A determination of the question concerning representation raised in the filing of a petition may be foreclosed by a disclaimer of interest by the party whose representative status is in issue or by the withdrawal of petition.
A valid disclaimer may be made by the petitioning representative, by the representative named in an employer petition, or by the incumbent union sought to be decertified. To be effective, it must be clear and unequivocal and made in good faith. Retail Associates, 120 NLRB 388, 391–392 (1958); Rochelle’s Restaurant, 152 NLRB 1401 (1965); and Gazette Printing Co., 175 NLRB 1103 (1969). In International Paper, 325 NLRB 689 (1998), the Board characterized the request as being one of “sincere of abandonment with relative permanency.”
Thus, a union’s bare statement is not sufficient to
establish that it has abandoned its claim to representation if the surrounding
circumstances justify an inference to the contrary. 3 Beall Bros. 3, 110 NLRB
685, 687 (1955). Its conduct, judged in
its entirety, must not be inconsistent with its alleged disclaimer H. A. Rider
& Sons, 117 NLRB 517, 518 (1957).
McClintock Market, 244 NLRB 555 (1979), and
In any inquiry into the effectiveness of a disclaimer, the union’s contemporaneous and subsequent conduct receives particular attention. Miratti’s, Inc., 132 NLRB 699 (1961); Holiday Inn of Providence-Downtown, 179 NLRB 337 (1969); Denny’s Restaurant, 186 NLRB 48 (1970). In the latter, the Board rejected a contention that the withdrawal or dismissal by the General Counsel of charges filed by the employer, alleging violations of Section 8(b)(7)(c) based on the picketing involved in the case, precluded a finding of conduct inconsistent with the union’s asserted disclaimer. See also Electrical Workers IBEW Local 58 (Steinmetz Electrical), 234 NLRB 633 (1978), an unfair labor practice case. In VFL Technology Corp., 329 NLRB 458 (1999), a union’s disclaimer issued pursuant to an article XX (no raid) decision was considered ineffective where the union continued to represent the employees.
The determination whether a disclaimer of interest by a
union should be accepted at face value or whether, despite the disclaimer, the
union is actually continuing to have an immediate recognitional object comes up
with recurring regularity. The question
in such cases, the Board has held, is one of fact to be resolved by evaluating
the union’s course of conduct before and after the disclaimer. See, for example, Pennisula General Tire Co., 144 NLRB 1459 (1963). McClintock
Market and
In American Sunroof Corp., 243 NLRB 1128 (1979), the Board held that a disclaimer by a contracting union would remove that contract as a bar to an election. Compare Mack Trucks, 209 NLRB 1003 (1974); Gate City Optical Co., 175 NLRB 1059 (1969); East Mfg. Corp., 242 NLRB 5 (1979). For further discussion of this issue see chapter 9, infra. See also VFL Technology Corp., 332 NLRB 1443 (2000), in which a divided Board found a clear and unequivocal disclaimer of interest by the union after it had lost a “no raid” proceeding under article XX of the AFL–CIO constitution, and Garden Manor Farms, Inc., 341 NLRB No. 24 (2004).
The absence of a disclaimer may be considered in assessing whether this is a recognitional objective. Micromedia Publishing, 289 NLRB 537 (1988).
An issue arose in the context of a claim by a union that,
while it was possibly retaining its interest in representing the employees at
some future date, it was no longer
making a present demand for
recognition. In rejecting this
contention, the Board found it significant that the union was not picketing for
reinstatement of one or a small number of employees, but for a mass reinstatement
of all strikers. “Since the strikers,”
observed the Board, “were union adherents, the immediate consequence of mass
reinstatement would have been the reestablishment of the union’s earlier
majority status.” In these
circumstances, it could not be realistically said that it had only a future,
but not a present, object of recognition.
Also taken into consideration was the union’s continued picketing in
support of bargaining demands for a 16-month period. Gazette Printing
In this connection, the Board has stated that, if there is
recognitional picketing immediately prior to an alleged shift in purpose, it
will review the alleged shift in purpose with “some skepticism.” Waiters
& Bartenders Local 500 (
When, however, the union’s picketing is not inconsistent with its disclaimer, an employer’s petition is subject to dismissal. Autohaus-Bugger Inc., 173 NLRB 184 (1969). For example, picketing at customer entrances, having as its purpose and effect the notification to the public of the fact that the employer is “not union,” is not in and of itself inconsistent with the union’s disclaimer. Cockatoo, Inc., 145 NLRB 611, 614 (1964); see also Raymond F. Schweitzer, Inc., 165 NLRB 875 (1974). Cf. Rusty Scupper, 215 NLRB 201 (1974).
