Changes in labor law predicted for many months have now begun in earnest. The National Labor Relations Board has granted review in two important groups of union representation cases, and has invited amicus participation by all interested parties on or before November 1, 2010. Both cases could substantially affect the right of employees to challenge an incumbent union in a secret ballot election.

The Right of Employees to Challenge an Incumbent Union in a Successorship Situation

Under current law, announced by the Board in MV Transportation, 337 NLRB 770 (2002), a successor employer’s recognition of an incumbent union does not bar a decertification petition, a rival union petition, or even an employer petition for an election if a different union were demanding recognition.

In UGL-UNICCO Service Company, Case No. 1-RC-22447 and Grocery Haulers, Inc., Case No. 3-RC-11944, the Board has granted review in order to decide whether it should modify or overrule MV Transportation, 337 NLRB 770 (2002), and return to the successor bar doctrine as set forth in St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). In St. Elizabeth Manor the Board recognized a successor bar, which barred any petition seeking to decertify or replace an incumbent union which had been recognized by a successor employer. The bar was imposed for a reasonable period, generally less than a year. If the union and the successor employer reached a contract during that period of time, however, the contract bar doctrine would come into play, barring any such petitions for the shorter of three years or the duration of the contract.

MV Transportation overruled St. Elizabeth Manor, eliminated the successor bar and restored prior precedent that allowed employees to reconsider their current union affiliation in light of the new employing entity and other changed circumstances brought about by that situation. In the UGL-UNICCO and Grocery Haulers cases, the Board will decide whether to modify or overrule MV Transportation and return to the rule of St. Elizabeth Manor.

The Board asked that parties interested in filing “friend of the court” briefs specifically address the following questions:

(1) Should the Board reconsider or modify MV Transportation? (2) How should the Board treat the “perfectly clear” successor situation, as defined by NLRB v. Burns Security Services, 406 U.S. 272, 294 295 (1972), and subsequent Board precedent? In answering these questions, the parties are invited to submit empirical and practical descriptions of their experience under MV Transportation.

Notice and Invitation to File Briefs at 2.

The Right of Employees to a Secret Ballot Election Even After Their Employer Has Voluntarily Recognized the Union

In Dana Corp., 351 NLRB 434 (2007), the Board modified the voluntary recognition bar doctrine to permit the filing of a petition under the following circumstances: Upon voluntary recognition, employers are to post a notice notifying employees that a union has been recognized to bargain on their behalf. If, within 45 days of the posting of that notice, 30% of the employees filed a petition seeking an election, either for a different union or no union, the Board would process any such petition and schedule an election. If the election overturned the voluntary recognition, then any contract reached by the parties during the period of voluntary recognition would be rendered void.

In Rite Aid Store #6473, Case 31-RD-1578 and Lamons Gasket Company, Case 16-RD-1597, the Board has granted review to decide substantial issues concerning the voluntary recognition bar prompted by the Board’s Dana Corp. decision. Prior to Dana Corp. the Board employed the voluntary recognition bar in situations where an employer recognized a union without an election, usually based on a valid showing of majority support through cards or some similar means.

The voluntary recognition bar prohibited the Board from entertaining any employee petition to decertify the voluntarily recognized union or replace it with another union, for a reasonable period of time, generally less than a year. If the union and the employer reached a contract during that period of time, however, the contract bar doctrine would come into play, barring any such petitions for the shorter of three years or the duration of the contract.

In its grant of review, the Board asked interested amici specifically to address the following questions:

(1) What has been their experience under Dana and what have other parties to voluntary recognition agreements experienced under Dana? (2) In what ways has the application of Dana furthered or hindered employees’ choice of whether to be represented? (3) In what ways has the application of Dana destabilized or furthered collective bargaining? (4) What is the appropriate scope of application of the rule announced in Dana, specifically, should the rule apply in situations governed by the Board’s decision regarding after-acquired clauses in Kroger Co., 219 NLRB 388 (1975), or in mergers such as the one presented in Green-Wood Cemetery, 280 NLRB 1359 (1986)? (5) Under what circumstances should substantial compliance be sufficient to satisfy the notice-posting requirements established in Dana? (6) If the Board modifies or overrules Dana, should it do so retroactively or prospectively only? In answering these questions, the parties and amici are invited to submit empirical data and factual descriptions of their experience under Dana.

Notice and Invitation to File Briefs at 3.

Briefs in both cases are due on or before November 1, 2010, and may not exceed 50 pages in length. Parties may also file response briefs by November 15, not to exceed 10 pages in length.

Both of these review cases present important issues about when the Board will process election petitions and under what circumstances employees may have the opportunity to displace an existing union and perhaps replace it with another representative. They also raise important questions about the rights of and obligations undertaken by employers who may become a successor employer through the purchase of a unionized company or facility, or an employer who may wish to voluntarily recognize a union representing a majority of its employees.