NLRB Imposes 'Successor Bar' and Defines a 'Reasonable Period' for Bargaining

Included among the three major decisions issued by the NLRB to mark the end of Chairman Wilma Liebman's term is one that will significantly affect the continuing majority status of incumbent unions in successorship situations. In UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011), the Board reinstated the "successor bar" doctrine, a Board-manufactured principle under which a union is conclusively presumed to retain its majority status when the employees whom it represents become employed by a new employer that is a successor.

To reach this result, the Board overturned MV Transportation, 337 NLRB 770 (2002), and took steps to minimize the impact of the Supreme Court's decision in NLRB v. Burns International Security Services, 406 U.S. 272 (1972). In MV Transportation, the Board declined to impose a successor bar, finding that to do so would promote the stability of a bargaining relationship to the exclusion of an employee's Section 7 right to free choice of a union representative. The current Board found flaws in the rationale of MV Transportation, concluding that an employee's Section 7 right to free choice is not unduly burdened by the successor bar for two reasons: (1) the important statutory policies served by a successor bar; and (2) the successor bar would continue only for a reasonable period of time, not indefinitely. In short, the Board's decision in UGL-UNICCO Service places a greater value on the protection of an incumbent union than it did on the protection of an employee's right to free choice under Section 7.

The successor bar doctrine applies (in pending representation cases and in future cases) where the successor employer has recognized an incumbent union, but the "contract bar" doctrine is inapplicable. In these situations, the incumbent union must be afforded a reasonable period of time for bargaining. During this reasonable period of bargaining, an employer, an employee, or a rival union may not challenge the incumbent union's majority status. Additionally, the employer may not unilaterally withdraw recognition from the union based on a claimed loss of majority support, regardless of whether the incumbent union lost majority support before or after the reasonable period for bargaining began.

The Board also used this case to define the period of time that constitutes a "reasonable period of bargaining." Where the successor employer "has expressly adopted existing terms and conditions of employment as the starting...