NLRB Rulings Affect New Collective Bargaining Relationships

In two new three to one decisions, the National Labor Relations Board overruled cases from 2002 and 2007 that addressed collective bargaining relationships.

Lamons Gasket Co. concerns the new bargaining relationship created by an employer’s voluntary recognition of a union based on a showing of support by a majority of employees. Dana Corp, issued in 2007, allowed for the immediate challenge of union’s status by 30 percent of employees or a rival union. Lamons prevents immediate challenges and requires a “reasonable period” before challenges can be made to a union’s representative status.
UGL-UNICCO Service Company examines the period following a change of ownership of a company with a unionized workforce. It overrules the 2002 decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30 percent of employees, the new employer, or a rival union. UGL holds that the new bargaining relationship between the incumbent union and the new employer is protected for a reasonable period of time during which the union’s status is immune to challenge.
These decisions also define “a reasonable period” for the first time. In the case of voluntary recognition, the period is from six months to one year, depending on the circumstances. In a successorship, the relationship is protected for six months if the new employer adheres to the existing contract, and for one year if the new employer imposes new terms and conditions of work upon assuming the company.
Dissenting Board member Brian Hayes wrote that the majority’s decision bars the exercise of employee free choice in voluntary recognition and successorship situations. He wrote that this ruling reflects, “a purely ideological choice, lacking any real empirical support and uninformed by agency expertise. They have failed to provide any reasoned explanation why the policies they advocate are preferable to the reasonable policies established in the precedent they now overrule. As such, their holdings are not entitled to deference and should be put to strict scrutiny upon judicial review.”