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NLRB GC suggests employers should only be able to withdraw union recognition based on decert election

By Lisa Milam-Perez, J.D.

Employers should only be allowed to withdraw recognition from a union after petitioning for an election, NLRB General Counsel Richard F. Griffin, Jr. argued this week, urging the NLRB to scrap its “problematic” Levitz Furniture framework for determining whether an incumbent union has lost majority support and instead impose an election requirement as the sole means of making the requisite showing. And he directed the Board’s regions to take up the cause.

“Peril” for employers? The NLRB’s 2001 decision in Levitz Furniture Co. of the Pacific barred an employer from withdrawing recognition from an incumbent union unless it was able to objectively show by a preponderance of the evidence that the union had lost the support of a majority of bargaining unit employees. The Board said it would revisit this approach, though, if experience showed that it does not effectuate the purposes of the Act. According to Griffin, the last 15 years have indeed shown that the Levitz Furniture standard is unworkable. Employers have not restricted themselves to withdrawing recognition only when the evidence “clearly indicates” a lack of support for the union, he notes, and the Levitz test has “created peril for employers in determining whether there has been an actual loss of majority support” for a union. The result has been “protracted litigation undermining the core purposes of the Act.”

Moreover, the existing framework does not further the NLRA’s statutory goals of “promoting stable bargaining relationships and employee free choice,” Griffin added. “In short, the experience under Levitz has not yielded the results that the Board anticipated and intended,” he writes. Also, an election requirement is more aligned with the oft-stated principle that “Board elections are the preferred means of testing employees’ support.”

Directive to regions. When it issued its ruling 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 that would “fairly and efficiently” determine the union’s level of support. Seeking to “place the issue before the Board” anew, Griffin in a May 9 General Counsel Memorandum (GC 16-03) directed the regions to 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.” Specifically, he instructed that when issuing complaints alleging an employer has unlawfully withdrawn recognition under extant Board law, the regions also should plead in the alternative that the employer unlawfully violated Section 8(a)(5) by “unilaterally withdrawing recognition absent the results of a Board election.”

To that end, Griffin presented the regions with model provisions to include in briefs to the agency’s law judges and to the Board itself. The model brief goes on to outline a host of ways in which the Levitz framework has undermined employees’ choice of bargaining rep.

Ambush rules support the change. An election requirement is even more appropriate now, according to Griffin’s model brief, because the NLRB’s revised election rules have streamlined the election process. In the past, the Board’s blocking charge procedure had posed a significant drawback in using RM elections as a prerequisite for withdrawing recognition, Griffin pointed out, because of the potential delay in proceeding to an election. However, the new election rules allay this concern, as the initial data shows that the number of blocking charges has been sharply reduced since enactment of the revised election rules in April 2015.