Guideline Memorandum Concerning
OFFICE OF THE GENERAL COUNSEL
|MEMORANDUM GC 02-01
||October 22, 2001
TO: All Regional Directors, Officers-in-Charge and
FROM: Arthur F. Rosenfeld, General Counsel
SUBJECT: Guideline Memorandum Concerning Levitz
the Board abandoned the unitary reasonable good-faith doubt standard it had used
to evaluate the lawfulness of three employer actions: unilateral withdrawals of
recognition, the filing of RM petitions, and polling. The Board developed a new
standard for employer withdrawals of recognition, and now requires an employer
who withdraws recognition from an incumbent union to prove that the union had,
in fact, lost majority status at the time of the withdrawal. The Board retained
the good-faith doubt (uncertainty) standard for employer RM petitions, but left
to a later case the decision of whether the current good-faith doubt
(uncertainty) standard for polling should be changed.
This Guideline Memorandum provides an overview of various
issues raised by Levitz. Specifically, this Memorandum provides guidance
on how Regions should investigate these cases. It also discusses the procedure
for processing RM petitions in light of Levitz and what evidence is
required to satisfy the Board's good-faith reasonable uncertainty standard.
All cases involving employers who withdrew recognition
prior to the issuance of Levitz on March 29, 2001, should be sent to the
Division of Advice pursuant to GC Memorandum 99-10.2
II. Withdrawals of recognition
A. General Principles
By changing the standard for employer withdrawals, the
Board overruled Celanese Corp.,3 which
required an employer who withdrew recognition to prove that it had a reasonable,
good-faith doubt as to a union's continuing majority status.4
The Board had interpreted doubt as "disbelief," requiring an employer
to prove its disbelief of the union's majority status when it withdrew
recognition.5 In 1998, however, the Supreme
Court in Allentown Mack Sales & Service v. NLRB6
upheld an employer's poll by interpreting the Board's good-faith doubt standard
as requiring only an employer's "uncertainty" (rather than
"disbelief") as to a union's majority status.7
The Court upheld the Board's use of a unitary standard for unilateral
withdrawals of recognition, RM petitions, and employer polls, but stated that
the Board could adopt a more stringent standard for employer withdrawals of
recognition and/or employer polls.8 The Board
did so in Levitz, and raised the standard for withdrawals of recognition
to that of "actual loss" of majority support. Specifically, the Board
We therefore hold that an employer may unilaterally
withdraw recognition from an incumbent union only where the union has actually
lost the support of the majority of the bargaining unit employees, and we
overrule Celanese and its progeny insofar as they permit withdrawal on
the basis of good-faith doubt.9
"Actual loss" requires a showing that is greater
than both the Board's previous "uncertainty"10
standard and "disbelief"11 standard.
"Actual loss" requires a showing of an actual numerical loss of a
union's majority support.12 This can be
established by direct evidence, such as employees' firsthand statements
regarding their own personal favor or opposition to the incumbent union, or an
antiunion petition signed by a majority of unit employees. If, however, an
employer's showing of "actual loss" is established solely or in part
by hearsay evidence, such as employees' and supervisors' statements regarding
other employees' union sentiments, the case should be submitted to the Division
B. Investigating withdrawals of recognition arising under Levitz
An employer sustains its initial burden of proof of
establishing "actual loss" if it presents untainted, valid evidence,
such as a petition, that establishes that a numerical majority of unit employees
no longer desires representation from the incumbent union.13
Rebuttal evidence may, however, be presented to show that the employer's
evidence is unreliable and/or that the union had majority support at the time of
the employer's withdrawal. The employer then has the burden of proving
"actual loss" by a preponderance of all the evidence, including the
General Counsel's rebuttal evidence.14
An employer who withdraws recognition based on
"actual loss" of majority status will thus violate Section 8(a)(5) if
there is rebuttal evidence that shows the union's majority status at the time of
the withdrawal, regardless of the employer's "good-faith" disbelief or
whether the employer knew of the existence of that evidence at the time it
withdrew recognition. The Board in Levitz stated, "an employer who
withdraws recognition from an incumbent union, in the honest but mistaken belief
that the union has lost majority support, should be found to violate Section
8(a)(5)."15 An employer thus assumes the
risk of a Section 8(a)(5) complaint if it withdraws recognition on evidence
other than the results of an RM election, even if the employer believes in
