Tuesday, August 30, 2011
Not surprisingly, some bigger cases decided at the end of Wilma Liebman's term are coming out. I haven't had time to read these yet (the Board just issued an announcement on them), but the summaries given by the Board follows. The first two cases deal with challenges to a union's majority status. In addition to the specifics detailed below, the Board define “a reasonable period” of time under the new (or new-old) rules: in voluntary recognition cases, a reasonable period will range from six months to one year, depending on the circumstances. In successorship cases, a reasonable period will be six months if the new employer follows the existing contract, and up to one year if the new employer imposes its own terms and conditions.
focuses on the new bargaining relationship created by an employer’s voluntary recognition of a union based on a showing of support by a majority of employees. For over forty years, federal law had barred challenges to a union’s representative status for a “reasonable period” following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Today’s decision in Lamons Gasket returns the Board to the law as it existed before Dana Corp.
In the second decision, UGL-UNICCO Service Company, the NLRB reversed MV Transportation's expansion of employees' ability to challenge a union's status following a sale or merger of the company:
It overrules the 2002 Board decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30% of employees, the new employer, or a rival union. The MV Transportation decision in turn reversed a 1999 decision in St. Elizabeth Manor, Inc., under which the new bargaining relationship between the incumbent union and the new employer was held to be protected for a reasonable period of time without a challenge to the union’s representative status. Today’s decision returns the Board to that doctrine.
Finally, a third case--addressed in a separate announcement--is Specialty Healthcare. That case deals with appropriate bargaining units in non-acute health care facilities (acute care facilities have their own published rule). Specialty Healthcare:
overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces. The Board majority found that the 53 CNAs who sought an election in Specialty Healthcare constituted an appropriate unit, and remanded the case to the region to schedule an election.
The line-up was 3-1 in all of the cases, with the usual suspects on each side.
Hat Tip: Patrick Kavanagh