Union Rights Under the Obama Board

By: Brian Rosen

Three significant and wide reaching decisions concerning union rights were issued by the National Labor Review Board (NLRB) in late August, 2011. Decided on Chairman Wilma Liebman’s last working day of the term at the NLRB, all three decisions, Lamons Gasket Co., 357 N.L.R.B. No. 72 (2011); UGL-UNICCO Service Co., 357 N.L.R.B. No. 76 (2011); and Specialty Healthcare & Rehab. Ctr. of Mobile, 357 N.L.R.B. No. 83 (2011), were issued with a 3-1 Democratic majority, leaving the Board’s only Republican Member, Brian Hayes, to dissent in all three decisions.  These three decisions, along with the Board’s recent Final Rule that required all employers covered by the National Labor Relations Act to post a notice in the workplace informing employees of their rights under the National Labor Relations Act, said to promote and facilitate new union organizing in small bargaining units, while protecting new or established union representations from challenges by employers, employees, or rival unions that argue the incumbent union lacks majority support. 

In Specialty Healthcare[1], the Board issued a new standard in for determining whether unions in non-acute healthcare facilities, as well as unions in many other industries, may petition for an election among a small group of employees, overriding an employer’s objection that the union has wrongly excluded other groups of employees from the perspective unit. Replacing the “sufficiently distinct” standard, the Board’s new more heightened standard shifted the burden from employees to employers, who now must prove that the excluded employees share an “overwhelming community of interest” with the employees included in the union’s petition.[2] Although it does not intend to disturb existing industry-specific rules and standards, the Board’s new standard will facilitate union organizing in many industries as it encourages unions to organize in the smallest units possible. When combined with the Board’s Proposed Rule to expedite the union election process, Republican Member Hayes stated that it will be “virtually impossible for an employer to oppose the organizing effort either by campaign persuasion or through Board litigation.”[3]

In Lamons Gaske[4]t, the Board overruled Dana Corp., 351 N.L.R.B No. 424 (2007), a Board decision which established a special process for employees or a rival union to challenge an employer’s voluntary recognition of a union. Rather than the employer posting a notice in the workplace for 45 days following the voluntary recognition, providing employees with the opportunity to petition the NLRB for a secret ballet election to test the union’s majority status under the Dana process, the Lamos Gasket decision reinstates a complete “voluntary recognition bar” that in effect blocks any challenge to the union’s majority status for “a reasonable period of time” following the employer’s voluntary recognition.[5] Under Lamos Gasket, the Board will not hear any challenge to the recognized union’s majority status for a minimum of six months up to one year after the parties’ first bargaining session. In addition, no employer, employee, or union may petition the Board for a secret ballot election, nor may the employer withdraw recognition from the union during this period.[6]  While the specific length of the voluntary recognition bar will depend on a multifactor analysis set forth in Lee Lumber & Building Material Corp., 334 N.L.R.B. No. 399 (2001), it is likely the duration of union protection will be one year.

In UGL-UNICCO[7], the Board overruled a 2002 Bush Board decision, MV Transportation, 337 N.L.R.B. No. 770 (2002), and re-implemented the “successor bar”, intended to block the employees’ ability to select new union representation or no union representation following a lawful “successorship” transaction.[8] As stated by the Supreme Court in NLRB v. Burns Int’l Security Services[9], an incumbent union’s right to recognition may automatically transfer to a new “successor” employer when there is “substantial continuity” between the two business operations and when a majority of the new employer’s employees had been employed by the predecessor.[10] The Board in UGL-UNICCO, reasoned that the dramatic increase in the number and scale of corporate mergers and acquisitions over the past few decades have placed the unions involved in the transactions in a vulnerable position, and the “successor bar” is intended to ensure the incumbent union a “reasonable” time period free of any potential challenge concerning employee representation in collective bargaining with the successor employer.

Overall these three Obama Board decisions represent a renewed facilitation and protection of union rights, and a departure of the pro-employer position taken by the Bush Board.

[1] 357 N.L.R.B. No. 83 (2011).

[2] See id.

[3] Id.

[4] 357 N.L.R.B. No.72 (2011).

[5] Id.

[6] Id.

[7] 357 N.L.R.B. No. 76 (2011).

[8] Id.

[9] 406 U.S. 272 (1972).

[10] Id at 301.

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