Tougher Standard for Withdrawing Union Recognition

The National Labor Relations Board has made it more difficult for unionized employers to become union-free. In its Levitz Furniture Company decision (.PDF file/348 KB), the Labor Board altered long-standing Board law about the circumstances in which an employer may lawfully withdraw recognition from a union which represents its employees.

Pre-existing law required only that employers have a "good faith doubt" based on objective factors about a union's 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 that majority's support. Reliable statements by employees about the union's lack of support was considered credible evidence of the union's lack of majority support.

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 memorandum, the Labor Board General Counsel (the NLRB's top attorney who decides what cases should be prosecuted), instructed attorneys in the Board'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. Where an employer has a collective bargaining agreement with the union which represents its employees, an employer may not lawfully withdraw recognition from the union until after the expiration of the contract.

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 has made it more difficult for employers to withdraw recognition, it is still a viable option where unionized employees have expressed a desire to become union-free.