Good News for Labor Stability as NLRB Prepares for Leadership Change
Chairperson Wilma Lieberman may be saying goodbye to the Board, but not before issuing some positive decisions restoring a degree of stability to newly formed or newly changed labor relationships. On August 26, 2011, the Board -- under Lieberman's leadership -- published its decisions in the Lamons Gasket Co. and UGL-UNICCO Service Co. cases. These decisions are responsible for reinstating the so-called "voluntary recognition bar" and the "successor bar," which protect the status of a union as exclusive bargaining representative following either voluntary recognition by an employer or a change in employer ownership.
In Lamons Gasket Co., the Board revived the decades-long rule barring immediate challenges to a union's status for a "reasonable period" following voluntary recognition. This had been the rule since 1966, when the Board decided in Keller Plastics Eastern to adopt the Supreme Court's reasoning in Franks Bros. Co. v. NLRB,321 US 702, 705 (1944), that "a bargaining relationship once established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." In 2007, that rule was gutted by the Board's Dana Corp. decision, which required a 45-day window period immediately following voluntary recognition in which 30% of employees, or a rival union, could petition to overturn the union's new status. In overturning Dana Corp., the Board again prohibits such challenges for a minimum of six, and a maximum of twelve, months following voluntary recognition and rejects the idea that a relatively small group of employees, or a rival union, can undermine the collective choice, fairly and democratically expressed, of the majority of employees.
Similarly, in UGL-UNICCO Service Co., the Board overturned its 2002 MV Transportation decision, reinstating the rule prohibiting challenges to a union's status immediately following the sale or merger of the employer. In MV Transportation, the Board threw out this "successor bar" rule, which had been established by the Board in 1999 in the St. Elizabeth Manor, Inc. decision. This change allowed for 30% of employees, a rival union, or the new employer itself to challenge the incumbent union's status. With UGL-UNICCO Service Co., the Board reinstates a prohibition of such challenges for six months where the new owner assumes the existing contract, or 12 months where the new owner imposes new terms and conditions.