11/04/2011 02:56:00 PM EST
Lareau on Lamons Gasket: The Demise of Dana Corp.
In Lamons Gasket Co., the NLRB,
split 3-1, overruled Dana Corp., concluding that the decision "was flawed,
factually, legally, and as a matter of policy." In doing so, the Board majority
returned to the recognition bar doctrine as it existed pre-Dana Corp. It also
defined, "for the first time, the benchmarks for determining a 'reasonable
period of time'" when applying the doctrine.
In 1966, the Board held that an
employer's lawful voluntary recognition of a majority union entitled the
parties to a reasonable period of time to negotiate a collective
bargaining agreement free from challenges to the union's majority status. So
was born the "voluntary recognition bar." The bar prospered and
matured under subsequent Board decisions (that were generally supported by the
courts). Then, somewhere around its 41st birthday, a Board majority comprised
of members appointed by a Republican president imposed serious obstacles to the
doctrine's continued well-being. Concerned that the recognition bar worked to
the benefit of only the employer and the union, at the expense of the employee,
the Board put in place a set of notices and procedures to ensure that employees
would have an opportunity to challenge the majority status of the union if they
so desired. Four years later, a Board majority comprised of members appointed
by a Democratic President overruled that decision and restored the status
quo ante - almost.
In this analysis, N. Peter Lareau, author of NLRA: Law and Practice and
numerous other books and articles in the field of labor law, traces the
doctrine's history and comments on the significance that politics plays in the
"administrative expertise" of the Board, to which the courts are
supposed to accord reverential deference.
Initial Establishment of the Recognition Bar: Keller Plastics
Under the Board's decision in Keller Plastics Eastern, Inc., an
employer's lawful voluntary recognition of a union gave rise to an irrebuttable
presumption of union majority status that acted as a bar to an election for a
"reasonable" period of time. The rule was designed to afford an
employer and the voluntarily-recognized union a reasonable period to bargain
and reach an agreement. To constitute a bar, the employer's recognition must be
in good faith and based upon demonstrated majority support for the recognized
union, such as a verification of union authorization cards by an impartial
third party, at a time when only the recognized union was actively engaged in
seeking to organize the employees.
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