good-faith that its evidence is conclusive. Rebuttal evidence must, however,
relate to circumstances as they existed at the time of the employer's
If the union contests the withdrawal of recognition in
an unfair labor practice proceeding, the employer will have to prove by a
preponderance of the evidence that the union had, in fact, lost majority
support at the time the employer withdrew recognition.16
1. Allegations of taint
Regions should investigate the bona fides of an employer's
"actual loss" showing in circumstances where the evidence points to
the possibility of taint. Examples of possible taint include:
- Employer's "actual loss" evidence has been
tainted by prior unremedied unfair labor practices
- The employer sponsored the petition or threatened or
otherwise coerced employees into signing a petition
- Employees were misinformed as to the purpose of the
petition, by, for example, being told that the petition was solely for an
election rather than for an outright withdrawal of recognition, and that
petition was relied on by the employer to establish "actual loss"
- Employees were misled as to what document they were
signing, by, for example, signing a paper with no heading after being told
that the petition was for another purpose, such as obtaining a wage increase
- Evidence of forgery of signatures, or when employees
disavow antiunion statements attributed to them
Investigations of such claims would parallel the methods
used to evaluate the authenticity of authorization cards when seeking a Gissel
remedy.17 In these circumstances, the
Region may need to specifically authenticate the signatures of employees who
allegedly signed the petition by affidavit testimony or the mailing of
2. Counter evidence of majority support
Since Levitz permits an employer's evidence of
"actual loss" of majority to be challenged, evidence such as prounion
petitions that could establish the union's retention of majority support and
that conflicts with the antiunion evidence relied on by the employer to justify
its withdrawal of recognition may be relevant. Whether it is depends in part
upon whether the prounion evidence existed pre- or post-withdrawal.
Pursuant to AMBAC International,19
and reaffirmed in Levitz,20 evidence
relating to a union's majority status is evaluated as of the time of the
employer's withdrawal.21 Unlike the
"actual loss" standard set forth in Levitz, the Board's
previous good-faith doubt standard, utilized in cases such as AMBAC, prevented
unions from rebutting an employer's evidence, because an employer only had the
burden to prove its doubt as to a union's majority status, not a union's
lack of majority status, in fact. Prounion evidence establishing a
union's majority status at the time of the withdrawal of recognition was
irrelevant, because while that evidence could prove the union's actual majority
status, it could not disprove the employer's doubt as to the union's
The Levitz decision marks a departure from this
reasoning, because it allows a union to rebut an employer's proof of
"actual loss" by presenting evidence that could establish the union's
majority status at the time of the withdrawal:
An employer who presents evidence that, at the time it
withdrew recognition, the union had lost majority support should ordinarily
prevail in an 8(a)(5) case if the General Counsel does not come forward with
evidence rebutting the employer's evidence. If the General Counsel does
present such evidence, then the burden remains on the employer to establish
loss of majority support by a preponderance of all the evidence.22
Thus, AMBAC and its progeny have been implicitly
overruled by Levitz, to the extent that they hold that evidence of a
union's majority status at the time of withdrawal is irrelevant in determining
whether the employer's withdrawal was unlawful.23
III. Processing RM petitions in light of Levitz
The following is intended to provide procedural and
operational guidance for the Regions when making decisions involving RM
petitions filed pursuant to the good-faith reasonable uncertainty standard
articulated in Levitz. The Board has the authority to make all final and
binding decisions regarding representation matters. Thus, in the event of a
conflict, it is the Board's decisional law and not this Memorandum that is
A. The good-faith reasonable uncertainty standard
The good-faith reasonable uncertainty (rather than
disbelief) standard articulated in Levitz and defined by the Court in Allentown
Mack remains unchanged.24 Since the
good-faith uncertainty standard articulated in Levitz is not a new
standard, it applies retroactively. This section of the Memorandum is intended
to provide procedural and operational guidance, in addition to the Casehandling
Manuals, for investigating and processing these types of cases. Regions
should look to Board law for guidance for the substantive decisions that are to
be made in representation cases.
