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Closing the Decertification Window: NLRB Decision Applauded by Labor

Kari Lydersen

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The National Labor Relations Board is changing labor law in profound ways”

If workers present an employer with evidence that a majority of employees want to be represented by a given union – usually via signed cards (a card check”) – then the employer can and often does voluntarily recognize the union.

But a 2007 decision by the National Labor Relations Board meant that anti-union workers could immediately and for up to 45 days file a decertification petition trying to get rid of the new union. Aside from that window, a petition cannot be filed until a contract is within three months of expiring, has already expired or is at least three years old.

The window for immediate decertification was closed by one of three union-friendly NLRB decisions on August 26 that overturned Bush-era policies and were seen as victories for labor in the final days of NLRB chairman Wilma Liebmans term. (The Clinton appointee, widely supported by unions, was reappointed by President Bush and named chairman by President Obama in 2009, and drew much fire from business groups.)

In a September 2007 decision known as Dana Corp., the NLRB altered a policy existing since 1966 that had barred decertification petitions for a reasonable period” of time after voluntary recognition by the employer.

The August 26 decision, known as Lamon’s Gasket Co., bars decertification petitions for six months after a union wins voluntary recognition. The decision resulted from a United Steelworkers challenge to a decertification petition brought during the window period.

The four-member NLRB (now left with only three members) essentially explained that in 2007, it decided to allow the immediate decertification petitions in case employees had been pressured by union supporters or staff during the card check process – but in reversing the decision, the board concluded that measure was unwarranted:

[T]he extraordinary process established in Dana was, fundamentally, grounded on a suspicion that the employee choice which must precede any voluntary recognition is often not free and uncoerced, despite the law’s requirement that it be so. The evidence now before us as a result of administering the Dana decision during the past 4 years demonstrates that the suspicion underlying the decision was unfounded … [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.

As the website Labor Relations Today noted:

As empirical evidence that the Dana suspicion” was unfounded, the Board now cites that during the last four years, employees decertified the voluntarily-recognized union under the Dana procedures in just 1.2 percent of the 1,133 cases in which Dana notices were requested from the Board.

Another similar NLRB decision on August 26 also makes it harder for a rival union or employer to challenge an existing union after the sale or merger of a company. A previous NLRB decision known as MV Transportation allowed a window after a sale or merger for an existing union to be challenged by a rival union, the employer or 30 percent of employees.

That policy was overturned by the August 26 decision known as UGL-UNICCO Service Co., essentially reverting to a 1999 policy. Now, after a sale or merger, there is a six-month to one-year bar on decertification petitions, depending whether the new owner honors the existing contract or changes provisions of it.

In a statement, Kimberly Freeman Brown, executive director of the pro-union organization American Rights at Work, lauded the decisions:

There’s no doubt that the politicians and pundits hell bent on tearing down the NLRB — and any protections for workers — will attack this decision as radical. But the reality is that this decision restores 40 years of precedent only recently struck down by the notoriously anti-worker Bush board. Today’s ruling is nothing more than a return to a process for voluntary recognition that for years worked just fine for employers and employees alike.

While the two decertification-related decisions are generally seen as a significant victory for labor, some argued that the previous situations made it easier for independent unions to challenge an unresponsive or company-aligned union.
On both decisions, NLRB member Brian Hayes dissented. The U.S. Chamber of Commerce and employer law firms stridently opposed the changes. See a statement from one such firm here.

The employment law firm McGuire Woods warns that employers should expect renewed activism by the NLRB based on these two decisions, along with another on August 26 relating to healthcare, and the earlier posting rule” I blogged about last month:

Over the next four months, we expect the NLRB to issue an increasing number of decisions that overturn existing NLRB standards with the goal of making it easier for unions to obtain and maintain membership … The three August 26 NLRB decisions show that the Board intends to remain active in changing federal labor law in profound ways. We expect more changes of this magnitude in the near future. Existing standards – some established during Bush era and others in existence for decades – may be overturned outright or significantly altered.

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Kari Lydersen is a Chicago-based journalist, author and assistant professor at Northwestern University, where she leads the investigative specialization at the Medill School of Journalism, Media, Integrated Marketing Communications. Her books include Mayor 1%: Rahm Emanuel and the Rise of Chicago’s 99%.

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