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September
7, 2011
National
Labor Relations Board Reverses Course By Limiting Employees' Righ=
ts
to File Decertification Petition After An Employer's Voluntary
Recognition of a Union<=
/p>
By Kurt M. Gr=
aham
and L. Steven =
Platt
In a 3-1 decision, the National Labor Relations Board
("NLRB" or "Board") held that a representation
election petition is barred for a reasonable period of time where=
an
employer has voluntary recognized a union supported by a majority=
of
employees. Lamons Gasket Co=
.,
357 NLRB No. 72 (2011). The decision overturns a 2007 NLRB decisi=
on, Dana
Corp., 351 NLRB 434 (2007), which provided, for the first tim=
e,
benchmarks for determining a reasonable period of time for the
barring of a petition. Specifically, Dana established a 45=
-day
"window period" after voluntary recognition during which
employees could file a decertification petition supported by a 30%
showing of interest. Dana further required that, in order =
to
start the running of the 45 day window period, employers must pos=
t an
official Board notice informing employees of their right to seek =
an
election within the 45-day period to oust the lawfully recognized
union.
A. The Lamons =
Gasket
Decision.
In July 2003, Lamons Gas=
ket
Company entered into an agreement with the United Steelworkers Un=
ion
in which it agreed to voluntarily recognize the union upon
presentation of proof of majority support in the form of signed u=
nion
authorization cards. In November 2009, Lamon=
s
Gasket granted voluntary recognition to the union at its Houston
facility based upon a card check authorization process. As requir=
ed
by the Dana decision, Lamons G=
asket
notified the NLRB that it had recognized the union and subsequent=
ly
posted an official NLRB notice notifying employees of recognition=
and
of their right to seek a decertification election within 45 days.
About two weeks later, an employee filed a timely petition for a
decertification election.
In the meantime, Lamons =
Gasket
and the union began bargaining on a first contract and ultimately
agreed to a collective bargaining agreement on August 8, 2010. On
August 26, 2010, a decertification election was held and the ball=
ots
were impounded pending the union's request for review on whether =
Dana
was controlling with respect to whether the decertification petit=
ion
was timely filed and properly raised a question concerning representation.The union argued the Board s=
hould
overrule Dana because the notice requirement and 45-day wi=
ndow
period "interfere with the freedom of the majority of employ=
ees
to choose their bargaining representative and with that
representative's ability to establish a stable bargaining
relationship with the employer." The employer argued that
"there is no empirical basis for overruling Dana; tha=
t a
secret-ballot election is the preferred method of assessing emplo=
yee
choice; and that Dana provides necessary safeguards, in an=
era
of increasing resort to voluntary recognition, to ensure that a
union's majority support is free and uncoerc=
ed."
The NLRB majority, consisting of Chairperson Liebman and Members Becker and Pearce, foun=
d the
approach taken by the Board in Dana was "flawed,
factually, legally, and as a matter of policy." The Board no=
ted
that voluntary recognition creates a legally recognized and
enforceable relationship between the employer and union and thus
rejected the assertion in Dana that there was good reason =
to
question whether card check recognitions accurately reflect
employees' true choice concerning union representation. The Board
stated Dana did not cite any empirical evidence for making
such an assertion, and, since four years had passed since Dana=
,
there was considerable empirical evidence demonstrating that
"the suspicion underlying the decision was unfounded." =
As a
result, the Board held it was appropriate to return to its rule t=
hat
existing prior to Dana - an employer's voluntary recogniti=
on
of a union that is supported by a majority of employees bars the
filing of an election petition for a reasonable period of time af=
ter
recognition.
The Board also expressly defined for the first time =
what
a "reasonable period of time" is for purpose of barring=
the
filing of an election petition after voluntary recognition. The B=
oard
stated that it will be no less than six months after the parties
began bargaining and no more than one year after bargaining start=
s.
The Board stated it will apply a multi-factor test to determine t=
he
appropriate length of time for a given case and "impose the =
burden
of proof on the General Counsel to show that further bargaining
should be required." The factors evaluated by the Board incl=
ude:
- Whether the parti=
es
are bargaining for an initial contract;
- The complexity of=
the
issues being negotiated and of the parties' bargaining
processes;
- The amount of time
elapsed since bargaining commenced and the number of bargain=
ing
sessions;
- The amount of
progress made in negotiations and how near the parties are to
concluding an agreement; and
- Whether the parti=
es
are at impasse.
B. Dissent<=
/span>
Member Hayes wrote a dissent in which he described t=
he
majority's decision as "a purely ideological policy choice,
lacking any real empirical support and uninformed by agency
expertise." He also accused his colleagues of being interest=
ed
in adhering to long standing Board precedent, employee free choic=
e,
and labor relations stability only "when those policies for =
the
unionization, which they believe in good faith, must be the parad=
igm
for the American workforce." Member Hayes stated that NLRB
election results since Dana was issued four years ago
"show that in one of every four elections held, an employee
majority voted against representation by the incumbent recognized
union. While that 25-percent rejection rate is below the recent
annual rejection rate for all decertification elections, it is
nevertheless substantial and supports the need for retention of a
notice requirement and brief open period." Member Hayes also
stated that the Dana decision was beneficial for unions
because if their voluntary recognition was affirmed through a Boa=
rd
election they gained the additional benefits of formal Board
certification, including a one year bar to any further challenge =
to
their representational status.
C. What Is the Impact of <=
i>Lamons
Gasket on My Organization?<=
/p>
The aftermath of Lamons<=
/span>
Gasket is that it will be far more difficult for employees to
petition the NLRB for a secret ballot election after their employ=
er
voluntarily recognizes a union. That is because any employees
dissatisfied with the employer's decision to voluntarily recogniz=
e a
union, will no longer have a 45-day window period to file a
decertification petition with the NLRB. By removing the 45-day wi=
ndow
period and providing for, at a minimum, a six month period during
which the union's representational status cannot be challenged af=
ter
voluntary recognition, the likelihood of employees successfully
filing a decertification petition under such circumstances is rem=
ote.
As a result, employers should carefully consider whether to volun=
tary
recognize a union where a union claims a majority support among
employees. An employer has a legal right to insist upon a secret
ballot election conducted by the NLRB in such circumstances and
should strongly considering doing so in the event it wants to pro=
vide
its employees with the chance to vote on union representation.
It is also significant that the Board has stated it =
will
apply Lamons Gasket
retroactively in all pending cases, except those in which an elec=
tion
was already held and the ballots have been opened and counted. As=
a
result, if your organization has a pending election petition under
the Dana decision where the ballots have not been opened, =
the
Board will now apply Lamons
Gasket to that proceeding and not further process the petition
where it concludes that the petition was filed within a reasonable
period of time after voluntary recognition.
Conclusion<=
/p>
If you have any questions about Lamons
Gasket and how it impacts your organization, please contact K=
urt
Graham at (616) 608-1144 or kgraham@clarkhill.com; or Steve Platt at (3=
12)
985-594, or splatt@clarkhill.com;
or your Clark Hill labor and employment attorney.
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