8. DISCLAIMER OF INTEREST AND WITHDRAWAL OF

PETITION 

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. 

8-100 Disclaimer 

332-2500 et seq. 

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 Ogden Enterprises, 248 NLRB 290 (1980). Windee’s Metal Industries, 

309 NLRB 1074 (1992). 

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 Ogden Enterprises, supra. 

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 

71
72 DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 

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 Co., supra. 

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 (Mission Valley), 140 NLRB 433, 442 (1963).

This is particularly true when the union resumes picketing after “a very brief hiatus” (Gazette 

Printing Co., supra). The holding that the picketing in Gazette had a recognitional objective, 

however, was explicitly based on the particular facts of that case, and in no way modified the 

position, set forth in Auto Workers (Fanelli Ford), 133 NLRB 1468 (1961), that picketing for 

reinstatement does not necessarily have a recognitional object. (Gazette Printing Co., supra at fn. 

5.) See also Don Davis Pontiac, 233 NLRB 853 (1977). For further discussion of hiatus, see 

Philadelphia Building Trades Council (Altemose Construction), 222 NLRB 1276 (1970), and

Electrical Workers IBEW Local 453 (Southern Sun), 242 NLRB 1130 (1979). 

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
DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 73

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 Texas Bus Lines, 277 NLRB 626 (1985). Cf., 

McClintock Market, supra at fn. 4; Brazeway, Inc., 119 NLRB 87, 88 fn. 3 (1958); O’Connor

Motors, 100 NLRB 1146 fn. 1 (1951); and Felton Oil Co., 78 NLRB 1033, 1034 (1948). 

8-200 Withdrawal 

332-5000 et seq. 

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 Co., 112 NLRB 288, 289 (1955). See also Baltimore Gas & 

Electric, 330 NLRB 3 (1999), where a Board majority permitted withdrawal after a second

election. The withdrawal request came more than 12 months after the second election and at the 

time of the request, the Board was considering challenges and objections arising from that second 

election. And in Mercy General Hospital, 336 NLRB 1047 (2001), the Board approved

withdrawal of RC petitions on a showing that the petitioner and employer agreed to voluntary 

recognition. The settlement also involved a vacating order of an earlier Board decision. 

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. Id. at 459. See also Denver Publishing Co., 238 NLRB 207 

(1978). 

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. 

8-300 Effect of Disclaimer or Withdrawal 

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
74 DISCLAIMER OF INTEREST AND WITHDRAWAL OF PETITION 

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).