The good-faith uncertainty standard for RM petition
processing is more lenient than the "actual loss" standard, and
provides an employer with means of testing employees' support for an incumbent
union that is preferable to unilateral action.25
Because the Board rejected the stricter good-faith belief standard in this
context, U.S. Gypsum Co. and its progeny, which required employers to
demonstrate a belief of lost majority status in order to obtain an RM election,
are no longer viable for that proposition.26
B. Evidence required to satisfy the uncertainty standard
Evidence required to establish good-faith uncertainty
should be evaluated on a case-by-case basis. The Board in Levitz has
instructed Regions to take all evidence into account when evaluating an
employer's evidence of uncertainty and to view that evidence in its entirety.27
The evidence must be objective and provide a reliable indication of employee
opposition to the incumbent union rather than mere speculation.28
The burden remains on the employer to prove its good-faith reasonable
uncertainty as to the union's status.29 The R
Casehandling Manual provides guidance in evaluating these types of cases.30
Certain evidence previously held unreliable under the
good-faith doubt (disbelief) standard is now acceptable when evaluating an
employer's uncertainty under the Levitz test, including employees'
unverified statements regarding other employees' antiunion sentiments and
employees' statements expressing dissatisfaction with the union's performance as
bargaining representative.31 The Board will
also continue to consider direct evidence such as antiunion petitions signed by
unit employees and firsthand employee
statements indicating a desire to no longer be represented
by the incumbent union.32 Additionally, the
Board cited the evidence relied on by the Supreme Court in Allentown Mack as
reliable evidence establishing an employer's good-faith uncertainty.33
Some evidence, however, is considered too unreliable to
establish an employer's uncertainty as to a union's majority status. The Board
in Levitz noted two cases, Henry Bierce Co.34
and Scepter Ingot Castings,35 as
examples of cases in which the employer's evidence of doubt was insufficient to
prove its doubt of majority support, even under the Allentown Mack
"uncertainty" standard.36 In Henry
Bierce Co., an employee's arguably antiunion statement,37
the failure of new hires to join the union, some employees' failure to authorize
dues checkoff, and union inaction (failure to appoint a steward, submit a
tentative agreement to employees for ratification, and file grievances) was
insufficient to establish the employer's good-faith doubt.38
In Scepter Ingot Castings, an employee's statements that she
"felt" that the union had "no standing," the employees no
longer wanted the union to represent them, and that the union's status was a
"gone issue" were too vague to establish the employer's
"uncertainty."39 Finally, the Board
in Levitz noted with regard to employee turnover:
One factor that we shall continue to disregard, however,
is turnover among employees in the bargaining unit. We adhere to the
established presumption that newly hired employees support the union in the
same proportion as the employees they have replaced.40
The Board in Levitz did not answer the question of
whether direct evidence from a numerical minority of employees alone, in the
absence of other evidence of employee disaffection, could establish an
employer's good-faith reasonable uncertainty. On one hand, the Board stated that
while good-faith uncertainty must be determined on a case-by-case basis, an
employer's evidence must nonetheless "reliably indicate employee
opposition to incumbent unions - i.e., evidence that is not merely
speculative."41 Because evidence solely
from a numerical minority of employees is by its nature "merely
speculative" as to the union sentiments of the majority, direct evidence
from less than a majority of employees, in the absence of any other evidence of
disaffection, may be found insufficient to rebut the presumption of the union's
continuing majority status and to establish reasonable good-faith uncertainty.
On the other hand, the Supreme Court in Allentown Mack noted
The Board did not specify how many express disavowals
would have been enough to establish reasonable doubt, but the number must
presumably be less than 16 (half of the bargaining unit), since that would
establish reasonable certainty. Still, we would not say that 20%
first-hand-confirmed opposition (even with no countering evidence of union
support) is alone enough to require a conclusion of reasonable doubt.43
However, the Court's implied proposition that direct
evidence from a numerical minority of the bargaining unit could satisfy the
good-faith uncertainty standard is arguably inconsistent with the presumption
that a union retains the support of the employees it represents.44
An employer who relies only on direct evidence from a numerical minority of
employees, without additional evidence of employee disaffection, may be unable
to rebut the presumption of continued majority support, since the employer does
not know the actual union sentiments of a majority of employees in the unit.
