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By February 1, 2009No Comments

The General Counsel of the National Labor Relations Board (NLRB) has issued an updated guideline memorandum addressing when an employer may legally withdraw recognition from an incumbent union.

Background: In 2001, the NLRB issued its opinion in Levitz Furniture Co. of the Pacific, holding that an employer may withdraw recognition from a union where it can prove that the union has lost majority support from the employees in the bargaining unit. The NLRB General Counsel then issued a guidance memorandum on the processing of unfair labor practice (ULP) charges, alleging that the employer withdrew recognition unlawfully. After Levitz and the original General Counsel memorandum, other cases have explored the standard of proof that employers must meet in order to establish a loss of majority support. The newly issued General Counsel’s memorandum standardizes the approach set forth in these cases.

The General Counsel’s Guidelines: The General Counsel first confirmed its longstanding policy that ULP charges will be dismissed “when the General Counsel has sufficient objective evidence that the Union has lost majority support.” It went on to state that “objective evidence sufficient to demonstrate actual loss must be specific enough to show that a numerical majority of the unit no longer supports the union.” Examples of such objective evidence include a petition, a poll, or individual statements from unit employees; however, the General Counsel cautions that what constitutes sufficient evidence depends on the circumstances of the particular case. The General Counsel acknowledged that under certain circumstances, hearsay (i.e. not firsthand) evidence regarding the loss of support may be sufficient. Regional Offices are also directed to consider any allegations that the loss of support is tainted by improper employer conduct or whether there is countervailing evidence showing a continuation of majority support for the union.

The General Counsel noted that the wording of employee petitions is important. An employee petition entitled “showing of interest for decertification” was insufficient to establish actual loss of majority status, where evidence showed that many employees signed the petition in order to secure an election. On the other hand, a petition entitled “we, the undersigned, no longer wish to be represented by the union” was sufficient to establish loss of majority support.

Lessons Learned. To ensure that withdrawal of union recognition is deemed valid, employers should rely only on specific, numerically based evidence, such as petitions, polls, or individual written statements from employees. The employer should also confirm that the language contained or involved in such documents clearly sets forth the lack of support for the union.

Courtesy Worklaw® attorneys Shawe and Rosenthal