This week (and just prior to the expiration of Chairman Liebman’s term), the NLRB released two significant decisions, each of which undo procedural safeguards put in place by prior Board decisions to ensure employee free choice. First, in Lamons Gasket Co., 357 NLRB No. 72, the Board reversed its 2007 decision in Dana Corp. Under Dana Corp., employers who voluntarily recognized unions were required to post a notice for 45 days informing employees of the voluntary recognition and advising them of their rights incident to that recognition. During this period, a petition could be filed by another union seeking to represent the same employees, or employees could file a decertification petition to undo the effects of the employer’s voluntary recognition and expressly reject union representation. Now, under Lamons Gasket, after an employer voluntarily recognizes a union, no challenge to the union’s representative status will be considered until a “reasonable period of time” has passed after voluntary recognition, ranging from six months to a year, depending on the circumstances.
In the second major decision released this week, in UGL-UNICCO Service Company, 357 NLRB No. 76., the Board overruled MV Transportation. Like Lamons Gasket, UGL-UNICCO changes the law, this time regarding the successor bar doctrine. Under MV Transportation, after a sale or merger, a union’s representative status could be immediately challenged by a rival union or a group of employees who filed a decertification petition. Now, under UGL-UNICCO, and like Lamons Gasket, the union ‘s status as the employees’ representative cannot be challenged for a “reasonable period of time” following a sale or merger. In the successorship context, this period will be six months where the new employer adheres the existing union contract, and up to one year where the new employer exercises its legal right to set new initial terms and conditions of employment.