The National Labor Relations Board (NLRB) issued two 3-1
decisions revisiting two decertification issues. These decisions,
UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011),
and Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011),
reversed its prior decisions and reinstated the bar of an
employee's free choice to challenge a union's status as
their exclusive bargaining representative in the workplace in
voluntary successorship and recognition situations.
In UGL-UNICCO Service Co., the Board addressed the
relationship between an incumbent union and successor employer
following a change in ownership. Previously, in MV Transportation,
337 NLRB 770 (2002), the Board created a distinction between a
successorship situation and voluntary recognition based on the fact
that the union had an existing relationship with the employee. As a
result, the Board created a window to allow challenges to a union
representative's status by 30 percent of employees, the new
employer, or a rival union following a sale or merger.
However, the UGL-UNICCO Board created a modified "successor
bar" doctrine. The Board held that that the bargaining
relationship is new and the stability of the relationship between
the incumbent union and a successor should be insulated from
challenges for a reasonable period of time. The Board noted that
"the number and scale of corporate mergers and acquisitions
has increased dramatically over the last 35 years." Therefore,
evaluating and modifying the "successor bar" doctrine was
important to prevent the destabilization of collective-bargaining
relationships and ensure incumbent unions receive a reasonable
period of time without challenges.
The Board held the "successor bar" doctrine applies and
defined a "reasonable period" based on whether the
successor employer elected to set-forth new terms and condition of
employment. If the successor employer decided to set new terms and
conditions, the successor bar will last for a minimum of six months
and a maximum of a year. However, the successor bar will last for a
period of only six months if the successor employer adopted the
previous terms and conditions of employment. The time period starts
after the first bargaining meeting between the union and the
successor employee. Lastly, the Board held if the union and
successor employer decided to negotiate a new collective bargaining
during the "reasonable period" and there was no open
period allowing the predecessor's employees to file an election
petition during the final year of their operation, then the
"contract bar, which bars election petitions during the
contractual terms would be prohibited for two years instead of
three.
The same day, in Lamons Gasket Co., the Board addressed an
employer's voluntary recognition of a union when it received
support from a majority of employees. Four years ago, in Dana
Corp., 351 NLRB 434 (2007), the Board modified its
"recognition bar," and allowed minority employees to
challenge conflicting petitions within the first 45 days after an
employer's voluntary recognition of a union bargaining
representative. However, the Board reverted to its 40 year-old
decision in Keller Plastics, 157 NLRB 583 (1966), which prohibited
challenges to a bargaining relationship once it was rightfully
established for a reasonable period, to allow for the relationship
to succeed.
In Lamons Gasket, the Board stated that the practice to allow
challenges in the Dana decision within the first 45 days was based
on the unfounded suspicion that the "employee choice which
must precede any voluntary recognition is often not free and
uncoerced, despite the law's requirement ..." The Board
based the decision to depart from Dana on empirical evidence.
Specifically, the Board cited that during the last four years under
the Dana procedures, employees decertified and requested Dana
notices for the voluntarily recognized union in only 1.2 percent of
the 1,133 total cases. Consequently, the Board reverted back to the
standards set-forth in Keller Plastics, reasoning that the Supreme
Court rightfully acknowledged that a fair chance must be given to a
bargaining relationship once it was established for a reasonable
period of time.
In sum, in both UGL-UNICCO Service Co. and Lamons
Gasket Co., the Board modified its definition of a
"reasonable period." In a successorship situation, if the
new successor adheres to the existing contract then the
relationship would be protected for six months, and up to a year if
the new employer imposes new terms and conditions. For voluntary
recognition cases, the Board held depending on the circumstances,
the bar will range from six months to one year.
Employers should be aware of the re-instated protections granted to collective bargaining relationships between unions and employees by the NLRB Board.
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