September 20, 2021

Volume XI, Number 263

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September 17, 2021

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Employer Must Show Evidence of Union’s Loss of Majority Support to Withdraw Recognition

The National Labor Relations Board recently ruled in Kauai Veterans Express, that a Hawaii trucking company violated Section 8(a)(5) of the National Labor Relations Act by unilaterally withdrawing recognition from a union without objective evidence demonstrating that the union lost the support of a majority of workers.  

Kauai Veterans Express Co. (KVEC) created a petition to determine if its union members wished to be represented by its union. A majority of KVEC’s union workers indicated by checking a box on the petition that the employees wished to “leave” the union. Directly below the employees’ signatures, however, the petition stated that the “signature above indicates my … individual desire to participate as a member of Operating Engineers Local Union #3.” As is evident from the last sentence, the document contained contradictory language; some language indicating a desire to “withdraw membership” from the union and other language expressing a clear “desire to participate as a member.” Nevertheless, KVEC withdrew recognition of the union claiming it had evidence that the union lost majority support.

The NLRB upheld the administrative law judge’s (ALJ) determination that the petition did not constitute objective evidence of the union's actual loss of majority support because it reflected only the signing employees' desire to cease membership in the union, not their desire to cease having union representation. Moreover, the Board determined that KVEC did not have the necessary evidence to withdraw recognition because “the petition itself contained contradictory statements expressing both a desire to withdraw membership from the Union and to participate as a member of the Union.” As such, the Board agreed with the ALJ that KVEC violated Section 8(a)(5) and (1) of the NLRA by withdrawing recognition from the union.

In crafting the appropriate remedy in the case, the NLRB ordered KVEC to recognize and, upon request, bargain with the union as the exclusive collective-bargaining representative of employees in the appropriate bargaining unit. The Board ordered KVEC to:

  1. Make whole its unit employees by making contractually required contributions to the Union's pension annuity trust fund
  2. Reimburse unit employees for any expenses ensuing from its failure to make the required contributions
  3. Reimburse the union for any dues that it failed to deduct from wages and remit to the union without recouping the money owed for past dues from those employees 

The ruling is a reminder that an employer withdraws recognition of a union at its peril, and will have to prove by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 119
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About this Author

Frank T. Mamat Labor Relations Lawyer Barnes and Thornburg
Attorney in Charge

A range of entities, from the United Nations to small, two-person businesses, along with construction companies, and trade and business associations – come to Frank because of his nearly 45 years of deep experience helping companies, contractors and employers with their complex labor and union matters.

Through the years, Frank has successfully counseled clients on virtually every type of labor matter. He also helped the Michigan Senate in 2012 prepare Michigan's "Right to Work" law.

In particular, he provides counsel...

947-215-1320
Associate

Alex focuses his practice on assisting employers facing various employment litigation issues in federal and state courts. Specifically, he counsels and represents employers in a range of actions involving harassment, retaliation, discrimination, wrongful termination, and wage and hour claims.

He understands the nuances of helping clients document and present a strong case. His litigation experience includes serving as, while with a Michigan law firm, a special assistant attorney general representing the Michigan Department of Transportation in various litigation proceedings. For...

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