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Washington Labor & Employment Wire » NLRB to Revisit Key Bush-Era Union Recognition Precedents

NLRB to Revisit Key Bush-Era Union Recognition Precedents

Signaling that reversal of two employer-friendly precedents of the George W. Bush-era NLRB is a serious possibility, the NLRB released a series of split decisions granting review over two groupings of cases concerning union recognition. In a series of 3-2 decisions dated August 27, but released on August 31, the full Board opened the door to revisiting two key precedents of the Bush-era NLRB:  Dana Corp., 351 NLRB No. 298 (2007) and MV Transportation, 337 NLRB No. 129 (2002), which themselves reshaped the recognition bar doctrine and the successor bar doctrine, respectively.

In its Dana Corp. decision, the then-majority Republican Board determined that under the “recognition-bar” doctrine, employees possessed a 45-day window to file a petition for an election or decertification after being notified that the employer has voluntarily recognized a union based on a union’s showing of majority support through union-authorization cards signed by employees (i.e., “card-check”). This represented a departure from a 1960s-era precedent that limited challenges after voluntary recognition for a reasonable period of time.

In Dana Corp., the Board held that a petition for a formal Board election is barred only where (1) unit employees have been notified via a Board-authorized posting of the employer’s recognition of the union and have been notified of their right to file decertification petitions or to support petitions of rival unions, and (2) no valid petition is filed within 45 days from the date of notice.  It is possible that the current majority Democratic Board would seek to return to the pre-2007 standard.

In its MV Transportation decision, the then-majority Republican Board held that, a rival union, the successor employer, or the employees themselves may challenge an incumbent union’s majority status in successorship situations. Under this decision, which overturned a Clinton-era NLRB precedent, St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), the majority status of the incumbent union in a successorship situation is tenuous, receiving nothing more than a rebuttable presumption going forward.  The majority Democratic Board could return to the St. Elizabeth Manor, Inc. standard, in which employees of a newly-acquired unionized employer could not seek to decertify the union until after “a reasonable period of time for bargaining” with the new employer has passed.

Democratic Members Craig Becker and Mark Pearce, and Chairman Wilma Liebman voted in favor of the decisions to review, which were issued over the vigorous dissents of Republican Members Peter Schaumber (on the final day of his term) and Brian Hayes. In advance of its review, the NLRB has invited interested parties to file amicus briefs to address both lines of cases.