In yet another assault on long-established labor law precedent, on May 9, 2016, National Labor Relations Board (NLRB) General Counsel Richard Griffin ordered the issuance of NLRB complaints in every case in which an employer withdraws recognition from a union without the union first being decertified by the results of a secret ballot election. In General Counsel (GC) Memo 16-03, Griffin instructs the NLRB's Regional Directors, Officers-in-Charge, and Resident Officers to issue a complaint in any unfair labor practice case where an employer withdraws recognition from a union, even based on overwhelming "objective evidence" of loss of majority status, without being certified by the results of an NLRB-conducted secret-ballot election. For over six decades since the Board’s decision in Celanese Corp. of America, 95 NLRB 664 (1951), NLRB precedent has permitted employers to withdraw recognition from an incumbent union that no longer has the support of a majority of its members.
If Griffin's position is accepted in a decision of the Board—and that appears likely given the Board’s current composition and its record of overturning long-established labor law precedent at an alarming rate—the result would be to reject the Board's current legal standard in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). That decision authorizes employers to withdraw recognition from a union when presented with "objective evidence" (such as a signed petition from a majority of employees represented by the union) that the union no longer has the majority support of its members and that they no longer want representation. Experience has demonstrated that forcing a recognition decision through to a decertification election—which is often blocked from occurring by a union’s filing of alleged unfair labor practice charges, which then must be investigated and litigated—serves to delay and in some cases completely deny the will of employees to no longer be represented by an unwanted union that has lost majority support as their exclusive bargaining representative.
Given the position now taken by General Counsel Griffin, employers that withdraw union recognition without the results of an NLRB-conducted secret-ballot election, even in the face of overwhelming "objective evidence" of the union's loss of majority support, may face an NLRB complaint and litigation.