Seyfarth Synopsis: In a continuation of its push to protect employee free choice, the NLRB issued a final rule on April 1 that returns to the Board’s previous Dana Corp. rule. Under Dana Corp., employees may petition the Board for a secret-ballot election within 45 days of an employer’s voluntary recognition of a union. In 2011, the Board overruled Dana Corp. and set out a procedure under which an election could be barred for up to four years. The new final rule permitting employees a 45-day window to petition for an election will go into effect on July 31, 2020.

As we previously reported, in August 2019 the National Labor Relations Board published several Notices of Proposed Rule Making (“NPRM”) regarding amendments to the Board’s union representation procedures. The proposed amendments consisted of: (1) a change from the current election blocking charge policy to a vote-and-impound procedure; (2) a reversion to the rule of Dana Corp. with respect to voluntary recognition agreements; and (3) a modification of the evidentiary requirements for § 9(a) recognition in the construction industry. On April 1, 2020, the Board issued its final rule on these matters. The final rule was set to go into effect on June 1, 2020, but the Board recently announced that the rule would be delayed to July 31, 2020, due to the COVID-19 pandemic.

This blog post explores the return to the procedures originally set forth in the Board’s 2007 Dana Corp. decision.

Voluntary Recognition

Under the NLRA, employers may voluntarily recognize a union based on the union’s showing of majority support. In these circumstances, a Board-conducted election is not required. Furthermore, once a union demonstrates majority support and has been recognized by an employer, an election bar goes into effect. Voluntary recognition would bar the filing of an election petition for a reasonable period of time, and, if the parties then reached a collective bargaining agreement, the contract-bar doctrine would continue to bar elections for the duration of the agreement, up to a maximum of three years.

Dana Corp.

In 2007, the Board issued its opinion in Dana Corp. The Board concluded that the voluntary recognition bar policy “should be modified to provide greater protection for employees’ statutory right of free choice and to give proper effect to the court- and Board-recognized statutory preference for resolving questions concerning representation through a Board secret-ballot election.” Dana Corp. held that voluntary recognition does not bar an election unless (1) bargaining-unit employees received adequate notice of the recognition and of their opportunity to file a Board election petition within 45 days and (2) 45 days had passed from the date of the notice without the filing of a petition.

Lamons Gasket Co.

In 2011, the NLRB overruled Dana Corp. In its ruling, the Board defined the reasonable period of time during which a voluntary recognition bars an election to be at least 6 months after the date of the parties’ first bargaining session and no more than one year after the first bargaining session. As a result, when the contract bar also applies, an election may be barred for as many as four years after voluntary recognition—without employees ever having a chance to vote on whether or not they want union representation.

The Return to Dana Corp.

In the final rule, the NLRB returns to the practice set forth in Dana Corp. Once the rule takes effect, an employer who voluntarily recognizes a union must post a notice to its employees about the voluntary recognition. Affected employees then have 45 days in which to petition for a secret-ballot election. The petition must be supported by at least 30-percent of the bargaining unit. If a valid petition is not filed in that period, the voluntary recognition bar would preclude an election for “a reasonable period of time.”

Changes from the Proposed Rule to the Final Rule

As mentioned above, the Board proposed these changes in August 2019. Although the final rule is substantially similar to the proposed rule, there are some differences:

  • The final rule clarifies that it will only apply to an employer’s voluntary recognition after the effective date of the rule (e., July 31, 2020), and will only apply to the first collective bargaining agreement reached after voluntary recognition.
  • The final rule clarifies that either the employer or the union must notify the Regional Office that voluntary recognition has been granted (the proposed rule required both parties to notify the Regional Office).
  • The final rules makes clear that the notice must be posted “in conspicuous places, including all places where notices to employees are customarily posted.”
  • The final rule refers only to an employee’s right to file “a petition,” rather than the right to file “a decertification or rival union petition.”
  • The final rule requires an employer to distribute the notice to unit employees electronically if the employer customarily communicates with its employees by such means.
  • The final rule contains the wording for the required notice as shown here (on pages 34-35 of the final rule).

The Board’s reversion to the Dana Corp. standard provides employees with greater freedom in choosing whether or not they want to be represented by a union. The Board’s promulgation of the final rule also shows its continued commitment to advance the rulemaking agenda that it set out last year.