National Labor Relation Board General Counsel Richard F. Griffin has issued a Memorandum to NLRB Regional Directors, Officers-in-Charge, and Resident Officers proposing a dramatic change in Board law on whether, and under what circumstances, an employer may unilaterally withdraw recognition from a union representing its employees. Memorandum GC 16-03 (May 9, 2016).  If adopted by the Board, a unilateral withdrawal would be unlawful unless it follows an employer victory in a Board-supervised “RM” election (following an employer’s filing a petition for an election because it has a good faith doubt about the incumbent union’s majority support) or “RD” election (following an employee’s filing a petition for an election seeking to oust the incumbent union).

Fifteen years ago, in Levitz Furniture Company of the Pacific, Inc., 333 NLRB 717 (2001), the Board rejected a similar proposal by the then-General Counsel.  In that case, the Board held that “an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees,” based on objective evidence. It “rejected the General Counsel’s position that employers should not be permitted to withdraw recognition absent the results of Board elections.”  The Board sought to encourage reliance on NLRB-conducted elections, but not bar employers from acting unilaterally where evidence indicated a union actually had lost its majority.

The current proposal by the General Counsel would have the Board reverse the Levitz decision, barring any lawful unilateral withdrawal of recognition by an employer.  Indeed, the Memorandum urges all Regional offices to treat such unilateral withdrawals as a violation of Section 8(a)(5) of the National Labor Relations Act. It also exhorts the Regions to “include in their briefs to administrative law judges and to the Board [a] model brief section” on these issues prepared by the General Counsel and attached to the Memorandum.

In support of this proposed new rule, the General Counsel points out, among other things, that the Board in Levitz left open the possibility that it would reconsider its holding in that case “if future experience proves” the Levitz rule unworkable or contrary to the purposes of the Act.  He also argues that “[e]xperience has shown that the option left available under the Levitz framework . . . has proven problematic” and that “[t]his proposed rule will benefit employers, employees, and unions alike . . . .” His memorandum, however, does not explain these conclusions.  Employers may be skeptical  that the elimination of a rule that permits an employer to unilaterally withdraw recognition from a union that has lost its employees’ support, thus permitting it to relieve employees of a representative they no longer want, would benefit it or its employees.  Nevertheless, whether the General Counsel’s belief is borne out remains to be seen.

 

 

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.