On National Labor Relations Board (“NLRB”) Chairman Wilma Liebman’s last day before retirement, the NLRB issued three decisions overturning years of Board precedent concerning bargaining unit composition and employee rights to vote to decertify their union representatives. Each decision expands the power of unions while restricting employee and employer rights under the National Labor Relations Act (“NLRA”). Together with the recently published NLRA rights posting rule and the soon expected fast-track union election rules, the NLRB has taken clear steps to tilt drastically the playing field in favor of unions. For the first time, the NLRB is aggressively changing the rules to make it easier for unions to organize employees and to keep them organized.
With the defeat of the Employer Free Choice Act (“EFCA”) in the U.S. Congress in 2009 and 2010, the NLRB has unleashed an aggressive administrative effort to provide unions with many of the advantages contained in EFCA without congressional ratification. Every employer must recognize the pro-union changes the NLRB has made to ensure readiness to respond to the future union organizing efforts that these decisions encourage.
Specialty Healthcare, 357 NLRB N0. 83 (August 26, 2011)
The NLRB gives a preference to union-proposed bargaining units.In Specialty Healthcare, the Board established a new standard for determining whether an employer may add to or challenge a petitioned-for-unit of employees. Specialty Healthcare involved appropriate bargaining units in nursing home facilities. The employer argued that the union-proposed unit should include maintenance and food service employees as well as certified nurse assistants.
The Board rejected its own longstanding precedent and established a new standard for determining whether unions may propose a unit comprised of only a small group of employees over an employer’s objection that other employees share a “community of interest” with the proposed group.
Under the Board’s new standard, a union-proposed bargaining unit is presumptively appropriate and employers must prove that the excluded employees share an “overwhelming community of interest” with the employees included in the union-proposed unit. The NLRB’s requirement for an “overwhelming community of interest” will make it more difficult for an employer to succeed in changing the composition of a union-proposed unit. This means that employers will be unable to insist upon a truly representative union election and will be faced with the prospect of multiple smaller bargaining units and multiple negotiations and labor contracts in cases where a union is certified.
UGL-UNICCO Service Company, 357 NLRB No. 76 (August 26, 2011).
Unions protected from employee challenges following a merger or acquisition.In UGL-UNICCO Service Company, the NLRB overturned precedent to protect an incumbent union from facing a vote of its members after a corporate merger.
An employer who purchases the assets of another employer must recognize and bargain with an incumbent union when there is “substantial continuity” between the two business operations and a majority of the purchasing employer’s employees were employed by the predecessor employer under a union contract. Under prior NLRB precedent, employees of the purchasing employer had the right to seek an election to determine whether to decertify the incumbent union or select a new union after the asset sale.
In UGL-UNICCO Service Company, the Board majority eliminated the employees’ right to challenge an incumbent union and created “a conclusive presumption of majority support for a defined period of time, preventing any challenges to the [incumbent] union’s status.” This decision drastically limits employee choice with respect to representation by prohibiting employees from challenging an incumbent union’s status for a minimum of six months and up to one year after a change in employer due to an asset purchase or merger.
Lamons Gasket, 357 NLRB No. 72 (August 26, 2011).
Voluntary recognition bars decertification for up to one year.In Lamons Gasket, the NLRB expressly overruled its four-year old decision in Dana Corp., 351 NLRB 424 (2007). In Dana Corp., the NLRB allowed employees or a rival union to challenge the majority status of a union after an employer voluntarily recognized it as the representative of its employees (typically through a card check procedure). “Voluntary recognition” is a process by which an employer agrees to recognize a union as the exclusive representative of a group of its employees without an NLRB-conducted secret ballot election. Under Dana Corp., the employer could post a notice following voluntary recognition advising its employees that they had up to 45 days to challenge the union’s majority status through an NLRB-conducted election. The Dana Corp. rule was designed to give employees the option of voting on a union before a contract was negotiated. The NLRB’s “contract bar” rule prohibits representation elections during the term of a labor contract for up to three years. The NLRB’s decision in Dana Corp. was designed to allow employees an opportunity to change or get rid of their union representative before entering the contract bar period when they would be prohibited from doing so.
The Lamons Gasket decision overturned Dana Corp. andre-imposed a complete “voluntary recognition bar” that blocks any challenge to the union’s majority status for a minimum of six months and for as long as one year prior to the negotiation of a contract.
What Should Employers Do?
In addition to these three decisions, the NLRB is expected to issue new regulations requiring that all representation elections take place within two to three weeks of the date a union files a petition. This will reduce the period during which an employer can legally make the case against unionization by more than half. With the decision in Specialty Healthcare, employers’ ability to challenge the composition of a union-proposed bargaining unit is also limited. In the end, employers will have less time to oppose a union organizing campaign and fewer options available to do so. Although there are reports that the U.S. Congress plans on taking action to stop the NLRB from implementing its accelerated election rules, until those plans become law, employers must be prepared.If your employees are not unionized, you should anticipate an increased potential for union organizing activity. Employers should ensure that their management and supervisory personnel keep abreast of employee sentiment and address employee issues directly. Importantly, employers may not threaten, conduct surveillance of, or interrogate employees concerning union activities – or promise benefits in exchange for rejecting a union. However, ensuring good management/employee communication and keeping your finger on the pulse of your employees by regularly discussing work place issues is lawful. Employers may also notify their employees of their opinion of unions and the drawbacks of unionization in language that is not disparaging or threatening toward employees. Employers should also review their workplace solicitation, distribution and posting rules to ensure that they are consistent with the decisions of the NLRB and that they are consistently enforced. Finally, to have a fighting chance against a union organizing campaign, employers must be prepared to launch a campaign at a moment’s notice.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, regularly appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about these decisions or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.