Two Recent NLRB Decisions Erode Employees\' Right To Choose
September 13, 2011
By: Erin S. Torcello
The National Labor Relations Board has had a busy few weeks. As we noted in late August, the NLRB approved a Final Rule requiring employers to post a notice of employees’ rights under the National Labor Relations Act. The Board also issued two significant decisions which will help protect unions from challenges to their majority status.
The first case, Lamons Gasket Co., overturns Dana Corp., a 2007 decision holding that when an employer voluntarily recognizes a union based on a showing of majority support, the employer has to post a notice of employees’ rights to petition for an election and challenge the union. Upon posting and a 30% showing, employees could then file a decertification petition within 45 days.
Chairwoman Liebman had made it clear that given the chance, Dana Corp. would be reversed. The opportunity presented itself in Lamons Gasket, where a Board majority simply overruled Dana Corp. Accordingly, the majority status of a union recognized voluntary by an employer may not be challenged by employees for a “reasonable period of time.” The Board defined a “reasonable period of time,” by adopting the definition used in Lee Lumber & Building Material Corp.; not less than six months, but no more than one year.
At the same time it decided Lamons Gasket, the Board decided UGL-UNICCO Service Company, which addresses whether an incumbent union should enjoy a period of time insulated from challenge to its majority status where there has been a change in employers due to a merger or acquisition. A long line of Board cases have gone back and forth on this issue.
In general, where there is a change in a unionized corporate entity due to a merger or acquisition, a successor employer that hires a majority of the bargaining unit employees must recognize and bargain with the incumbent union. However, the successor employer has no obligation to adopt the predecessor’s collective bargaining agreement, and may unilaterally set its own initial terms and conditions of employment while bargaining.
Moreover, ever since the NLRB’s decision in MV Transportation, an incumbent union enjoyed only a rebuttable presumption of majority status. The union was presumed to have maintained support of a majority of the bargaining unit employees. However, upon a showing that the union had lost such support, an employer could unilaterally withdraw recognition or a petition for election could be filed by employees or a rival union.
UGL-UNICCO Service overrules MV Transportation, and holds that following a change in corporate entity, an incumbent union’s majority support may not be challenged at all for a “reasonable period of time.” The Board went on to hold that a “reasonable period of time” depends on whether the successor unilaterally sets initial terms and conditions of employment. If the successor adopts the collective bargaining agreement in effect between the predecessor employer and incumbent union, the union may not be challenged for six months, beginning from the time of the first bargaining session. Where, however, the successor unilaterally sets its own initial terms and conditions of employment, the reasonable period of time will be a minimum of six months and a maximum of one year.
