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Labor Board Toughens Standard for Employers Seeking to Withdraw Union Recognition

  • February 19, 2002

The National Labor Relations Board recently made it more difficult for employers of the approximately nine percent of private sector unionized employees to become union free. Altering long-standing law, the Labor Board redefined the circumstances in which an employer lawfully may withdraw recognition from a union based on the employer's belief the union no longer has the support of a majority of the employees it represents. Levitz Furniture Co. of the Pacific, Inc., 333 NLRB No. 105 (March 29, 2001).

Pre-existing law required only that employers have a "good faith doubt" based on objective factors about a union's continuing support among a majority of the members of the bargaining unit. This "good faith doubt" standard had been interpreted to require only that an employer have a reasonable uncertainty about the employees' majority support. Reliable statements by employees were considered to be reasonable evidence indicating the lack of majority support for the union.

In Levitz, the Labor Board changed the "good faith doubt" standard and now requires that an employer prove the union actually has lost majority support. This means that rather than "believe" the union has lost majority support, the employer actually must prove it.

In a recent NLRB memorandum, the Labor Board's General Counsel instructed attorneys in the NLRB's regional offices that "actual loss" could be established by "employees' firsthand statements regarding their own personal favor or opposition to the incumbent union, or an anti-union petition signed by a majority of unit employees." "Actual loss" also may be shown by "employees' and supervisors' statements regarding other employees' union sentiments." The General Counsel indicated that, where the evidence of "actual loss" is established solely or in part by statements by employees or supervisors regarding other employees' union sentiments, the General Counsel will give the case an added level of scrutiny. For employers, it is clear from the memorandum the preferred method of proving "actual loss" is by means of an anti-union petition.

Generally, when an employer has a collective bargaining agreement with a union representing the employees, the employer may not lawfully withdraw recognition until after the contract expires. Where an employer and a union are bargaining for a "first" contract, a withdrawal of recognition may not occur until after one year has passed from the date the union was certified as the employees' bargaining representative. Although the Labor Board now has made it more difficult for employers to show the absence of majority support, withdrawal of recognition is still a viable option where employees have expressed a desire to become union-free.

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