National Labor Relations Board (“NLRB” or “Board”) General Counsel Richard F. Griffin, Jr.,[i] has asked the NLRB to place further restrictions on an Employers’ right to unilaterally withdraw recognition, and has directed the NLRB’s regional offices to argue that any unilateral withdrawal of recognition of a union is unlawful, absent a Board election. Griffin’s request is set forth in Memorandum GC 16-03.[ii]
Summary of General Counsel Griffin’s Directive
In the 2001 decision Levitz Furniture Co. of the Pacific,[iii] the Board rejected the General Counsel’s attempt to prohibit employers from withdrawing recognitions absent a Board election, but held an employer could not withdraw recognition from an incumbent union unless the employer can show with clear objective evidence that the union no longer had support of a majority of unit employees. Griffin asserted in his Memorandum that the Levitz Furniture framework is “problematic” because it creates uncertainty for employers to determine whether a union actually has lost majority support, has resulted in protracted litigation, and has delayed employees’ ability to obtain representation.
Griffin urged the NLRB to adopt a rule permitting an employer to lawfully withdraw recognition only when: (1) the employer has reached an agreement with the parties to withdraw recognition; or (2) a Board election shows the union lacks majority support of unit employees. To effectuate his request, Griffin stated that where complaints have been issued that an employer has withdrawn recognition in violation of Levitz Furniture, the regional offices should alternatively plead that the employer violated the Act by withdrawing recognition absent a Board election.
Practical Takeaways for Unionized Employers
The General Counsel’s request, if adopted, will foreclose an employer’s ability to withdraw recognition even where abundant, irrefutable evidence demonstrates the union no longer has majority support of the bargaining unit. Board law already makes it extremely difficult for an employer to unilaterally withdraw recognition. Unilateral withdrawal of recognition may occur only when there is no longer a “conclusive presumption of majority status”—namely, when the parties’ collective bargaining agreement (“CBA”) has expired and the parties have not agreed to a new CBA; or when at least three years have passed under a CBA having a duration of more than 3 years.[iv] Under Levitz, an employer may unilaterally withdraw recognition under these circumstances only when objective evidence “clearly indicates” the union lacks majority support.[v]
As always, employers with evidence that an incumbent union lacks majority support should consult with counsel before attempting to withdraw recognition or decertify. Given the General Counsel’s directive, other methods for obtaining decertification—namely, through a decertification petition filed by employees,[vi] or an employer-filed petition challenging a union’s majority status[vii]—may be more viable options than unilateral withdrawal of recognition. However, each of these approaches has its own limitations and requirements, which should be discussed with counsel.
Practical Takeaways for Non-Union Employers
The proposed restriction is properly seen as part of the NRLB’s efforts to foster increased union representation through union-friendly procedures, rules, and case law. Given this trend, employers whose employees are not represented by a union would be well served to take proactive steps to diffuse possible demand for a union by, among other things, understanding and responding to employees’ concerns and grievances.
[i] The NLRB’s General Counsel is appointed by the President and is responsible for investigating and prosecuting unfair labor practice cases and for the general supervision of the NLRB field offices with regard to processing cases. (https://www.nlrb.gov/who-we-are/general-counsel).
[iii] Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717, 725 (2001).
[iv] Shaw’s Supermarkets Inc., 350 NLRB No. 55, 586 (2007).
[v] Levitz Furniture, 333 NLRB at 717.
[vi] A decertification petition (“RD petition”) may be filed where: (1) at least 30% of bargaining-unit employees sign the decertification petition; and (2) the petition is filed either between 60 and 90 days before a collective bargaining agreement expires, or after an agreement expires. See 29 U.S.C. § 159(c)(1)(A); https://www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-represented-union/decertification-election. An employer should play no role in the solicitation, creation, circulation, or direct support of a decertification petition.
[vii] An employer may file a petition challenging the majority status of a union (“RM petition”) if: (1) the employer has a good-faith doubt or uncertainty—supported by specific and objective evidence—that the union continues to represent a majority of employees; and (2) the petition is filed between 60 and 90 days before a collective bargaining agreement expires, or after an agreement expires. See 29 U.S.C. § 159(c)(1)(B).