In Johnson Controls, Inc., the National Labor Relations Board overruled its own precedent and adopted a new framework for the case when an employer notifies the union representing its employees that it will withdraw recognition at the expiration of the parties’ collective-bargaining agreement (i.e., an “anticipatory” withdrawal of recognition).

An “anticipatory” withdrawal of recognition typically begins when employees provide their employer with evidence that at least 50 percent of the bargaining unit no longer wishes to be represented by their union. Within a reasonable time before contract expiration, the employer notifies the union that it will withdraw recognition when the parties’ CBA expires, and then actually withdraws recognition at the expiration of the agreement.

Prior Precedent: Under prior precedent, the Board would determine the union’s representative status and the legality of the employer’s withdrawal of recognition by applying a “last in time” rule. Thus, if the union reacquired majority support between the employer’s stated intent to withdraw recognition and its actual withdrawal of recognition, the employer violated Section 8(a)(5) of the National Labor Relations Act because the union’s evidence postdated the employer’s evidence underlying the withdrawal of recognition, i.e., the union’s evidence was “last in time.” Even worse, the employer would violate the NLRA regardless of whether it knew that the union had reacquired majority status, because the union was under no obligation to notify the employer that it had reacquired majority status. The remedy for this violation of the NLRA was an order to continue bargaining for a reasonable period (between six months and one year), and if a successor contract was reached during that period, the union would enjoy a contract bar, which bars a decertification petition for up to three years.

New Framework: The Board’s modified framework for anticipatory withdrawal of recognition modified this precedent in two ways. First, the Board will now define a reasonable time before contract expiration within which anticipatory withdrawal can be made to be no more than 90 days before contract expiration. Second, if the incumbent union wishes to re-establish its majority status following an anticipatory withdrawal of recognition, it must file an election petition with the NLRB within 45 days from the date that the employer gives notice of an anticipatory withdrawal of recognition.

The modified framework effectively does away with the “last in time” rule. Accordingly, it is now insufficient for a union to surreptitiously reacquire majority status and conceal that fact from the employer, thereby setting up an unwitting employer to commit an unfair labor practice when it withdraws recognition pursuant to its evidence that the union no longer enjoys majority support. Instead, a union may only re-establish its majority status through a petition filed with the NLRB and a subsequent election.