By Nelson Cary and Brad Gibson

With the current NLRB, it is good to be a labor union around Labor Day.  Last year, the NLRB handed out an expanded right to engage in "bannering" without running afoul of the NLRA.  This year, the NLRB relieved unions, and the employers who voluntarily recognize them, of the possibility that the majority support for the union might be put to a test in an NLRB-conduct, secret ballot election soon after recognition.  This is the second of three major decisions issued during the flurry of activity at the end of Chairman Liebman’s term.

The NLRA permits an employer to voluntarily recognize a union that establishes majority support among the employer’s employees.  This is sometimes referred to as "card check."  One change EFCA would have brought is to make such recognition mandatory, if the union sought it, rather than voluntary, as the law is today.  The law used to provide that the voluntary recognition could not be questioned for a "reasonable period of time."

In 2007, confronted with the issue of voluntary recognition and concerned about the protection of employee free choice, the NLRB modified the recognition bar doctrine. In Dana Corp., 351 N.L.R.B. 424 (2007), the NLRB permitted a recognition bar only after a 45-day "window period" expired following voluntary recognition.  During this time, employees — or a different union — could file an election petition if at least 30-percent of the employees expressed support. In order to start the 45-day period, employers had to post an official NLRB notice informing employees of their newly created right to seek an election within the 45-day period to oust the lawfully recognized union.

In Lamons Gasket Co., 357 N.L.R.B. No. 72 (Aug. 26, 2011), the NLRB determined in a 3-1 decision to restore a complete "voluntary recognition bar" that blocks any challenge to the union’s majority status for a "reasonable period of time" following the employer’s voluntary recognition. Among other arguments, the majority noted that for 41 years, the law had never required a notice or window period until the NLRB imposed one in the Dana decision. Lamons Gasket expressly overrules Dana.

The NLRB did not stop, however, with merely overruling its precedent.  The majority went on to clarify the phrase "reasonable period of time" as used in the recognition bar context. This period of time will "be no less than 6 months after the parties’ first bargaining session and no more than 1 year." During this period, no employer, employee, or union may petition the NLRB for a secret ballot election and the employer may not withdraw recognition from the union. The specific length of this voluntary recognition bar depends on a multifactor test, which includes:

  1. whether the parties are bargaining for an initial contract;
  2. the complexity of the issues being negotiated and the parties’ bargaining processes;
  3. the amount of time elapsed since bargaining commenced and the number of bargaining sessions;
  4. the amount of progress made in negotiations and how near the parties are to concluding an agreement; and 
  5. whether the parties are at impasse.

In a lone dissenting opinion, Member Hayes (R) accused the majority of making a "purely ideological choice" to overrule Dana without reasoned justification.  He attacked the recognition bar doctrine as not supported by the NLRA and dismissed the majority’s arguments for overruling Dana.

For the labor professional, the decision has mixed implications.  As previously discussed on this blog, whether this is a positive development depends on the circumstances in which an employer finds itself.  If there are reasons why voluntary recognition is appropriate for an employer, the decision may be welcome news.  It removes the uncertainty associated with the Dana notice.  For other employers, the decision is another step towards removing obstacles to union organizing outside the confines of the NLRB secret ballot election process, and further encourages "top down" organizing (e.g., through the use of "corporate campaigns").