Proposed Changes to Board Law on Employer’s Unilateral Withdrawal of Recognition

Recently, the NLRB General Counsel issued a memorandum to Regional Directors, Officers-in-Charge, and Resident Officers recommending an alternative theory to plead and argue when challenging an employer’s withdrawal of recognition.

Under current precedent, an employer may unilaterally withdraw recognition of an incumbent union if it has objective evidence that the union has actually lost majority support. See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717 (2001). The GC now proposes a new framework that was rejected in Levitz: requiring election results to prove the union’s loss of majority support. In proposing this previously rejected framework, the GC points out that in Levitz, the Board left open the possibility of revisiting this issue.

To effectuate this new approach, the GC urges Regions to plead an alternative theory of violation: “that the employer violated Section 8(a)(5) by unilaterally withdrawing recognition absent the results of a Board election.” Memorandum GC 16-03.

The GC claims this change will benefit employers, employees and unions. The GC notes the existing “peril for employers” to determine whether a union has actually lost majority support, which can result in “years of litigation over difficult evidentiary issues.” Memorandum GC 16-03.

What does this mean for employers? The proposed change would preclude an employer from unilaterally withdrawing recognition without an employee petitioning for, and the employees voting in favor of decertification or an employer filing an RM petition. On one hand, a bright-line test that definitively establishes an employer’s right to unilaterally withdraw recognition may be a welcome change. The problem with this proposal, however, is that a union can simply file unfair labor practice charges to block any election. This proposal likely would mean one thing – an employer would have no ability to oust a union even if the majority of the employees no longer wish to be represented by it.