Monday, July 28, 2008
Ross Runkel brings to our attention a decision by the Fourth Circuit in NLRB v. Mullican Lumber (4th Cir. 7/25/08), in which the court held that the employer did not violate the NLRA in withdrawing recognition of a union.
Here's the description by Ross:
The employer appealed the decision of the National Labor Relations Board (NLRB) finding that the employer violated section 8(a)(5) of the National Labor Relations Act (NLRA) in withdrawing recognition of the union. The 4th Circuit granted the petition for review. The issue on appeal was whether the employer proved loss of majority status "by a preponderance of the evidence" by presenting "objective evidence that the union has lost majority support." The court held that the unsolicited statements and letters from employees, stating that a majority of them no longer supported the union, including the letter written by employee Carroll who was the person who filed the decertification petition with the NLRB, was sufficient evidence which met the objective requirement. Where the General Counsel of the NLRB offered no contrary evidence, the court concluded that there was no substantial evidence to support the NLRB's conclusion that the employer violated section 8(a)(5) in withdrawing recognition of the union.
This is a difficult standard to meet in light of the Allentown Mack/Levitz Furniture standard now requiring objective evidence in fact for an employer to unilaterally withdrawal recognition without a decertification election, but apparently the court found the statements and letters from the employees were enough. However, if this is just a case of employees expressing the sentiments of other employees about their feelings about the union, although the Allentown Mack genuine uncertainty standard might have been met, it is less likely that the Levitz Furniture objective evidence in fact standard was.
Withdrawal of recognition will continue to be a hot-button topic until there is some resolution of these issues.