NLRB Adopts New Standard Under Which Employers May Unilaterally Withdraw Recognition From Incumbent Union

For 50 years, the National Labor Relations Board (the “NLRB”) has held that an employer may lawfully withdraw recognition unilaterally from an incumbent union if the employer has a good faith doubt, based on objective considerations, that the union no longer represents a majority of the bargaining unit employees. In a landmark decision last week, the NLRB adopted a much more stringent standard, holding that an employer may lawfully withdraw recognition only where the union has actually lost the support of a majority of the unit employees. Levitz Furniture Co. of the Pacific, 333 N.L.R.B. No. 105 (3/29/01). In the same decision, however, the NLRB made it easier for employers to obtain an NLRB-conducted election to ascertain whether the union continues to enjoy majority support.

In the Levitz case, the employer was party to a collective bargaining agreement that expired on January 31, 1995. In December 1994, Levitz received a petition apparently signed by a majority of bargaining unit employees stating that they no longer wanted union representation. Based on the petition, Levitz informed the union that it would honor the existing agreement but withdraw recognition when the agreement expired. The union responded that it was in possession of objective evidence showing that it continued to represent a majority of the bargaining unit employees. Levitz did not ask to examine the alleged evidence of majority status and the union did not supply the evidence to the employer. Applying the traditional standard for withdrawal of recognition, the NLRB found that, based on the petition it received, Levitz had a good faith doubt that the union continued to represent a majority of its employees and lawfully withdrew recognition when the bargaining agreement expired. However, the NLRB cautioned that under the new standard adopted in this case, even an employer that has objective evidence that the union has lost majority support (such as the petition on which Levitz relied), the employer withdraws recognition “at its peril” and will be guilty of an unfair labor practice in the event it turns out that, in fact, the union continues to represent a majority.

As an alternative to unilaterally withdrawing recognition, an employer which doubts the union’s majority status may, in some circumstances, file a petition with the NLRB (referred to as an “RM” petition) and obtain an NLRB-conducted election. In its decision in Levitz, the NLRB also addressed the standards an employer must meet to obtain such an election. Reasoning that elections are the preferred way to resolve questions regarding employee support for incumbent unions, the NLRB adopted a more lenient standard for permitting employers to file an RM petition and obtain an election. The NLRB ruled that an employer may obtain such an election merely by showing “good faith reasonable uncertainty” as to an incumbent union’s continued majority status. The NLRB noted that evidence establishing “employer uncertainty” might include antiunion petitions signed by unit employees, firsthand statements by employees expressing their personal opposition to an incumbent union, employees’ “unverified statements” regarding other employees’ antiunion sentiments, and employees’ statements “expressing dissatisfaction with the union’s performance as the bargaining representative.”

It is clear by its decision that the NLRB seeks to encourage employers who wish to test a union’s majority status to use the NLRB’s election procedures rather than the “more disruptive process” of unilateral withdrawal of recognition. To this end, the NLRB has placed the burden of proof on the employer to rebut the union’s continued presumption of majority status by showing actual loss of majority if the union contests the withdrawal of recognition. If the employer fails to meet that burden, a withdrawal of recognition will violate the employer’s duty to bargain under the National Labor Relations Act and, if challenged, the withdrawal of recognition will be invalidated and the union’s continued status as bargaining representative confirmed by the NLRB.

Please contact any of our attorneys if you wish to discuss any of the implications of this landmark decision.