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National Labor Relations Board issues decisions in two significant cases addressing protection of new collective-bargaining relationships

In a pair of 3-to-1 decisions made public today, the National Labor Relations Board overruled decisions from 2007 and 2002 that address the protections provided by federal labor law for new collective-bargaining relationships between unions and employers. 

One case, Lamons Gasket Co., focuses on 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. For over forty years, federal law had barred challenges to a union’s representative status for a “reasonable period” following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Today’s decision in Lamons Gasket returns the Board to the law as it existed before Dana Corp.

The other case, UGL-UNICCO Service Company, looks at the period following a change of ownership of a company with a unionized workforce. It overrules the 2002 Board decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30% of employees, the new employer, or a rival union. The MV Transportation decision in turn reversed a 1999 decision in St. Elizabeth Manor, Inc., under which the new bargaining relationship between the incumbent union and the new employer was held to be protected for a reasonable period of time without a challenge to the union’s representative status. Today’s decision returns the Board to that doctrine.

"The Supreme Court recognized more than half a century ago that “a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed,” wrote the majority –Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce - wrote in Lamons Gasket.

Dissenting, Member Brian Hayes wrote that  the majority’s restoration of immediate bars to the exercise of employee free choice, by the preferred means of a Board election, in voluntary recognition and successorship situations, 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.”

The two decisions also define “a reasonable period” under these circumstances for the first time. In the case of voluntary recognition, the period of protection will range from six months to one year, depending on the circumstances. In a successorship, the relationship would be protected for six months only if the new employer adheres to the existing contract, and for up to a year if the new employer imposes new terms and conditions of work on assuming the company.

The Board granted review of both cases and invited briefs from interested parties on August 31, 2010. The decision was finalized and dated on August 26, and was made public today.

This news release constitutes no part of the decision of the National Labor Relations Board. It has been prepared by the Office of Public Affairs for the convenience of the public. For more information about the NLRB, visit our website at /.



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