Unions Get Another Boost From NLRB

By Porter Wright on September 6, 2011

Once a union has established majority support among a group of employees, the union’s right to represent those employees continues as long as the majority support continues. Employees can demonstrate they no longer want a union to represent them in a variety of ways. They can file a decertification petition with the NLRB to have an election conducted to see if the union still has majority support. Also, if a majority of the represented employees demonstrate clearly that they no longer want the union to represent them, such as by signing an uncoerced petition that was not initiated or supported by the employer, then the employer might be justified in no longer recognizing the union.

However, certain presumptions exist that protect a union for specified periods of time from any attack on their majority status. For example, the typical method by which unions establish majority support is in an NLRB-conducted certification election. If the union wins the election, the union enjoys an irrebuttable presumption of majority support for one year from the date the election results are certified. Also, if a collective bargaining agreement ("CBA") is signed between the employer and the union, the union enjoys a presumption of continued majority support for the length of the collective bargaining agreement, up to a maximum of three years. In two recent decisions, the NLRB reversed existing law in a way to give unions even greater protections from challenges to their majority support.

In UGL-UNICCO Service Company (NLRB Case 1-RC-22447), the Board considered how long a union should have a presumption of majority status when the company whose employees they represent is purchased by a new owner. Under certain circumstances, the purchaser of a business becomes a "successor" to the bargaining relationship and must recognize and bargain with the union. The successor does not always have to adopt the existing CBA and, in many cases, has the right to establish its own initial terms and conditions of employment and then bargain with the union for a new CBA. In UGL-UNICCO, the NLRB considered whether the union should enjoy any period of presumed majority support in a successorship situation.

The NLRB reversed existing law established in 2002, which was that in a successorship situation, the union enjoys only a rebuttable presumption of majority support. Under the old law, clear evidence that the union no longer had majority support justified the successor employer refusing to recognize and bargain further with the union. The UGL-UNICCO decision reverses that precedent and re-establishes a "successor bar" doctrine which gives the union in a successorship situation an irrebuttable presumption of majority support for a specified period of time. The union will be presumed to have continued majority support for "a minimum of six months and a maximum of one year, measured from the date of the first bargaining meeting between the union and the [successor] employer." In situations where the successor employer chooses to continue the existing terms and conditions of employment as the starting point for bargaining, the presumed majority support will be for six months. In situations where the successor employer exercises its right to reject existing terms and conditions and implement its own initial terms and conditions while bargaining proceeds, the presumed period of majority support will be no less than six months and no more than one year.

To determine in those cases when the presumption of majority support elapses between six months and one year, the Board will consider:

the complexity of the issues being negotiated; the time elapsed since bargaining began and the number of bargaining sessions;
the amount of progress made in the negotiations and how near the parties are to concluding an agreement; and
whether the parties are at impasse.

With this decision, unions will enjoy a longer period of time of protection against any effort to unseat them due to a lack of majority support after a new owner buys the business.

In another decision issued the same day, the NLRB strengthened the presumption of union majority support in cases where there has been a voluntary recognition of the union. An employer has the right to recognize a union as a majority representative of a group of employees even without an NLRB election if the union has presented evidence of uncoerced majority support, such as a petition or authorization cards signed by a majority of employees. Few employers agree to voluntary recognition based on signed petitions or cards. Most invoke their right to insist instead that the union pursue a secret ballot election conducted by the NLRB. Nevertheless, voluntary recognition sometimes occurs. In 2007, the Bush NLRB ruled in Dana Corp., 351 NLRB 434 (2007) that when an employer extends voluntary recognition, for a period of 45 days, the employees must be given the opportunity to challenge the majority support by a 30% showing of interest in a petition for an NLRB-conducted election.

In Lamons Gasket Company (NLRB Case 16-RD-1597), the Board reversed Dana Corp. Specifically, under Lamons Gasket Company, after voluntary recognition by an employer, a union enjoys a presumption of continued majority support for a "reasonable period of time." What is a "reasonable period of time"? Not surprisingly, the Lamons Gasket Company decision applies the very same standard adopted in UGL-UNICCO. Therefore, when an employer voluntarily recognizes a union, the union will enjoy a presumption of continued majority status for no less than six months and no more than a year, measured by the same principles described above from the UGL-UNICCO case.