The scope of the blizzard is becoming more defined as the NLRB rolls out decisions it reached in the waning days of Chairman Liebman's term.
As previously reported on this blog, the NLRB was considering reversing Dana Corp, 351 NLRB 434 (2007) where it held that employees who become represented by a union pursuant to a voluntary recognition agreement must be given an opportunity, after notice, to reject that representation through a government supervised secret ballot election.
Concluding that "Dana represented a major change in Board law" that was "unwarranted," a sharply divided Board in Lamons Gasket Company, 357 NLRB No. 72 (August 26, 2011).pdf did as predicted and reversed Dana. In the process it dismissed a timely petition filed by an employee, Michael Lopez, who obviously disagreed with his employer's voluntary recognition of a union. Note that the petition was filed December 9, 2009 and a decision to hold an election was not rendered until July 21, 2010. The actual election was held on August 26, 2010, more than eight months after the filing of the petition. (It is typical in decertification elections for there to be delays such as occurred in this case, something you don't often hear about when discussing how difficult it is for employees' voices to be heard by secret ballot). Unfortunately for Mr. Lopez, the ballots were impounded and now will never be counted.
Thus, the so-called "recognition bar" has been restored to the rules in place prior to 2007, meaning "a reasonable period" of time must pass before such recogntion can be challenged. The Board did seem to recognize the definition of "reasonable period" has been elusive and provided some clarity
[W]e define a reasonable period of bargaining, during which the recognition bar will apply, to be no less than 6 months after the parties' first bargaining session and no more than 1 year.
The Board held it would apply the "multifactor analysis" for evaluating whether a reasonable period after six months had elapsed as set forth in Lee Lumber & Bulding Material Corp., 334 NLRB 399, 402 (2001) "which considers (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties' bargaining processes; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions: (4) the amount of progress made in negotiations and how year the parties are to concluding an agreement; and (5) whether the parties are at impasse." The burden would be on the General Counsel to prove that a reasonable period had not elapsed after the initial six months of bargaining.
The decision is hardly a surprise, but the majority did go to great lengths to discuss the history of voluntary recognition, and to assert its differences with the Dana majority.
The Board asserts Dana "compromises" its neutrality because it calls for employees to be informed via NLRB notice of their right to rid themselves of the union
In no other context does the Board require that employees be given notice of their right to change their minds about a recent exercise of statutory rights....
This is somewhat ironic given the NLRB's recent requirement that all employers post notice of the rights under the Act.
The Board majority also took aim at a major underpinning of Dana that voluntary recognition was somehow a lesser method for employees because of the potential for abuse in getting employees to get employees to sign recognition cards. Here the Board majority cited some interesting statistics. That "as of May 13, 2011" (four years after Dana became law) "the Board had received 1, 333 requests for Dana notices." Of those, 102 elections petitions were filed (7.6% of the cases), and 62 elections (55% of the petitions) were held, but that in only 17 cases did employees vote against representation. The Board concluded "Those statistics demonstrate that, contrary to the Dana majority's assumption, the proof of majority support that underlay teh voluntary recognition during the past 4 years was a highly reliable measure of employee sentiment."
It is unclear how these statistics are a highly reliable measure of employee sentiment. The issue in these cases is what were the employees told when they signed an authorization card. Were they told the truth? Were they promised anything? Were they threatened? Did the notices employees were given about their rights make any difference at all? One simply cannot tell from these numbers.
The Board majority was clear on what it was not deciding
While we overrule Dana, we have made no changes to established law regarding secret-ballot elections. An election remains the only way for a union to obtain Board certification and its attendant benefits.
The "attendant benefits" of course are a 12 month bar for holding a decertification election. The Board undoubtedly will leave the changes to "established law" for its pending rulemaking.
What would a Board decision these days be without a dissent? Probably not a decision at all. Member Hayes did his usual thorough job of providing the "other side" of this issue. Member Hayes takes issue with the use of statistics, stating
As for the 1231 cases in which Dana notices were requested, but no petitions were filed, we know nothing about the reasons for this outcome. To be more specific, we do not know anything about the reliability of the proof of the majority support that underlay voluntary recognition in each of htese cases, nor do we know the reasons why no petition was filed.
