NLRB General Counsel Seeks to Prohibit Employers from Unilateral Withdrawal of Union Recognition

The National Labor Relations Board’s General Counsel recently released Memorandum GC 16-03 (May 9, 2016), proposing to make it more difficult for an employer to withdraw recognition of an incumbent union. This memorandum directs the Board’s regional offices to treat an employer’s withdrawal of union recognition without a Board-supervised election as a violation of the National Labor Relations Act (“the Act”). Under the new rule proposed by the memorandum, an election would be required even if the employer possesses objective evidence that a union has lost majority support. This is a departure from the standard previously established by the Board in the seminal case of Levitz Furniture Company of the Pacific, Inc., 333 NLRB 717 (2001).

The Board rejected a similar proposal by the General Counsel fifteen years ago in Levitz. Before Levitz, an employer could unilaterally withdraw recognition of an incumbent union based on a good faith belief concerning the union’s loss of majority support. The Board in Levitz continued to allow unilateral withdrawal of union recognition, but required objective evidence of the union’s loss of majority support before withdrawal could occur. However, the Board left open the possibility of revisiting the issue if its revised standard did not prove effective for the purposes of the Act.

The General Counsel now wishes to revisit the issue, stating that the Levitz standard has proven problematic. The General Counsel proposes that the Levitz standard has failed to promote stable bargaining relationships and negatively impacts employees’ ability to make decisions regarding union representation. Under Levitz, an employer’s basis for unilateral withdrawal of union recognition could still be challenged by a union through filing an unfair labor practice charge with the Board.  The General Counsel proposes that such charges have resulted in years of unnecessary litigation. The General Counsel further proposes that the new requirement of Board-supervised elections will benefit employers, employees, and unions alike by mandating a fair and efficient mechanism to determine whether an incumbent union actually retains majority support.

The General Counsel’s new proposal seeks to eliminate unilateral withdrawals of union recognition so that an employer can only withdraw recognition following a Board-supervised “RM” or “RD” election. An RM election follows a petition made by the employer to the Board. Such a petition can be made if the employer has a good faith doubt about the incumbent union’s majority support. An RD election follows a petition made by  employees to the Board. The employer cannot solicit or substantively assist employees in creating or signing such a petition. Any involvement by the employer involving more than ministerial assistance will automatically taint the petition and render it and any resulting election invalid. The majority of employees who vote in either type of election must vote against the union in order for an employer to withdrawal recognition.

Regardless of whether the General Counsel’s new proposal is adopted by the Board, employers should proceed with caution. Even before the issuance of this memorandum, the Board was skeptical of unilateral withdrawals of union recognition, and it has been difficult to establish the type of evidence necessary for withdrawal to be successful. As a result, it has been a safer practice to request a Board-supervised election. With the issuance of this memorandum, regional offices will now treat unilateral withdrawals of union recognition as violations of the Act. Even if the Board were to ultimately reject the General Counsel’s proposal, it would only be after lengthy and costly litigation on the issue.  Moving forward, employers should seek experienced counsel before making decisions in this regard.

For more information, please contact James J. McGovern, III, Chair of the Labor Law and Alcohol & Regulated Products Law Practice Groups, Genova Burns LLC, at jmcgovern@nullgenovaburns.com.