In a new enforcement memorandum, the NLRB General Counsel has directed the Regional Offices to pursue litigation opportunities to overturn existing law on withdrawal of union recognition. See Memorandum GC 16-03 (5/9/16). Under current law, an employer may withdraw union recognition when presented with objective evidence of an actual lack of majority support among the unit employees. Typically, this takes the form of a petition signed by a majority of the employees expressing a lack of support for the incumbent union. Now, the General Counsel wants to upend this time-tested legal standard by advocating for a new standard that a union can only be decertified through a Board-supervised election.
Technically, the GC’s enforcement position leaves the existing standard intact. An employer may still withdraw recognition based on objective evidence of a lack of actual majority support. However, if a Regional Office finds that a withdrawal was improper under the current standard, the Regional Office will also argue, in the alternative, that the current standard should be replaced with a new standard.
As the chief prosecutor of alleged labor law violations, the GC’s enforcement positions have significant sway on the future course of labor law. Of note, in recent years, the NLRB has accepted many of the GC’s novel interpretations of labor law, including in regards to email, social media, and joint-employer status under the NLRA.
With this memorandum, the GC seeks to reverse the Board’s holding in Levitz Furniture, 333 NLRB 717 (2001). In that case, the NLRB held that an employer could withdraw recognition of a union based on objective evidence of an actual lack of majority support. At the same time, Levitz held that employers could file for a decertification election based on a good faith doubt of majority status. The Levitz rule contained safeguards for both parties because it allowed a union to rebut the employer’s withdrawal of recognition with evidence of union support, or with evidence that the employer “tainted” the decertification petition. As such, the Levitz standard provided a fair framework that recognized the importance of employee free choice. In practice, it allowed employees to move quickly (and inexpensively) to oust a decidedly unpopular union.
The GC’s proposed new standard will eliminate the expedited decertification process. Instead, employees will be forced to follow the NLRB’s bureaucratic election procedures, which can entail years of litigation challenging the outcome of the vote. Unfortunately, anti-union employees can be seriously disadvantaged in an NLRB election process because they often lack the financial resources to pay for legal counsel to navigate the NLRB’s complex and onerous bureaucratic requirements. And the NLRB’s rules prevent employers from aiding employees in decertification efforts.
The GC’s new enforcement position is allegedly based on a preference for using the Agency’s election process to decide representational issues. However, in other contexts, the NLRB has held that a union relationship can be imposed without a Board election. For example, in Lamons Gasket, 357 NLRB No. 72 (2011), the NLRB imposed an election bar for a “reasonable period of time” following voluntary recognition. Similarly, in Central Illinois Construction, 335 N.L.R.B. 717 (2001), the NLRB held that a binding 9(a) relationship can be created in the construction industry based only on the parties’ contractual language. It is difficult to explain the Agency’s inconsistency on these points except as blatant favoritism for incumbent labor unions.
Thomas Lenz leads the firm’s private sector labor relations team. He is a recognized authority in all aspects of labor and employment law with noted expertise in collective bargaining and all issues pertaining to the National ...
L. Brent Garrett is a seasoned labor lawyer with 20 years of experience representing employers in complex labor relations matters. Mr. Garrett represents employers across all industries, including construction, healthcare ...
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