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.

 

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced…

Justin F. Keith represents employers in all areas of labor and employment law—including litigation of discrimination, harassment and retaliation claims, reductions in force, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

He is experienced with wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.

Justin is a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin’s practice encompasses all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010).