801 F.3d 321
D.C. Cir.2015Background
- Anderson Lumber, a California lumber supplier, recognized Chauffeurs, Teamsters, and Helpers Local 150 for a 15-member unit.
- After the February 28, 2012 expiration of the last contract, the parties began bargaining for a successor agreement.
- On July 20, the company, through its labor consultant, claimed employees lacked majority support and withdrew recognition relying on eight written statements from unit members.
- The eight statements were written in English; several authors had limited English proficiency and some statements were translated.
- The ALJ and Board held the withdrawal violated the NLRA because the statements did not prove loss of majority support; remedial relief was ordered.
- Anderson petitioned for review; the Board cross-applied for enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the four statements prove loss of majority support | Anderson argues statements show end of union representation. | NLRB argues statements show only membership loss, not representation loss. | Board reasonable; four statements do not prove loss of representation. |
| Whether post-withdrawal evidence can bolster the showing | Anderson seeks post-withdrawal affidavits to prove majority loss. | Board prohibits post-withdrawal evidence for proving loss at withdrawal. | Levitz and Highlands Hospital permit no weight to post-withdrawal evidence. |
| Impact of Levitz on unilateral withdrawal standard | Levitz allows withdrawal if union actually lost majority support. | Levitz demands proof of loss of majority at withdrawal date; post-evidence irrelevant. | Board’s reading consistent with Levitz; withdrawal at peril without proven loss of majority. |
| Effect of union-security agreements on interpretation of statements | Non-membership statements effectively indicate anti-union sentiment and dissolution of representation. | Disaffection with membership does not equal a desire to end representation; core dues may apply. | Cannot terminate representation solely on non-membership; statute preserves bargaining representation. |
| RM election as alternative to unilateral withdrawal | Employer can pursue RM election to test majority status and avoid unlawful withdrawal. | RM election is the preferred method; unilateral withdrawal is at risk without pursuing RM. | Safe harbor exists; employer may seek RM election; unilateral withdrawal at peril. |
Key Cases Cited
- Levitz Furniture Co., 333 NLRB 717 (2001) (employer must prove actual loss of majority support at time of withdrawal)
- Highlands Hosp. Corp. v. NLRB, 508 F.3d 28 (D.C. Cir. 2007) (post-withdrawal evidence not credited in securing withdrawal)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) (employer must seek majority status test; Board’s approach defers to precedent)
- Flying Foods Grp., Inc. v. NLRB, 471 F.3d 178 (D.C. Cir. 2006) (supports Levitz framework and precaution against unilateral withdrawal)