may unilaterally withdraw recognition from an incumbent union if it has objective evidence of the union's loss of majority support (Levitz Furniture Company of the Pacific, 333 N.L.R.B. 717, 725 (2001)).
  • Concluded that T-Mobile had presented sufficient evidence of the union's loss of majority support to allow T-Mobile to withdraw recognition from the union completely, so it was entitled to take the lesser path of temporarily suspending negotiations over the successor CBA.

Outcome

The Board majority (Member Pearce and Member McFerran) reversed the ALJ's dismissal of the allegations that T-Mobile violated NLRA Section 8(a)(5) and (1) by refusing to bargain with the union over a successor CBA.
In addition, the Board unanimously (Acting Chair Miscimarra, Member Pearce, and Member McFerran) adopted the ALJ's dismissal of the allegations that:
  • T-Mobile violated NLRA Section 8(a)(5) and (1) by maintaining an employee handbook that contained at-will and attendance policies.
  • T-Mobile independently violated NLRA Section 8(a)(1) by the same conduct.
The Board noted that:
  • Employers with evidence that an incumbent union has lost majority support may either:
    • withdraw recognition of the union (and show actual loss of majority support if the union files an unfair labor practice (ULP) over the withdrawal); or
    • seek an RM election to determine if the union still enjoys majority support.
  • In Levitz, the Board:
    • did not specify whether employers that continue to recognize a union may unilaterally refuse to bargain over a successor contract; and
    • did hold that if an employer continues to recognize the union and file an RM petition, rather than withdraw recognition, the employer must continue to bargain.
    (333 N.L.R.B. at 725-27.)
  • An employer that fails to fulfill all of its mandatory bargaining obligations is acting inconsistently with the NLRA's policy of fostering stable collective bargaining relationships. This failure destabilizes the bargaining process in two ways:
    • an employer's unilateral removal of certain bargaining subjects from negotiation can give the employer an advantage by removing only the subjects on which it is likely to give concessions to the union, reducing the likelihood of the parties finding common ground; and
    • a union is undermined and made to appear ineffective and weak to the employees if an employer is allowed to unilaterally dictate the subjects on which the parties can bargain.
The Board found that:
  • As long as an employer continues to recognize the union, it is obligated to fulfill all bargaining obligations. Failure to do so violates NLRA Section 8(a)(5) and (1).
  • T-Mobile refused to fulfill all of its normal bargaining obligations; while it continued to recognize the union, it unilaterally chose which parts of the bargaining relationship it would honor.
  • The Board's decision in Lexus of Concord, Inc., is distinguishable from T-Mobile because in Lexus, the employer suspended all bargaining for one month to "understand the situation" while it dealt with an employee letter asking for a suspension of negotiations with the union, a refusal-to-bargain charge, the issuance of the Levitz decision by the Board, and a decertification petition. Meanwhile, in T-Mobile, the employer indefinitely suspended bargaining over only one matter that it chose. (343 N.L.R.B. 851, 853-54 (2004).)
In dissent, Acting Chair Miscimarra argued that:
  • The evidence provided would have permitted T-Mobile to withdraw recognition of the union entirely.
  • If withdrawal is permitted, it is unreasonable to conclude that T-Mobile violated the NLRA by suspending just one aspect of the bargaining relationship.
  • T-Mobile took a more restrained approach than the employer in Lexus, which suspended all bargaining for an entire month. T-Mobile left the bargaining relationship mostly intact.
  • While the Board majority argued that a "selective approach to collective bargaining" could destabilize the bargaining process, it fails to recognize that the union had already lost a majority of employee support, rendering union status doubtful.
  • The majority is incorrect to assume that the only lawful options were to:
    • negotiate a new CBA; or
    • completely withdraw from the union.

Practical Implications

Under the Board majority opinion in T-Mobile USA, Inc., an employer with objective evidence that an incumbent union has lost majority support of bargaining unit employees may either:
  • Withdraw recognition "at its own peril," as the employer is required to show actual loss of majority support if the union files an ULP charge over the withdrawal.
  • Decide not to withdraw recognition and:
    • seek an RM election to determine whether or not the union still enjoys majority support; and
    • continue bargaining with the union while the RM petition is processed, including bargaining over a successor contract.

UPDATE

The US Court of Appeals for the District of Columbia Circuit denied T-Mobile's petition for review and granted the NLRB's cross-application for enforcement of the Board's order in an unpublished per curiam judgment (T-Mobile USA, Inc. v. NLRB, (D.C. Cir. Mar. 27, 2018).) Judge Sentelle filed a dissenting statement, noting support for arguments from Chairman Miscimarra's dissent.