NLRB Standard for Employer Withdrawal of Union Recognition

In Levitz Furniture Co. of the Pacific, 333 NLRB No. 105 (Mar. 29, 2001), the National Labor Relations Board adopted a more stringent standard for employers to legally withdraw recognition of incumbent unions, overruling Celanese Corp., 95 NLRB 664 (1951). The board held that there were compelling legal and policy reasons why employers should not be allowed to withdraw recognition merely because they had uncertainty or disbelief concerning a union’s majority status. Under Levitz, an employer may unilaterally withdraw recognition from an incumbent union only if the union has actually lost the support of the majority of the bargaining unit employees. The Board also held that "Board-conducted elections are the preferred way to resolve questions regarding employees' support for unions." Therefore, to obtain a decertification election employers need only demonstrate reasonable good-faith uncertainty as to the union’s continued majority status. In other words, the standard for employer-filed decertification petitions will no longer be the same as for employer withdrawals of recognition. The decision comes in light of the 1998 US Supreme Court decision in Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998), which held that the good-faith doubt standard means a reasonable uncertainty about the union's majority status, not a good-faith disbelief of majority support as the board had argued. The Court also stated that the Board did not have to use the same standard for employer withdrawal of recognition, employer-filed decertification petitions, and employer polling of its employees and could rationally impose stricter requirements for withdrawing recognition or for polling. The Board reasoned in Levitz that neither the language nor the policies of the Act warrant allowing an employer to withdraw recognition from a union that has not actually lost majority support. Rather, it stated, this policy undermines the Act's policies of ensuring employee free choice and promoting stability in bargaining relationships. By establishing a lower standard for an election, the Board is attempting to promote the use of the election process as a way to decide employee desires. The decision did not address the standard for employer polling, so it remains whether the employer has good-faith doubt or uncertainty. Member Hurtgen disagreed with the decision to overturn Celanese, contending that Celanese offered "stability in the law and due regard for Section 7 rights," while the new standard "is imprudent and unfair."