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.

Excerpt:

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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