NLRB May Raise Bar For Employers to Oust Unions

Companies seeking to oust a union that’s no longer supported by most workers could soon face a new obstacle.

Currently an employer may stop dealing with a union when a contract comes up for renewal. Management just needs objective evidence – typically a petition – that a majority of workers no longer support it. But the NLRB’s top lawyer wants to raise the bar companies must cross to withdraw recognition.

In a May 9 memo, National Labor Relations Board general counsel Richard F. Griffin Jr. instructs the agency’s regional directors to raise a new argument when companies unilaterally withdraw union recognition. He believes employers should first seek a formal decertification election — and continue to deal with the union until winning the ballot battle.

In the memo, GBallot-boxriffin contends this would be better for companies by eliminating uncertainty and lessening delay and litigation.

The current board law “has created peril for employers in determining whether there has been an actual loss of majority support for the incumbent union, has resulted in years of litigation over difficult evidentiary issues, and in a number of cases has delayed employees’ ability to effectuate their choice as to representation.”

The new standard, he contends, “will benefit employers, employees, and unions alike by fairly and efficiently determining whether a majority representative has lost majority support.”

But management-side labor lawyers generally see this as a move to strengthen the hand of unions by forcing companies to continue bargaining with a union that may no longer have much support.

And the NLRB could go along with Griffin, says one expert.

As long as three of the five board members are Obama appointees, “I think there is probably a good chance … the board would be receptive to the general counsel’s argument here,” said labor attorney Steven M. Swirsky, a member of the firm at Epstein Becker & Green in New York.

The current practice was set by the board 15 years ago in a case involving Levitz Furniture Co. Now Griffin is instructing regional offices to disregard that standard and issue unfair-labor-practice complaints in future cases where employers unilaterally withdraw recognition and unions file charges, Swirsky says. That would eventually bring his argument for raising the standard in front of the board for a ruling.

Over the last 10 years, employers have won 70 percent of employer-requested decertification elections, NLRB records show. But requiring those elections often will mean a lengthy series of labor complaints and appeals by the union – even if few workers support it – before companies can withdraw recognition, Swirsky says. And while that’s dragging on, a company is stuck.

“You freeze the status quo in many respects,” he says. “That can be harmful for employees, too.”