Ultimately, the Board will have to decide this issue.
Because Levitz has only clarified the standard used
to process RM petitions, the R Casehandling Manual remains a viable
investigatory tool.45 It appears that Regional
Directors should continue to exercise their discretion in processing RM
petitions pursuant to the "uncertainty" standard, and should allow
such cases to proceed through the normal appeals process.46
IV. 8(a)(2) and the good-faith reasonable uncertainty
Levitz holds that an employer will not violate
Section 8(a)(2) by continuing to recognize an incumbent union while its RM
petition is pending despite the fact that the employer has evidence of
"actual loss,"47 overruling cases to
the contrary,48 such as Maramont Corp.49
and Hart Motor Express.50 It follows
that an employer will not violate Section 8(a)(2) if it reaches an agreement
through continued bargaining, and abides by that agreement during the pendency
of the petition, since any agreement will be null and void should the union
subsequently lose the RM election.51
Regions should submit to the Division of Advice cases in
which an employer attempts to cure a potentially unlawful withdrawal of
recognition by re-establishing recognition and filing an RM petition when, for
example, it is presented with conflicting evidence tending to prove that the
union held majority status at the time of the withdrawal. The determination of
an 8(a)(5) blocking charge attacking the withdrawal of recognition will
ultimately resolve the question of whether to process the RM petition.
The Board in Levitz stated with respect to employer
polling, "we shall leave to a later case whether the current good-faith
doubt (uncertainty) standard for polling should be changed."52
Cases involving polling should be submitted to the Division of Advice.
In addition, unfair labor practice cases that present
issues not resolved by this Memorandum should be submitted to the Division of
Release to the Public
MEMORANDUM GC 02-01
1 333 NLRB No. 105
(March 29, 2001). In Levitz, the employer received a petition containing
signatures from what appeared to be a majority of unit employees stating that
they no longer desired representation from the incumbent union, and informed the
union that it intended to withdraw recognition at the end of the contract term,
slip op. at 3. Within two weeks, the union informed the employer that it had
objective evidence establishing that it retained majority support and was
willing to show this evidence to the employer. Ibid. The employer never
examined the union's evidence and withdrew recognition from the union when the
contract expired. Ibid.
2 See, e.g., Levitz, slip op. at 12
(applying the Levitz "actual loss" standard prospectively only,
stating that all pending cases involving withdrawals of recognition will be
decided under the good-faith uncertainty standard).
3 95 NLRB 664 (1951).
4 [W]e hold that an employer may rebut the
continuing presumption of an incumbent union's majority status, and unilaterally
withdraw recognition, only on a showing that the union has, in fact, lost the
support of a majority of the employees in the bargaining unit. We overrule Celanese
and its progeny insofar as they hold that an employer may lawfully withdraw
recognition on the basis of a good-faith doubt (uncertainty or disbelief) as to
the union's continued majority status.
Levitz, slip op. at 8.
5 See Celanese Corp., 95 NLRB at 671
(emphasis omitted) ("the answer to the question whether the Respondent
violated Section 8(a)(5) of the Act [by withdrawing recognition] depends . . .
upon whether the Employer in good faith believed that the Union no longer
represented the majority of the employees"); U.S. Gypsum Co., 157
NLRB 652, 656 (1966) (requiring an employer filing an RM petition to demonstrate
"by objective considerations that it has some reasonable grounds for
believing that the union has lost its majority status since its
6 522 U.S. 359 (1998).
7 The Board asserted at argument that the word
'doubt' may mean either 'uncertainty' or 'disbelief,' and that its polling
standard uses the word only in the latter sense. We cannot accept that
linguistic revisionism. 'Doubt' is precisely that sort of 'disbelief' (failure
to believe) which consists of an uncertainty rather than a belief in the
opposite. . . . The question presented for review, therefore, is whether, on the
evidence presented to the Board, a reasonable jury could have found that
Allentown lacked a genuine, reasonable uncertainty about whether Local 724
enjoyed the continuing support of a majority of unit employees.
