In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding. 
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The Board’s recent decision in Merck, Sharp, & Dohme Corp., 367 NLRB No. 122 (May 7, 2019)  highlights the differences that can arise as a result of the collective bargaining process in the terms and conditions of employment for employers with a divided workforce of non-union and union-represented employees.  In Merck, the Board majority reversed the Administrative Law Judge’s ruling that the employer had violated Section 8(a)(3) and (1) by offering a new, one-time paid holiday, “Appreciation Day” to all of its non-union employees to the exclusion of its union-represented employees. 
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We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.  
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