For over 65 years, an employer has had a legal right to withdraw recognition from an incumbent union based on the union’s lack of majority status. In 1951, in Celanese, the NLRB permitted withdrawal based on the employer’s “good faith belief” for the lack of majority status. In 2001, in Levitz Furniture, the standard was changed to require “objective evidence” to exercise the right to withdraw.

Often overlooked by the holding in Levitz Furniture was the fact that the then General Counsel sought to eliminate the right to withdraw recognition unless there was an RM or RD election to determine majority status. That dramatic change in the long-standing precedent was rejected by the NLRB in Levitz Furniture.

On May 9, 2016, the ghost of the former General Counsel’s position in Levitz Furniture was resurrected. Richard Griffin, the current General Counsel has instructed the NLRB’s Regional Directors to issue a complaint in situations where a withdrawal of recognition is not based on an NLRB election.

Thus, going forward, an employer that withdraws recognition acts at its peril until the validity of sixty-five years of precedent is resolved in the courts. Those employers willing to insist on their Celanese/Levitz Furniture rights may, however, find solace in the fact that the charge in Levitz Furniture was filed in 1994 and the NLRB’s decision took over six years (during which the NLRB sought briefs from non-parties on the then General Counsel’s “election only” position). If it takes that long this time around, who knows who the General Counsel will be under the next administration?