An employer failed to demonstrate a loss of majority support for a union and unlawfully withdrew recognition  when it  relied in part  on employees’ written statements that they no longer wished to be union members, an Administrative Law Judge (ALJ) of the National Labor Relations Board ruled.  See Pacific Coast Supply, LLC, 2013 NLRB LEXIS 445 (June 19, 2013).

The NLRB holds that an employer may withdraw recognition unilaterally only on a showing the union in fact has lost the support of a majority of employees.   In Pacific Coast Supply, the employer and union began bargaining for a successor collective bargaining agreement following expiration of their most recent  agreement.  During negotiations, the employer received written statements from eight of the 15 bargaining-unit employees expressing their lack of interest in the union.  Based on the statements, the employer then withdrew recognition and the union filed an unfair labor practice charge.   The ALJ held the statements did not support a withdrawal of recognition. 

The ALJ decided the following four statements clearly indicate a desire to withdraw from union membership but do not support withdrawal of recognition:  (1) “I would like to exit the union”; (2) “I resign from the Union”; (3) “I do not wish to be a Union member” and (4) “I wish to get out of the union.”  The ALJ further rejected the employer’s argument that an employee’s resignation from the union in non-right-to-work states (in which union membership may be required as a condition of continued employment) can mean only that the employee no longer desires to be represented by the union. 

On the other hand, the ALJ found the following four statements supported withdrawal of recognition:  (1) “I do not wish to be a part of the union”; (2) “I do not wish to be a part of the union” (3) “I no longer wish to be a part of the union”; (4) “I do not wish to be a part of the union.”   Since the ALJ found four of the eight employee statements demonstrated only a lack desire for  union membership, the employer was unable to demonstrate a lack of majority support in union representation. 

The takeaway for employers: employee statements disavowing union support should be considered carefully before deciding whether they support withdrawing recognition from the union.  Withdrawals of recognition are disfavored by the NLRB. Therefore, the NLRB and its ALJs will scrutinize withdrawal of recognition situations closely.  Indeed, it appears, based on this decision, they only will give credence to specifically worded statements of a desire to no longer be represented to support a withdrawal of recognition.