On August 30, 2011, the National Labor Relations Board (Board) continued its recent flurry of activity by publishing two decisions that addressed new collective bargaining relationships between unions and employers and, specifically, when employees' support for a union can be challenged in that context. The Board issued these significant decisions, which reversed prior rulings by the Bush Board, just before the term of Board Chairwoman Wilma Liebman, a former union lawyer, ended last weekend.
The first case, Lamons Gasket Co., 357 NLRB No. 72, reverses the Bush Board's 2007 Dana/Metaldyne decisions. These decisions held that when an employer voluntarily recognizes a union based on demonstrated majority status (such as a "card check"), employees have a right, within 45 days, to file a petition to decertify the union. In overruling these decisions, the Board has reinstated the amorphous rule that existed before 2007—that employees cannot challenge a union's status for a "reasonable period of time" following voluntary recognition. Thus, this decision means that employees lose the right to challenge a union's status and vote in a secret ballot election until a "reasonable period of time" has passed following voluntary recognition (which, in some cases, can be up to a year from recognition). Additionally, if the employer and the union execute a labor contract during this insulated period, then employees cannot seek a Board election for up to three years of the new contract's term (called the "contract bar"). As a result, a union may represent employees for up to four years without the employees ever voting in a secret ballot election. As described by dissenting Board Member Hayes, a former management labor lawyer, "This is a purely ideological choice, lacking any real empirical support and uninformed by agency expertise."
The second case, UGL-UNICCO Service Company, 357 NLRB No. 76, overrules the Bush Board's 2002 MV Transportation decision, which held that an employer, its employees or a rival union can challenge a successor's obligation to recognize and bargain with an existing union. In reversing this decision, the Board re-established the pre-2002 pro-union successor bar rule. Under this rule, if a successor employs a majority of predecessor employees represented by a union, then the union's majority status cannot be challenged for a reasonable period to allow the new company and union to have time to negotiate. Thus, this pro-union decision insulates a union in a successorship situation from challenge for a "reasonable period of time." Dissenting Board Member Hayes stated that the Board majority intended this decision to "strike a blow" against NLRA successorship principles established by the U.S. Supreme Court, "protecting labor unions, not labor relations stability or employee free choice, by substituting an irrebuttable successor bar for the protections that the [U.S.] Supreme Court has denied them."
The Board's two recent decisions also define for the first time what constitutes "a reasonable period of time" under the circumstances addressed in those decisions. In a voluntary recognition situation, a union is protected from challenge during a period that will range from six months to one year, depending on the circumstances. In a successorship situation, the union is protected from challenge for six months, but only if the new employer assumes the predecessor's existing contract. If the successor employer imposes new terms and conditions of employment upon acquiring the company, the union is protected from challenge for up to a year.
Unions will likely be emboldened by the Board's recent decisions, and they may spark an increase in union organizing. If you have any questions about these decisions or any issue involving union activity, we encourage you to consult with legal counsel.