As to the legal underpinnings of the pre-Dana recognition bar doctrine
The majority also mischaracterizes statutory and judicial support for imposition of an election bar following voluntary recognition. The Act itself does not impose such a bar in the wake of voluntary recognition. It imposes an election bar only after there has been a valid Board election. . . .In other words, in the Taft-Hartley Act, Congress, undisputedly cognizant of the practice of voluntary recognition that the majority portrays as 'fully woven into the very fabric of the Act' since its inception, chose not to give voluntary recogntion either election bar quality or the special protections of 9(a) certification status.
UGL-UNICCO Service Company
In UGL-UNICCO Service Company, 357 NLRB No. 76 (August 26, 2011).pdf, a case involving similar legal principles to Lamons Gasket, the Board reversed MV Transportation, 337 NLRB 770 (2002) which had thrown out the so-called "successor bar" whereby employees who become represented by a union through recognition as part of a merger can challenge that recognition.
The Board held that while it was reversing MV Transportation "we do not simply return to the" prior rule set forth in St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). The Board then proceeded to describe three situations and the rules associated with each:
Scenario 1: Successor employer adopts existing terms and conditions of employment as starting place for negotiations
In this situation, the "reasonable period of bargaining" will be "6 months measured from the date of the first bargaining meeting. . ." The Board held this shorter insulated period was mandated because "the impact on the union and the employees it represents is significantly mitigated, because the new employer has accepted the collectively bargained status quo (if not the predecessor's contract, assuming one was in effect).
The Board described this as a "bright-line rule for such cases." As such it was not necessary to apply the multi-factor test set forth in Lee Lumber. And, it clearly rewards successor employers who agree to adopt existing terms and conditions of employment. Of course, anyone who has practiced in this area knows, it is virtually impossible for a successor to adopt all terms and conditions of employment of the predecessor. There are always differences in health plans, retirement benefits, and company policies which, try as one might, cannot be made exactly the same no matter the effort. So, while the idea of a "bright-line" sounds good, it seems illusory and subject to attack in this case despite a successor's good faith efforts.
Scenario 2: Successor employer sets initial terms and conditions of employment
The Board also modified the prior successor bar rules to "address the situation where the successor employer recognizes the union, but unilaterally announces and establishes initial terms and conditions of employment." Acknowledging that such a successor has acted "lawfully" the Board held "there is no reason to believe that the actual impact of these changes on the bargaining relationship and on employees is somehow lessened because they are legal."
The Board held
In these cases, because the destablizing factors associated with successorship are at their height a longer insulated period is appropriate. The period we have chosen corresponds to the period adopted in Lee Lumber . . .
So, six months is the minimum period and one year is the maximum.
Scenario No. 3: Successor employer reaches agreement but no open period occurred
The Board made "one further modification" to the successor bar doctrine, holding that where "(1) a first contract is reached by a successor employer and the incumbent union within a reasonable period of bargaining during which the successor bar applied, and (2) there was no open period permitting the filing of a petition during the final year of the predecessor employer's bargaining relationship with the union, the contract-bar period applicable to election petitions filed by employees or rival unions will be a maximum of 2 years, instead of 3."
This appears to be an effort to provide some clarity to a "what-if" situation described in MV Transportation.
Member Hayes provided a spirited, and entertaining dissent, which provides a detailed and clear discussion of the law of successorship, something that vexes even veteran practitioners. Member Hayes flatly disputes the legal underpinnings and asserts the majority has a whiff of arbitrariness about it when setting its new rules
Undeterred by this precedent, my colleagues reimpose their successor bar, giving it the additional twist of defining a reasonable bar period as dependent upon whether a successor has exercised its legal right under Burns to set initial terms and conditions of empoyment different from those that existed under the predecessor employer. If the employer exercises this legal right, the irrebuttable presumption of the incumbent union's majority status could last for as much as a year, thus imposing by decisional fiat a bar of the same length that Congress stautorily provided for only following a free and fair secret ballot Board election.
The entire dissent is well worth the read.
Stay tuned. This is only the start of the storm. More is sure to be coming.