The NLRB's General Counsel is pushing to make it more difficult for an employer to withdraw recognition from a union, arguing that Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) hasn't worked out well in practice and fails to promote stable bargaining relationships and employee free choice. In Memorandum GC 16-03 (May 9, 2016) the GC said:
This memorandum sets forth the new procedure that Regions should follow after making a determination to issue complaint alleging that an employer has violated Section 8(a)(5) by unlawfully withdrawing recognition from an incumbent union absent objective evidence that the union actually had lost majority support. This procedure includes pleading an alternative theory of violation in the complaint and incorporating the attached model argument into the briefs submitted to administrative law judges and the Board.
Extant Board law permits employers to unilaterally withdraw recognition from an incumbent union based on objective evidence that the union has actually lost majority support. See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717 (2001). In Levitz, the Board rejected the General Counsel’s position that employers should not be permitted to withdraw recognition absent the results of Board elections. Rather, it adopted a framework that increased the showing required of employers to unilaterally withdraw recognition and decreased the showing required for obtaining RM elections, anticipating that employers would be likely to withdraw recognition only if the evidence before them “clearly indicate[d]” that a union had “lost majority support.” Id. at 726. However, the Board noted that it would revisit this framework if experience showed that it did not effectuate the purposes of the Act. Id. at 726.
Experience has shown that the option left available under the Levitz framework for employers to unilaterally withdraw recognition has proven problematic. It has created peril for employers in determining whether there has been an actual loss of majority support for the incumbent union, has resulted in years of litigation over difficult evidentiary issues, and in a number of cases has delayed employees’ ability to effectuate their choice as to representation. As a result, Levitz has failed to serve two important functions of federal labor policy noted in that decision, specifically, promoting stable bargaining relationships and employee free choice. Id. at 723-26.
In order to best effectuate these central policies of the Act, Regions should request that the Board adopt a rule that, absent an agreement between the parties, an employer may lawfully withdraw recognition from a Section 9(a) representative based only on the results of an RM or RD election. This proposed rule will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support. Moreover, the proposed rule is even more appropriate now because the Board’s revised representation case rules have streamlined the election process.
Thus, in order to place this issue before the Board, in cases where a Region has made a determination to issue complaint alleging that an employer has violated Section 8(a)(5) by unilaterally withdrawing recognition under extant law, it should also plead, in the alternative, that the employer violated Section 8(a)(5) by unilaterally withdrawing recognition absent the results of a Board election. Regions should also include in their briefs to administrative law judges and to the Board the model brief section attached below.
This is a pro-union move, and would create a bright-line rule that would reduce litigation and delay.