Closing the Decertification Window: NLRB Decision Applauded by Labor

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.