The pressing of an appeal from a Regional Director’s dismissal of a charge alleging violation of Section 8(a)(1) and (5) is not necessarily inconsistent with a union’s disclaimer of a present status as majority representative of the employees. Franz Food Products, 137 NLRB 340 (1962). Section 9(c)(ii) authorizes the Board to proceed to an election only when there is a present claim of representation by the union, while an 8(a)(5) allegation is based on the contention that the union represented a majority in the past; i.e., at the time it requested recognition and the employer unlawfully refused to bargain with it. The finding of an 8(a)(5) violation thus necessarily requires an implicit conclusion that no valid question of representation existed at the time of the Board’s order. When the union’s disclaimer is found to be effective, of course, no election will be held.
On the other hand, 2 days before a disclaimer, the union told the employer that its picketing was designed as a pressure device to force capitulation to its recognition demand made 3 months earlier and, notwithstanding its disclaimer, continued without interruption to picket as it had done before, save for a slight modification in the picket sign language. The union’s “entire course of conduct” was inconsistent with its expressed disclaimer. Capitol Market No. 1, 145 NLRB 1430, 1432 (1964), McClintock Market, supra. Likewise, when the picketing was begun at the instigation of an association which included a number of the employer’s competitors and which had asked the union if it could “do anything” about the employer’s alleged substandard wages and hours, and when the union alleged that its picketing was assertedly to protest substandard wages and working conditions, but at no time had inquired into these subjects, the picketing was inconsistent with the disclaimer and was designed to force the employer to recognize and bargain with the union. Pennisula General Tire Co., supra.
Publicity picketing, or picketing aimed only at organizing the employees with the hope of eventually succeeding and then obtaining recognition, is not necessarily inconsistent with a disclaimer of a present claim for recognition. Martino’s, Home Furnishings, 145 NLRB 604 (1964). In that case, as of the date of the hearing, almost 2 years after the union had last communicated with the employer, it directed its appeal to the public toward persuading potential consumers not to shop at the employer’s establishment and distributed leaflets expressly declaring, “We make no demands of any kind” on the employer. This did not constitute a present claim to recognition and the union’s activity was consequently not inconsistent with its disclaimer. See also Windee’s Metal Industries, 309 NLRB 1074 (1992).
A union’s failure to act in furtherance of its
recognition, including failure to appear at the representation hearing, has
been interpreted by the Board as either an abandonment of its representative
status or a disclaimer that it represents the employees in question. Josephine
Furniture Co., 172 NLRB 404 (1968); and
Related to the subject of disclaimer of interest is the prior withdrawal of a petition.
Prior to the transfer of a case to the Board, a petition may be withdrawn only with the consent of the Regional Director with whom such petition was filed. After the transfer of a case to the Board, the petition may be withdrawn only with the consent of the Board. Whenever the Regional Director or the Board, as the case may be, approves the withdrawal of any petition, the case is closed. Rules and Regulations, Section 102.60(a).
When the petitioner moves to withdraw its petition, but
the intervenor opposes, the petitioner may withdraw from the election. In a specific instance, this was done “with
prejudice” to the petitioner’s filing of a new petition for a period of 6
months from the date of the decision “unless good cause is shown why the Board
should entertain a new petition filed prior to the expiration of such
period.” Carpenter Baking
Withdrawal from an election is permitted when, for
example, the employees in two previous separate units represented by different
unions are thereafter included in a combined unit. Westinghouse
Electric Corp., 144 NLRB 455 (1963). In that case, although neither union claimed
to represent all the employees in the combined unit, the employer’s petition
for such a unit was granted, and in these circumstances either or both unions
were permitted to withdraw from the election within 10 days from the date of
the Board’s decision with the proviso that, if both unions withdrew from the
election, the employer’s petition would be dismissed. However, if both unions elected to withdraw,
and the employer’s petition was dismissed, that petition could be reinstated if
either or both unions made any claim to represent the employees in question
within 6 months of the date of dismissal.
In Transportation Maintenance Service, 328 NLRB 691 (1999), a divided Board permitted the employee petitioner in an RD case to withdraw the petition after the election but before the count of the impounded ballots. See also Garden Manor Farms, Inc., 341 NLRB No. 24 (2004), where a divided Board approved withdrawal of a petition that had been pending review by the Board and the union intended to file a second petition.
Board policies and procedures with respect to disclaimers and withdrawals including the effects thereof are set out in the Board’s Representation Casehandling Manual. See sections 11110–11118 (withdrawals) and sections 11120–11124 (disclaimers). See also Stock Building Supply, 337 NLRB 440 (2002); NLRB v. Davenport Lutheran Home, 244 F.3d 660 (8th Cir. 2001); and Baltimore Gas & Electric, 330 NLRB 3 (1999).
A withdrawal of a petition after an election and during consideration
of determinative challenge ballots does not affect the 1-year election bar
rule. E Center, Yuba Sutter Head
Start, 337 NLRB 983 (2002).