By Patrick Scully
The National Labor Relations Board ("NLRB" or "Board") has spent the last several months revisiting and reversing rules and decisions that have stood since the Clinton, Carter, and even Johnson Administrations. On the occasion of Chairman Wilma Liebman's departure (on August 27, 2011), the Obama Board got around to reversing some Bush Board decisions. As many had forecast, the NLRB overturned Dana Corp., 351 NLRB 434 (2007), and MV Transportation, 337 NLRB 770 (2002), decisions that issued during the Bush ("W") Board years. The Board then overturned Park Manor Care Center, 305 NLRB 872 (1991), which was issued during the Administration of President George H.W. Bush. The NLRB also issued its Final Rule requiring that all employers post a Notice of Employee Rights under the NLRA, a move that may be beyond the NLRB's statutory authority.
No Election Petitions For a Period After a Voluntary Recognition. In Lamons Gasket Company, 357 NLRB No. 72 (Aug. 26, 2011), Chairman Liebman and Members Pearce and Becker held that Dana Corp., which allowed employees 45 days to challenge their employer's voluntary recognition of a union, was "flawed factually, legally, and as a matter of policy." Accordingly, the Board reversed Dana Corp., ruling that an employer's voluntary recognition of a union bars "election petitions or other challenges to a union's representative status" for at least six months and no more than one year, from the first session of collective bargaining. In finding the Dana Corp. "window" "unnecessary," the Board majority observed that there had been only 17 decertifications of a voluntarily recognized union under the Dana Corp. rule. The Board majority gave no reason why it was appropriate to invalidate the statutory rights of the employees in those 17 elections.
No Election Petitions For a Period After Sale of Business. The Board similarly concluded in UGL-UNICCO, 357 NLRB No. 76 (Aug. 26, 2011), that allowing employees to vote on union representation when there is a new "successor" employer that buys the employer's business is inconsistent with policy, especially "in the context of today's economy." Apparently, the Board is under the misimpression that corporate mergers and acquisitions are far more prevalent today than in previous years. The UGL-UNICCO decision thus reinstated the "successor bar" to an election described in St. Elizabeth Manor, 329 NLRB 341 (1999), a decision which had overturned a 15 year precedent rejecting the Board's previous brief foray into the successor bar doctrine. The Liebman Board claimed to reinstate the bar to promote "stability" in long-standing collective bargaining relationships, but neglected to discuss the fact that a new employer would not have been a party to any such relationship.
Traditional Community of Interest Test Applies to Non-Acute Healthcare Facilities. In Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), the Board overruled Park Manor Care Center, 305 NLRB 872 (1991), in which the NLRB had established special community of interest rules for nursing homes and other non-acute healthcare facilities. The Liebman Board instead adopted the "traditional" community of interest test, which, in Specialty Healthcare, permitted the union to demand an election in a group of certified nursing assistants (CNAs) that excluded other non-professional employees. In concluding that unions can now seek elections in much smaller groups of employees in healthcare facilities, the NLRB declared the Park Manor rule "obsolete," stating "it is no longer sound policy to focus on a rulemaking record created over two decades ago." The NLRB did not explain why the reestablishment of a "successor bar" conceived of over 26 years ago somehow is appropriate from a policy standpoint.
Notification of Employee Rights. The Board's Final Rule for Notification of Employee Rights, announced on August 26, 2011, was published in the Federal Register on August 30, 2011. The Rule requires all private employers to post a notification of employees' rights under the National Labor Relations Act. The Rule will take effect on November 14, 2011 and the Board will issue the official posting on November 1, 2011. Under the Rule, employers will have to "physically" post a notice similar to the notice currently required of federal contractors, which advises employees of their right to form and support labor organizations, collectively bargain, and otherwise engage in "protected concerted activity" to improve working conditions. Employers will also be required to "electronically post" these notices if policy communications to employees are conducted electronically. The failure to comply with the Rule will constitute an unfair labor practice, extend the statute of limitations for violations of the Act, and may be considered "evidence" of an unlawful employer motivation in an unfair labor practice case.
Summary. These final actions of the "Liebman Board," while expected, typified Chairman Liebman's consistent attempts to expand both the reach of the NLRB and the opportunities for labor organizations to organize and retain bargaining units. As with many of her decisions, Chairman Liebman closed her term by elevating the promotion of collective bargaining over employee choice.
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©2011 Sherman & Howard L.L.C. September 1, 2011