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On November 26, 2008, NLRB General Counsel Ronald Meisburg issued a Guideline Memorandum concerning an employer’s withdrawal of union recognition due to a loss of majority support in the bargaining unit. The memorandum updates prior guidelines issued shortly after the Board’s decision in Levitz Furniture Co., 333 NLRB 717 (2001).
In Levitz, the Board held that an employer may lawfully withdraw recognition from an incumbent union only if it can prove with objective evidence that the union has actually lost majority support. The Board allocated the initial burden of proof concerning loss of majority support to the employer. Once the initial burden is met, the General Counsel may then present rebuttal evidence showing that the union enjoyed majority support at the time of withdrawal or that the employer’s evidence is unreliable. The burden then shifts back to the employer to establish actual loss of majority status.
This Guideline Memorandum clarifies two important points in withdrawal of recognition cases. First, it states that the Board will not issue complaints in cases where the General Counsel’s office or regional offices has objective evidence that the union has lost majority support, even if the employer has no such evidence.
Second, the memorandum clarifies what constitutes objective evidence sufficient to demonstrate actual loss of majority support. The evidence must be direct, untainted, and specific enough to show that a numerical majority of the bargaining unit - 50 percent or more - no longer supports the union. Thus, an anti-union petition signed by a majority of the bargaining unit that contains unequivocal language rejecting the union as a representative, a poll in which the majority of the bargaining unit rejects the union, or firsthand statements from a majority of bargaining unit employees rejecting the union are examples of objective evidence that would be considered sufficient to show loss of majority support. Circumstantial evidence of loss of majority support will be challenged as insufficient under Levitz.
The General Counsel’s office will determine on a case by case basis whether hearsay evidence of loss of majority status, such as hearsay evidence of employee sentiments or polling, is sufficient to demonstrate loss of majority support.