by Jackson Lewis
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. 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.
New standard. 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.
NLRB General Counsel Memorandum. 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.
Conclusion. 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. For more information
about withdrawal of recognition, please contact the Jackson Lewis attorney with whom
you regularly work, or Margaret Bryant, at 412-232-1156;
[email protected].