Id. at 367.
8 Id. at 364, 373-74.
9 Levitz, slip op at 1.
10 Allentown Mack, 522 U.S. at 367; see
also Scepter Ingot Castings, 331 NLRB No. 153, slip op. at 1 (August 28,
2000) (quoting Henry Bierce Co., 328 NLRB 646, 651 (1999), affd. in
relevant part per curiam and remanded 234 F.3d 1268 (6th Cir. 2000)) in which
the Board found that an employee's statements that she "felt" that the
union had "no standing," the employees no longer wanted the union as
their representative, and the union's status was a "gone issue:"
[did] not come even close to being objective evidence
justifying a withdrawal of recognition, regardless of whether the test is
phrased in terms of 'good[-]faith reasonable doubt' of the Union's majority
support or 'genuine, reasonable uncertainty about whether the Union enjoyed the
continuing support of a majority of unit employees.'
11 See, e.g., U.S. Gypsum Co., 157 NLRB
at 656; Celanese Corp., 95 NLRB at 671.
12 Cf. Auciello Iron Works, 317 NLRB
364, 365 fn. 14 (1995), enfd. 60 F.3d 24 (1st Cir. 1995), affd. 517 U.S. 781
(1996) (citing NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 787 fn. 8
(1990), "unlike in an actual loss of majority status case, an employer need
not show an actual numerical loss of majority support to prove a good-faith
doubt and may rely instead on circumstantial evidence to satisfy its burden of
13 In order to be valid, such a petition must
contain the signatures of a majority of employees employed in the unit at the
time of the withdrawal of recognition, and the employer must demonstrate that
those signatures are facially authentic, usually by comparing them with employee
signatures contained in the employer's business records or by witness
authentication. See, e.g., NLRB Casehandling Manual (Part One) ULP, Sec.
14 Levitz, slip op. at 8 fn. 49.
15 Id., slip op. at 8 (emphasis omitted).
16 Ibid. (emphasis added).
17 See NLRB v. Gissel Packing Co., 395
U.S. 575 (1969).
18 ULP Casehandling Manual, Sec.
10058.3. However, in contrast to Gissel situations, in cases such as
these the employer at all times bears the burden of proving "actual
loss" of majority. Close questions as to whether the employer has met this
burden should be submitted to the Division of Advice. Further, if the
investigation reveals evidence of forgery, further case processing should be
suspended pending advice from Washington. Id., Sec. 10058.5.
19 299 NLRB 505, 506 (1990).
20 Levitz, slip op. at 8 (an employer
must prove the union suffered an "actual loss" at the time it withdrew
21 AMBAC, 299 NLRB at 506 (an employer's
good-faith doubt defense must be evaluated as of the day of its withdrawal).
22 Levitz, slip op. at 8 fn. 49.
23 As noted above, that portion of AMBAC holding
that evidence relating to a union's majority status must be evaluated as of the
time of the employer's withdrawal remains viable after Levitz. See notes
20, 21 and accompanying text. Thus, as noted infra, evidence of
post-withdrawal union support, as was presented by the union in AMBAC, will
not affect the lawfulness of the employer's withdrawal, even under the
"actual loss" standard.
24 See Allentown Mack, note 7.
25 The Board and the courts have consistently
said that Board elections are the preferred method of testing employees' support
for unions. And we think that processing RM petitions on a lower showing of
good-faith uncertainty will provide a more attractive alternative to unilateral
action. Levitz, slip op. at 10 (footnote omitted).
26 The Levitz Board stated:
[W]ere we to require employers to demonstrate a higher
showing of good-faith belief of lost majority support in order to obtain an RM
election, as in United States Gypsum, we might encourage some employers
instead to withdraw recognition rather than seeking an election.
Ibid. (emphasis in the original).
27 Id., slip op. at 11-12.
28 Id., slip op. at 12.
29 See id., slip op. at 11 ("[w]e
turn now to the kinds of evidence that employers may present to establish
good-faith reasonable uncertainty").
30 It is noted that portions of the R
Casehandling Manual may change as a result of Levitz. See, i.e.,
NLRB Casehandling Manual (Part Two) Rep. Secs. 11042-11042.8 (processing RM
petitions pursuant to U.S. Gypsum).
