Another Levitz Case

The D.C. Circuit, having already enforced the NLRB's use of the Levitz actual loss of majority support rule for withdrawing recognition (Highlands Hospital), has fleshed out that doctrine in a new case, Parkwood Development Center v. NLRB.  Of particular interest is the court's approach to when majority support should be measured:

In this case of contradictory petitions and counterpetitions, majority support among Parkwood’s employees depends on when one measures it. From December 2, 2002 until March 6, 2003, the employees’ first petition made clear their lack of support for the Union. But after March 7, 2003, the date the Union presented the counter-petition, the objective evidence showed just the opposite. The Board measured employee support at the expiration of the CBA, on March 8, 2003, because that was the date on which Parkwood’s announced withdrawal of recognition was to take effect.

Prior to Levitz, an employer could withdraw recognition from a union on the basis of good-faith doubt as to the union’s continued support among a majority of employees in the bargaining unit. . . .  Noting that the Board cannot ignore its own precedent, Parkwood argues that the Board was bound by pre-Levitz precedent to measure actual loss of majority support in the same way it once measured good-faith doubt, namely, on the day evidence of actual loss first came to light. This argument fails to account for Levitz, which . . . changed what the Board measures in scrutinizing a withdrawal of recognition, shifting from good-faith doubt to actual loss of majority support. Implicit in this decision is a corresponding change in how the Board will take its measurements. . . .

That the Board was not bound by its precedent to choose the earlier measuring point is apparent from our recent decision in Highlands Hospital. In Highlands, we approved the Board’s decision to consider post-petition employee conduct in determining whether there was an actual loss of majority support. Id. at 31–32. We could not have so held if the Board’s precedent required it to measure actual loss in the same way it had once measured good-faith doubt.

Basically, the court sensibly held that the timing for whether the employer had a good faith reasonable doubt about the union's majority support is different than the question whether the union in fact lacked such support.   It's interesting that the Bush Board never reconsidered Levitz, but this case demonstrates that it will continue to have a life of its own unless a future Board pulls back.

-JH