NLRB General Counsel Urges Board To Eliminate Mechanism for Ousting Unwanted Union

May 17, 2016Alerts Labor and Employment Alert

NLRB General Counsel Richard Griffin, Jr. has instructed regional directors and field staff to urge the Board to eliminate a longstanding avenue for decertifying an incumbent union that has lost majority support.

The General Counsel’s directive, issued in a May 9 memo, takes aim at a process known as “withdrawal of recognition” and is the latest in a series of actions by the National Labor Relations Board to promote Union interests over those of employers and employees.

What is Withdrawal of Recognition?

Employers historically have had the right under the National Labor Relations Act to withdraw recognition from an incumbent union that no longer enjoys support from a majority of bargaining unit employees at any time when such withdrawal was not precluded by law. Though perhaps not widely known outside the labor management bar, unilateral withdrawal of recognition is well-established under the NLRA and has been recognized by the U.S. Supreme Court (see Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998)).

Indeed, for nearly 50 years, from the Board’s decision in Celanese Corp., 95 NLRB 664 (1951) until 2001, an employer could lawfully withdraw recognition from an incumbent Union if it had a “good faith doubt” about the Union’s majority status.

In 2001, in Levitz Furniture Co. of the Pacific, Inc., the Board affirmed an employer’s right to withdraw recognition from an incumbent union subject to certain limitations described below. In so doing, however, the Board held that an employer could no longer withdraw recognition based only on a “good faith doubt” of the Union’s continued majority status. Instead, it could do so only if it could present clear, objective evidence that the Union actually had lost the support of the majority of employees in the bargaining unit it represented.

In “raising the bar” on the evidence required for unilateral withdrawal of recognition, the Board expressed its preference that questions concerning a Union’s representational status be resolved through the Board’s election procedures, culminating in a secret ballot election supervised by an agent of the NLRB. In the context of a challenge to an incumbent union’s majority status, the Board’s election procedures may be initiated through a petition filed by an employee (RD) or an employer (RM).

Post-Levitz, proof of the Union’s loss of majority support typically takes the form of a petition signed by a majority of bargaining unit employees. Under the NLRA, an employer may not sponsor, solicit or assist in the circulation of any such petition. Moreover, an employer may not withdraw recognition during the first three years of a collective bargaining agreement, or during the first year after the Union has been recognized or certified. Additionally, an employer may not withdraw recognition from a Union where the employer has committed various unfair labor practices which, in the eyes of the Board, may have caused the employees’ disaffection toward the Union.

Despite its long legacy in NLRA jurisprudence, unilateral withdrawal of recognition has been viewed as controversial in some circles and generally despised by Unions and their counsel.

Reconsidering the Levitz Framework Means Eliminating Withdrawal of Recognition

In GC Memo 16-03, General Counsel Griffin prescribes a new procedure for NLRB regional offices to follow in cases where the region has decided to issue a complaint under existing law that an employer has violated the NLRA by unlawfully withdrawing recognition from an incumbent union. In such cases, regional offices are instructed to request, as an alternative theory of liability, that the Board adopt a rule that an employer may withdraw recognition from an incumbent Union based only on the results of an NLRB election, absent a contrary agreement of the parties.

Accordingly, for the time being, in cases where the regional office does not find that employer’s unilateral withdrawal of recognition violates the Act under existing law, the pertinent allegations still should be dismissed.

The General Counsel’s “alternative theory of violation” is just that — an alternative to a theory of violation recognized under current Board law. The danger for employers and employees is that, sooner or later, a withdrawal of recognition case is likely to make its way up to the Board. And, if the Board’s recent decisions favoring unions are any guide, the continuing viability of withdrawal of recognition as an avenue to de-unionization is very much in doubt.

Download a copy of GC Memo 16-03.

For additional information on this topic, please contact Robert C. Nagle at 215.299.2064 or [email protected] or any member of Fox Rothschild’s Labor and Employment Department.