31 Levitz, slip op. at 11. The Board
previously considered such types of evidence to be unreliable evidence of
opposition to the union. Ibid. (citing Allentown Mack Sales, 316
NLRB 1199, 1206, 1208 (1995), enfd. 83 F.3d 1483 (D.C. Cir. 1996), revd.
522 U.S. 359 (1998)).
32 Levitz, slip op. at 11.
33 The evidence in Allentown Mack included
firsthand statements by 7 of 32 employees of union opposition, one employee's
statement indicating dissatisfaction with the representation he was receiving,
an employee's statement that the entire night shift opposed the union and a
union steward's statement that he felt the employees no longer wanted the union
and that the union would lose if a vote was taken. Levitz, slip op. at
12; Allentown Mack, 522 U.S. at 368-71. See also Alcon Fabricators, 334
NLRB No. 85, slip op. at 2 (July 18, 2001) (employer had a good-faith
uncertainty where 5 of 14-15 unit employees stated they did not wish to be
represented by the union, a decertification petition was filed, and two
employees stated that in their view, a majority of employees no longer supported
34 328 NLRB 646 (1999), affd. in relevant part
per curiam and remanded 234 F.3d 1268 (6th Cir. 2000).
35 331 NLRB No. 153 (August 28, 2000).
36 Levitz, slip op. at 12.
37 In Henry Bierce Co., 328 NLRB at
646-47, the arguably antiunion statement was made in response to an employee who
said that employees would have uniforms if they had a union. The employee who
responded said, "[y]ou go ahead and ruin a good thing between the - the
relationship between the drivers and the company." The Board in Henry
Bierce noted that unlike in Allentown Mack, it was not rejecting any
employee statement used to prove the employer's good-faith doubt, but that the
ambiguous statement described above was the only employee statement asserted to
show union disaffection, and was insufficient to prove the employer's doubt
since the Board rejected the employer's additional evidence, including the
employer's own contract violations and the union's inaction in opposing them.
Id. at 651.
38 Levitz, slip op. at 12; see
generally Henry Bierce Co., 328 NLRB at 649-51.
39 Levitz, slip op. at 12; Scepter
Ingot Castings, slip op. at 1.
40 Levitz, slip op. at 11 fn. 60, citing
NLRB v. Curtin Matheson Scientific, 494 U.S. at 779; see also Levitz,
slip op. at 12, citing Scepter Ingot Castings, slip op. at 1.
41 Levitz, slip op. at 12.
42 On the facts in Allentown Mack, this
analysis was not necessary to the result because the evidence showed at least
indirect evidence that a majority did not support the union. See, e.g., note 33.
43 Allentown Mack, 522 U.S. at 368-69
(emphasis in the original). See also Hospital Metropolitano, 334 NLRB No.
75, slip op. at 3 (July 16, 2001) (decertification petition alone could not
support a withdrawal of recognition under the good-faith reasonable uncertainty
standard because such petitions require the support of only 30% of unit
employees, citing Dresser Industries, 264 NLRB 1088, 1088 (1982)); Heritage
Container, 334 NLRB No. 65, slip op. at 1 (July 6, 2001) (employer could not
establish its good-faith reasonable uncertainty by showing that only 35% of the
unit signed an antiunion petition, even if the petition were untainted).
44 See generally Auciello Iron Works v. NLRB,
517 U.S. 781, 785-86 (1996).
45 See R Casehandling Manual, Secs.
11042-11042.8 (describing the procedure for processing RM petitions). Although,
as noted above, U.S. Gypsum is no longer the standard used for processing RM
petitions, the procedures outlined in the R Casehandling Manual remain
46 See, i.e., Board's Rules and Regulations,
Sec. 102.71 (grounds for which a request for review of a petition's dismissal
may be sought).
47 Levitz, slip op. at 8.
48 Id., slip op. at 9-10 fn. 52.
49 317 NLRB 1035 (1995).
50 164 NLRB 382 (1967).
51 Levitz, slip op. at 9 fn. 52, citing
cf. RCA del Caribe, 262 NLRB 963 (1982).
52 Levitz, slip op. at 7.