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Recent NLRB Decisions Grant Additional Assistance and Protection to Unions

On August 27, 2011, National Labor Relations Board (“Board”) Chairman Wilma Liebman left the Board after 14 years. 

Prior to the end of her term, she and the two other members of the Obama Board’s Democratic majority issued three decisions that overruled established precedent and dramatically modified existing Board law.  These decisions, set forth in more detail below, will further assist union organizing efforts, and also protect incumbent unions who no longer are supported by a majority of their members.   

The Board Adopted a New Standard to Assist Unions Who Seek to Organize Employees Incrementally

Of the three decisions, Specialty Healthcare likely will have the greatest impact on employers.  It is not uncommon for a union to attempt to organize a workforce incrementally, by initially seeking to represent a relatively small group, or “bargaining unit,” of employees, in order to get its “foot in the door” with the remaining employees.  An employer may combat this technique by attempting to force the union to organize a larger bargaining unit, which may more accurately reflect the workforce’s preferences concerning unionization.  Under prior Board law, a union could obtain an election involving the smaller bargaining unit only if it proved that this smaller group of employees was “sufficiently distinct” from the larger group. 

Specialty Healthcare turns this rule on its head, and now requires the employer to prove that the bargaining unit should include the larger group of employees.  After reversing Park Manor Care Center, a case that set forth unique rules for determining appropriate bargaining units at non-acute health care facilities, the Board then changed its rule for all cases where an employer contends that a requested bargaining unit is inappropriate because it does not contain additional employees.  Under the Board’s new rule, where a union makes the relatively minimal showing that the petitioned-for bargaining unit is simply an appropriate unit, the employer must establish that the additional employees share an “overwhelming” community of interest with the smaller group of employees.   

As a practical matter, it will be difficult for employers to satisfy this test.  The Board’s lone Republican member, Brian Hayes, recognized in a blistering dissent that the new rule will “encourage[] unions to engage in incremental organizing in the smallest units possible” and, combined with the Board’s new proposed rules that will expedite the election process, “make it virtually impossible for an employer to oppose [a union] organizing effort either by campaign persuasion or through Board litigation.”  Altogether, this new standard is another tool that the Obama Board has given to unions who seek to expand their membership.   

The Board Implemented New Protection for Unions Who Have Been Voluntarily Recognized

On occasion, an employer facing a union organizing campaign may choose to voluntarily recognize a union and begin bargaining, rather than wait to see if the union prevails in an election.  The Board currently allows an employer to voluntarily recognize a union without an election, provided that the union shows that a majority of the employees support it.  Nevertheless, in the Board’s 2007 Dana Corporation decision, it recognized that voluntary recognition can undermine employee free choice and, to remedy this problem, held that employees may challenge a voluntarily recognized union by moving for an election and attempting to decertify the union.   

In Lamons Gasket Company, the Board overruled Dana Corp. and eliminated employees’ rights to move for elections shortly following voluntary recognition.  Instead, the Board held that employees may not challenge a voluntarily recognized union for at least six months.  This six month “recognition bar” also may continue for as long as one year, depending on the circumstances of the parties’ contract negotiations.  Altogether, this new rule ensures that a voluntarily recognized union will remain employees’ bargaining representative for at least six months, regardless of whether a majority of its members support it. 

The Board Implemented New Protection for Unions Following Mergers and Acquisitions

Finally, in UGL-UNICO, the Board implemented another type of “bar” to protect unions following mergers or acquisitions.  Under existing Board law, where an organization undergoes one of these “successorship transactions,” the new successor employer may retain some of the predecessor employer’s labor obligations.  The successor employer will be required to bargain with the union that represented the predecessor’s employees if there is a “substantial continuity of operations” between the predecessor and the successor.  Additionally, the successor will be bound by a collective bargaining agreement (“CBA”) between the predecessor and the union if it is “perfectly clear” that the successor intends to continue employing all of the predecessor’s employees.  If the new employer is not a “perfectly clear successor,” however, it may unilaterally modify employees’ terms and conditions of employment from those existing under the predecessor, provided that it announces these changes before it takes over. 

Pursuant to MV Transportation, which was overruled in UGL-UNICO, this successorship right created a rebuttable presumption in support of continued union representation.  However, employees could decertify the existing union, or select a new union, if no labor agreement had been agreed to between the union and successor employer.  Therefore, under prior law, the Board presumed that a majority of a predecessor’s employees continued to support a union, but also recognized that employees’ preferences regarding unionization may change following a sale or merger.  Accordingly, in these situations, the Board permitted employees to move for an election and attempt to decertify the union. 

In UGL-UNICO, the Board overruled this precedent, eliminated this election procedure, and held that employees may not challenge unions for at least six months following the date the successor employer first bargains with the union.  This decision does not alter a successor employer’s right to unilaterally implement new terms and conditions of employment (provided that it is not a “perfectly clear successor” and announces these changes before it takes over).  Nevertheless, under UGL-UNICO, if a successor employer exercises this right, the “successor bar” may be extended for up to six additional months. 

Finally, the Board reiterated that this “successor bar” may operate in conjunction with a “contract bar” and protect a union from challenge for an even longer period of time.  The Board’s “contract bar” doctrine insulates a union from challenge after the employer and union execute a CBA for either three years or the length of the CBA, whichever is shorter.  The Board in UGL-UNICO held that, even if a union is protected by this successor bar, the contract bar nevertheless may apply for up to two years.  Accordingly, where an employer purchases a predecessor, bargains with the union, and executes a CBA, the union may be protected from challenge for up to three years, regardless of whether a majority of the employees continue to support it.  

Board Changes the Playing Field for Incumbent Unions and Union Organizing Efforts

Altogether, these decisions are a continuation of the Obama Board’s efforts to aid union organizing and collective bargaining.  By reversing the above-referenced precedent, and also by requiring employers to post labor law notices and seeking to modify election procedures, the Board has created a new playing field that will require employers to modify their strategies for bargaining with unions and opposing union organizing campaigns.  While there remain lawful and effective strategies that you can use to combat unionization and protect your right to run your business, it is now more important than ever to prepare these strategies in advance. 

If you have any questions about the Board’s recent actions or your rights under federal labor law, please contact a member of Greenebaum’s Labor and Employment Practice Group.

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