In a series of controversial 3-1 decisions issued last week, the National Labor Relations Board further insulated collective-bargaining relationships from challenge by modifying the “recognition bar” doctrine and re-establishing the “successor bar” doctrine, and reduced the standards a union must meet to establish an appropriate bargaining unit. All three decisions by the Democratic-controlled Board will have widespread implications for employers.
The first case, Lamons Gasket Co., 357 NLRB No. 72, reversed the Board’s 2007 decision in Dana Corp., 361 NLRB 434 (2007), and returned to prior policy which bars an election petition for a reasonable period of time after an employer voluntary recognizes a representative based on a showing of the representative’s majority status. In Dana Corp., the Board modified the “recognition bar” doctrine by establishing a 45-day “window period” for employees to file a petition for an election after being notified that their employer had voluntarily recognized a union based on the union’s showing of majority support.
In overruling Dana Corp., the Board returned to the policy established in Keller Plastics Eastern, Inc., 157 NLRB 583 (1966), under which an employer’s voluntary recognition of a union, based on a showing of majority support, prohibits a petition for an election for a “reasonable period of time.” The Board defined a reasonable period of time as no less than six months after the parties first bargaining session and no more than one year.
The Board’s decision is intended to give new bargaining relationships an opportunity to succeed by barring challenges to that relationship. The Board noted that the decision in Dana Corp., was based on a suspicion that “employee choices which must precede any voluntary recognition are often not free and uncoerced,” which the Board claimed to be “unfounded.” In addition, the Board found that, during the past four years of practicing the Dana Corp. procedures, the procedures themselves proved unnecessary and in contravention of the Act.
Chairman Liebman, and members Becker and Pearce joined in the order. Member Hayes dissented, arguing that his colleagues “failed to provide any reasoned explanation why the policies they advocate are preferable to the reasonable policies established in the precedent they now overrule.”
The second case, UGL-UNICCO Service Co., 357 NLRB No. 76, prohibits challenges to an incumbent union following a change in ownership by re-establishing the “successor bar” doctrine that was overturned in the 2002 MV Transportation decision. The Board’s decision is the latest decision in a decades-long battle over the successor bar that evolved from the Board’s 1975 decision in Southern Moldings, Inc. and has been overruled on several occasions largely along partisan lines.
The Board held that where a successor employer has recognized an incumbent union, the union is entitled to a “reasonable period of bargaining,” during which it has an irrefutable presumption of majority status. As in the Lamons Gasket decision, the Board defined a reasonable period of bargaining to be no less than six months and no more than one year. Here, however, the Board established five factors to determine if a reasonable period has elapsed after six months: (1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues that are being negotiated; (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 near the parties are to concluding an agreement; and (5) whether the parties are at impasse.
Member Brian Hayes vigorously dissented from the decision claiming that it protects “labor unions, not labor relations stability or employee free choice” by providing unions protections beyond what the law requires or provides.
Last, in Specialty Healthcare 357 NLRB No. 83 the Board created a heightened standard for any employer contending that employees in a petitioned-for unit should be placed in a broader bargaining unit. Employers must now show that the petitioned-for unit shares an “overwhelming community of interest” with the larger unit of employees. Specifically, where a union seeks an election in a unit of employees which is readily identifiable as a group, and where the Board finds that the employees share a “traditional community of interest,” the petitioned-for unit shall be deemed appropriate for bargaining unless the Employer can demonstrate that the employees it would add to the unit share an “overwhelming community of interest” with the petitioned-for unit.
Member Hayes criticized the majority’s ruling for encouraging “union organizing in units as small as possible,” and for making it “virtually impossible” for employers to oppose such organizing efforts. He warned that the resulting fragmentation of the workforce would lead to increased collective bargaining costs and compromise labor relations stability.