Wyatt Employment Law Report

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The NLRB “Flip-Flops” Again

By George J. Miller

Labor law involves balancing many interests of employers, employees, and labor unions.  The National Labor Relations Board is the federal agency created by Congress in 1935 to balance these interests in the first instance, subject to review by the federal courts of appeals.  Students of labor law know that the NLRB has frequently overruled previous NLRB decisions and has sometimes overruled those decisions multiple times on the same issue of law.  For example, between 1962 and 1982, the NLRB overruled prior NLRB decisions three times on the issue of whether or not false election campaign propaganda will warrant setting aside an election and ordering a second election.  See Midland National Life Insurance Co., 263 NLRB 127 (1982). 

Arguably, this flip-flopping is attributable to the political party of the majority of the members of the Board at a given time and their views about the relative weighting of the interests of employees, employers, and labor unions.  It may also be due to changes in the types of people appointed to the Board that began in the Reagan administration, as suggested by some commentators.

Three weeks ago the NLRB flip-flopped again when it overruled two decisions of the “Bush” Board, which in turn had overruled decisions of the “Clinton” Board.   The two most recent decisions are Lamons Gasket Co. and UGL-UNICCO Service Company, which involved fundamentally the same issue: how to balance (a) the right of employees to freedom of choice in deciding whether or not to continue to be represented by the same labor union, a different union, or none at all, and (b) maintaining the incumbent union’s status as the exclusive bargaining representative of the employees by barring the employees from challenging the union’s status in an election for a “reasonable” period of time after either a voluntary recognition of the union by the employer or the sale of the company to a successor employer.  A majority of the Obama Board (Chairman Liebman and Members Becker and Pierce) decided in favor of the latter, reasoning that doing so furthers the goal of the law to maintain stability in labor/management relations and restores Board law to what it had been for many years before the Bush Board disturbed it.  In both cases, Member Hayes, a Republican, dissented, reasoning that the Board lacked a rational basis for overruling the Bush Board decisions.

The practical effect of these new decisions, if they are ultimately enforced by the courts of appeals, is that after an employer voluntarily recognizes a union, or after it becomes a successor to an employer which had a duty to bargain with a union (e.g., after purchasing the company), the incumbent union’s status as the employees’ exclusive bargaining representative cannot be challenged for at least six months after the first bargaining session, the period of time which the Board in both cases ruled is a reasonable period of time in these and future similar cases.