NLRB Union Memo Puts Employee Rights at Serious Risk


Steven M. Swirsky, a Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Law360 titled “NLRB Union Memo Puts Employee Rights at Serious Risk.” (Read the full version – subscription required.)

Following is an excerpt:

If the general counsel is able to convince the board to overturn Levitz Furniture the result will likely be a serious impairment of the right of employees to decide whether or not they want to continue to be represented. The general counsel’s decision to seek to overturn Levitz Furniture should not come as a surprise to those who have read his last GC Memo, 16-01, in which he notified the agency’s regional offices of the issues that they must submit to the Division of Advice in the General Counsel’s Office for Guidance. In that memo, issued last month, the general counsel laid out the road map of his “initiatives and/or priority areas of the law and/or labor policy” and where in his view “there is no governing precedent or the law is in flux.

Reading the model language included in GC Memo 16-03, it is clear that the general counsel sees the question of what must happen before an employer may lawfully withdraw recognition to be such an area in “flux” as he references statements in the Levitz Furniture decision in 2001 that if “experience proved” to a future board that employers were unilaterally withdrawing recognition in the absence of “evidence” clearly indicating that a union had lost majority support, the board would revisit this question. While the general counsel implies that this is why he now wants the board to revisit the question, GC Memo 16-03 and the model brief language does not point to such evidence.

See also Mr. Swirsky's Management Memo blog post "NLRB Looks to Make It Harder for Employees to Decertify Unions."