Seyfarth Synopsis: The NLRB’s General Counsel seeks to impede an employer’s ability to extract a union that lacks the support of a majority of bargaining unit members by requiring in all cases a decertification election prior to withdrawal of recognition absent union agreement.

NLRB General Counsel Richard Griffin wants the Board to review its current rule of permitting employers unilaterally to withdraw recognition from a union based on objective evidence that it has lost majority support. In a May 9, 2016 memorandum, Griffin argues that this current rule, referred to as the Levitz Furniture framework, frustrates the purpose of the NLRA by failing to promote bargaining relationships and employee free choice. (Memorandum GC 16-03; Levitz Furniture Co. of the Pacific, 333 NLRB 717, 717 (2001)).

Griffin seeks for the Board to adopt a new rule that an employer may lawfully withdraw recognition from a union based only on the results of a Board-sanctioned election. In other words, objective evidence of loss of union support would no longer be a sufficient basis. The memorandum instructs Regional Directors on how to bring the issue to the Board procedurally and includes a model argument section for Regional Directors to include into their briefs to the Board.

Although Griffin claims that this proposed rule will benefit “employers, employees, and unions alike,” in reality, it would likely simply make it harder and more labor-intensive for employers to rid themselves of a union that no longer has the support of its employees. Stay tuned for the influx of cases.