NLRB General Counsel Proposes that Employers Not Be Able to Withdraw Recognition From a Section 9(A) Union Without A Board Election

Marianne Robbins

A 2001 NLRB decision, Levitz Furniture Co. of the Pacific, 333 NLRB 717, 2001 has allowed employers on their own to withdraw recognition from unions representing a majority of employees in a bargaining unit, if the evidence “clearly indicate[d]” that a union had “lost majority support.” The problem was employers often withdrew recognition when the union had not lost majority support and avoided bargaining for years while the issue was litigated.

Now NLRB General Counsel, Richard Griffin, has asked regional directors to argue that an employer cannot withdraw recognition on its own, but only on the results of an NLRB election after a petition is filed by an employer or employees. A draft legal argument attached to the General Counsel’s memo spells out the many reasons that the Levitz decision has failed to effectuate employee free choice of representation.

The argument describes many situations in which employers unilaterally withdrew recognition from unions but the evidence did not clearly indicate the union had lost majority status: where employees were coerced into signing petitions against the union or were misled by petitions which were confusing.  There were cases where the employer relied upon signatures that had been revoked and cases where the employees who signed were not within the bargaining unit.  In these cases, the employer was eventually required to recognize the union again.  However, in the meantime, employees lost their right to bargain for as long as five years, while the employer’s unlawful withdrawal of recognition was litigated.

In addition, cases challenging an employer’s withdrawal of recognition often required testimony concerning employees’ personal preferences with respect to union representation.  Such investigations interfered with the employees’ interest in confidentiality and might not be reliable since employees hesitated to state their support of the union in testimony before their employer.

Now it is clear that the election proceeding can usually resolve a challenge to union majority status more promptly than an unfair labor practice charge. In the past employer RM election petitions were often delayed by blocking unfair labor practice charges, so the election procedure was subject to the same delay as unfair labor practice proceedings.  Now under the new election rules, a party must affirmatively request that a charge block an election and must file an offer of proof in support of its charge including the names and anticipated testimony of its witnesses and must promptly make its witnesses available.  As a result, there has been a decrease in blocking charges of just over 40%.

The General Counsel argues the proposed new rule is more consistent with the principle that elections are the preferred means of testing employee support for a union. See U.S. Supreme Court in Linden Lumber Division vs. NLRB, 419 U.S. 301 (1974). It is also more consistent with the statutory framework of the Labor Management Relations Act which provided for employer filed election petitions. Indeed early case law required employers to use the election procedure if they had a good faith doubt that a union continued to have majority support.

Most importantly if, as proposed, employers cannot withdraw recognition by claiming union loss of majority support but must go through an NLRB election first, unions and employees will no longer subject to unilateral refusal to bargain for claimed loss of majority status. Such claims will be decided by a prompt election under the new rules.