National Labor Relations Board (NLRB) General Counsel Richard Griffin wants the Board to declare it unlawful for employers to withdraw recognition from an incumbent union without an NLRB election. See GC Memorandums GC 16-01 (Mar. 22, 2016) and GC-1603 (May 9, 2016). This would be a major change from current Board law articulated in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), which permits employers to unilaterally withdraw recognition from an incumbent union based upon “objective evidence” that the union has lost majority support (i.e., typically a petition signed by a majority of bargaining unit employees indicating that they no longer wish to be represented by their union). The General Counsel’s proposed change will not become law unless it is adopted by a majority of the Board.

Levitz in a Nutshell

The National Labor Relations Act (the “Act”) makes it an unfair labor practice for an employer to refuse to recognize and bargain with the representative chosen by a majority of employees. The Act also forbids an employer from continuing to recognize a union it knows has lost majority support. In Levitz, the Board found an employer did not violate the Act by ceasing to recognize a union based upon receipt of a petition signed by a majority of the bargaining unit employees indicating they no longer wished to be represented by the union. Notably, the Board declined the former General Counsel’s invitation to adopt a new standard forbidding employers from withdrawing recognition without an NLRB-sanctioned election. The current General Counsel’s May 9, 2016 memo calls for the Board to adopt the same proposal rejected by the Levitz Board.

The Catch-22

To get the issue before the Board, the General Counsel has instructed Regions issuing Section 8(a)(5) complaints concerning recognition withdrawal issues under extant Board law to alternatively plead that Section 8(a)(5) was violated by unilaterally withdrawing recognition absent the results of a Board election. Since Regions will issue complaints against employers who withdraw recognition without an NLRB election, employers are left with the following unpalatable choices: (1) subject employees to an NLRB election and union campaign (while continuing to recognize the unwanted union until the election result is final); (2) commit a possible unfair labor practice by continuing to recognize an unwanted union it knows has lost majority support; or (3) immediately withdraw recognition and accept the risk and cost associated with litigating an NLRB charge. Rather than improve employee free choice, the proposed standard makes it harder for employers and employees to get rid of unwanted unions that have lost the support of a majority of employees.

A clear understanding of the law has always been important in this area of the law. The General Counsel’s memo raises the risks as well as the importance of closely consulting with counsel before deciding to withdraw recognition.