NLRB Issues Decisions Barring Decertifcation Petitions Following Voluntary Union Recognition, Mergers or Acquisitions
As Chairman Wilma Liebman’s term wound down to a close, late last week, the National Labor Relations Board issued a number of significant decisions reversing Board decisions from earlier administrations. Two of these -- Lamon’s Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011) and UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011) -- make it more difficult for employees to challenge a union’s status as their exclusive bargaining representative in the workplace.
A year after granting review and inviting briefs, in Lamons Gasket Co., the Board reversed the decision of the Board in Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), holding that a decertification petition will be barred “for a reasonable period of time after voluntary recognition.” In addition, the Board clarified the standard for determining a “reasonable period of time” in connection with this analysis.
In Dana Corp.,, the Board modified its “recognition-bar doctrine” to hold that an employer’s voluntary recognition of a union bargaining representative would not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) could file a petition soon after an employer voluntarily recognized a union, and in a departure from its past practice, the Board would not dismiss the petition as barred. Following the 45 day period, the recognized union would still enjoy a presumption of majority status for a "reasonable period of time.”
Regarding the 2007 decision, the Lamon’s Gasket majority declared:
[T]he extraordinary process established in Dana was, fundamentally, grounded on a suspicion that the employee choice which must precede any voluntary recognition is often not free and uncoerced, despite the law’s requirement that it be so. The evidence now before us as a result of administering the Dana decision during the past 4 years demonstrates that the suspicion underlying the decision was unfounded. Without an adequate foundation, Dana thus imposed an extraordinary notice requirement, informing employees only of their right to reconsider their choice to be represented, under a statute commanding that the Board remain strictly neutral in relation to that choice.