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May 11 — National Labor Relations Board General Counsel Richard F. Griffin has instructed regional offices to argue in unfair labor practices cases that the board should adopt a rule that significantly limits the right of an employer to withdraw recognition from a union that represents its employees.
In a May 9 memorandum to regional directors and field office heads, Griffin said current board law permits an employer to withdraw recognition from a union based on objective evidence the union has actually lost majority support of employees in a bargaining unit. That approach has “proven problematic,” Griffin said.
The general counsel wrote in Memorandum GC 16-03 that NLRB offices should urge the board to rule that “absent an agreement between the parties, an employer may lawfully withdraw recognition from a Section 9(a) representative based on the results of an [NLRB]… election.”
Griffin said that in Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 166 LRRM 1329 (2001), the board rejected the general counsel's argument that employers shouldn't be permitted to withdraw recognition from unions that represent employees under Section 9(a) of the National Labor Relations Act absent election results showing employees had opted to reject union representation.
The Levitz board adopted a framework for analyzing employer withdrawals, but “the Board noted that it would revisit this framework if experience showed that it did not effectuate the purposes of the Act,” Griffin said.
In fact, the Levitz standard has created “peril” for employers and delays in employee efforts to act on their choices as to union representation, he said.
Griffin said changing the board's approach “will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support.”
The proposed rule “is even more appropriate now because the Board's revised representation case rules have streamlined the election process,” the general counsel said.
If a regional office decides to issue an unfair labor practice complaint alleging an employer has violated Section 8(a)(5) of the NLRA by withdrawing recognition under current board law principles, it should add an alternative allegation that the employer violated the act by unilaterally withdrawing recognition absent the results of an NLRB election, he said.
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Text of Memorandum GC 16-03 is available at http://src.bna.com/eUa.
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