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.
As empirical evidence that the Dana “suspicion” was unfounded, the Board now cites that during the last four years, employees decertified the voluntarily-recognized union under the Dana procedures in just 1.2 percent of the 1,133 cases in which Dana notices were requested from the Board. Thus, Lamon’s Gasket announces the standards now revert back to the pre-Dana rules set forth in Keller Plastics, 157 NLRB 583 (1966), as they could see no reason for departing from the Supreme Court explanation in Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944), that:
“[A] bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.”
Likewise, UGL-UNICCO Service Company overruled the Board’s 2002 MV Transportation decision. Regarding the notion of a “successorship bar,” MV Transportation created a time period following a sale or merger for a union’s representative status to be challenged by 30% of employees, the new employer, or a rival union. Now, the Board criticized that holding:
The MV Transportation Board distinguished successorship from voluntary recognition on the basis of the union’s preexisting relationship with employees. 337 NLRB at 774. That distinction, however, does not come to terms with the basic fact of the successorship situation: that the bargaining relationship is an entirely new one.
Based on a clear preference to preserve that “new” relationship, the Board announced it would adopt the basic statement of the “successor bar” rule set forth in St. Elizabeth Manor, 326 NLRB No. 36 (1999), thus:
The “successor bar” will apply in those situations where the successor has abided by its legal obligation to recognize an incumbent union, but where the “contract bar” doctrine is inapplicable…. In such cases, the union is entitled to a reasonable period of bargaining, during which no question concerning representation that challenges its majority status may be raised through a petition for an election filed by employees, by the employer, or by a rival union; nor, during this period, may the employer unilaterally withdraw recognition from the union based on a claimed loss of majority support, whether arising before or during the period.
The two decisions also modify the Board’s definition of “a reasonable period” under these circumstances. In the case of voluntary recognition, the bar will range from six months to one year, depending on the circumstances. In a successorship situation, the relationship will be protected for six months if the new successor adheres to the existing contract; and, for up to a year if the new employer imposes new terms and conditions.
Member Brian Hayes dissented that both these 3-1 decisions reflect “a purely ideological choice,” by the majority. In each, he expressly invites “strict scrutiny upon judicial review.”