• NLRB Revisits Decertification in Voluntary Successorship and Recognition Situations
  • September 19, 2011
  • Law Firm: Barnes Thornburg LLP - Indianapolis Office
  • 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.