By Memorandum GC 16-03, issued on May 9, 2016, the National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel, Richard Griffin, instructed the NLRB’s Regional Directors to issue a complaint in any unfair labor practice charge case where an employer has withdrawn recognition from a union and the withdrawal is based on anything other than the results of an NLRB conducted election. The full text of Memorandum GC 16-03 can be found here.
It is General Counsel Griffin’s position that a union should only lose recognition status based on the certified results of a Board election. The move is a significant departure from the current status of the law and one that would benefit unions at the expense of employees who may be trying to free themselves from ineffective and/or overbearing bargaining representatives.
For more than six decades, employers (and employees) have been able to rid themselves of unwanted unions without first having to go to the NLRB for approval to do so. For now, employers have the right to withdraw recognition from a union without an NLRB conducted election based on “objective evidence” that a majority of the employees represented by the union no longer want representation.
The current standard for withdrawing recognition was set by the NLRB 15 years ago in Levitz Furniture Co., 333 NLRB 717 (2001). In Levitz, the Board ruled that an employer could withdraw recognition based on only “objective evidence” that a majority of the represented employees no longer wanted the union. The ruling in Levitz narrowed the standard that had previously existed since 1951, which allowed withdrawal based on an employer’s “good faith belief” concerning loss of majority support. Celanese Corp. of Am., 95 NLRB 664 (1951).
By instructing the NLRB’s Regional Directors to issue complaints on withdrawal cases, General Counsel Griffin intends to again place the withdrawal issue squarely before the Board on appeal and to convince the Board that the standard in Levitz should be abandoned for the standard he has proposed, which would require a Board conducted election. The General Counsel has even appended to his memo model language that the Regions should use in drafting and presenting their arguments at hearings and in appeals presented to the Board. With the current status of the Board, it seems likely that the GC’s proposed standard will be adopted.
Employers faced with objective evidence that their employees no longer wish to be represented by their union(s) will need to think long and hard about whether they want to withdraw recognition, which will now undoubtedly land them in litigation at the NLRB. As always, HRLegalist urges our readers to consult legal counsel if faced with such a dilemma or if you have any questions about how this policy change may impact your business.
Thomas T. Hearn is an attorney in the Labor Relations and Employment Law Department at Obermayer where he concentrates his practice in labor and management relations, employment discrimination and employee contracts. He can be reached at 215.665.3013 or Thomas.Hearn@obermayer.com.