Under the NLRB's present rules, to be effective employer
withdrawal must be (1) timely, (2) unequivocal, and (3) in writing.
The "appropriate time" for withdrawal is any time "prior to the date set by the contract for modification, or to the agreed-upon date to begin multiemployer negotiations." The bargaining agreement usually has a definite period wherein the employer may withdraw or the contract renews (a/k/a an evergreen clause) - and these must be strictly followed. Hence, once negotiations for anew multiemployer contract have begun, withdrawal will no longer be recognized by the NLRB and the employers must thereafter negotiate in good faith in the multiemployer unit. With respect to the second element, "unequivocal intent," as defined by the NLRB, means not only that an employer must express clearly its decision to withdraw,
but also that such a decision "must contemplate a sincere abandonment,with relative permanency, of the multiemployer unit and the embracement of a different course of bargaining on an individual-employer basis." An employer, therefore, who continues to participate in joint negotiations contrary to its expressed desire to bargain individually has not unequivocally withdrawn from group bargaining. Moreover, "unequivocal intent" also includes the element of good faith, in the sense that withdrawal must not be frivolously employed merely "as a measure of momentary expedience, or strategy" devoid of any serious desire or
intention to bargain on a single employer basis. Finally, besides being timely and unequivocal, an effective withdrawal must be made in writing; a written communication to the union clearly expressing the employer's decision to withdraw from the existing multiemployer unit is sufficient.
However, the foregoing rules governing the time and manner of
employer withdrawal are subject to several qualifications. First,withdrawal from a certified multiemployer unit will not be permitted for a reasonable period of time, normally one year, after NLRB certification of the unit.Secondly, the Board's withdrawal rules are inapplicable (1) where the union consents expressly or impliedly to the employer's withdrawal,or (2) where inthe Board's view "unusual circumstances" warrant an exception to its general rules. Under the union consent exception, compliance with the withdrawal rules is unnecessary where the union by tacit agreement or by actually bargaining with an employer on a single employer basis recognizes an otherwise ineffective withdrawal. The exception for "unusual circumstances"is presently undefined, there having been no decisions allowing withdrawal on this ground.
Now this is all separate from multi-employer pension withdraw liability -essentially the withdrawing employer would owe a pro rata share of the pension fund's outstanding unfunded liability; regardless of whether the employer has kept up with its contractually required contributions...this is usually a hard one for withdrawing employers to swallow because the liability can be significant. It is advisable that the employer contact the plan administrator(which is a separate entity from the union) for an estimate of withdraw liability before it decides to go that route.