As we predicted in September 2010, with the Employee Free Choice Act stalled in Congress, a majority of the National Labor Relations Board (the “Board”) has taken the opportunity to overturn two key employer-friendly decisions from the Bush-era Board, boosting the prospects for union card check campaigns.
In Lamons Gasket, the Board overturned its 2007 decision in Dana Corp, which held that when an employer agrees to voluntarily recognize a union based upon a card check, dissenting workers could unwind the results of a successful union card check campaign, as long as the dissenters filed a decertification petition no more than 45 days from the date of receiving notice of the employer’s recognition of the union. Under Dana, employers were required to post a notice for employees informing them of these rights. In overturning Dana and returning to its decision in Keller Plastics, the Board reinstituted the voluntary recognition bar, which holds that employers, employees, and rival unions must wait for a “reasonable time” (usually around 6 months) after a company’s voluntarily recognition of a union before seeking to decertify it, thus protecting that newly formed relationship between the employer and the union from challenge. The Board also held that this “new” rule will be applied retroactively to all pending cases except those in which an election was held and the ballots have been opened and counted.
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